Tri-Cnty. Metro. Transp. Dist. v. Amalgamated Transit Union, Case No. UP-035-20

Decision Date26 February 2021
Docket NumberCase No. UP-036-20,Case No. UP-035-20
PartiesTRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Complainant, v. AMALGAMATED TRANSIT UNION, DIVISION 757, (UP-035-20) Respondent. AMALGAMATED TRANSIT UNION, DIVISION 757, Complainant, v. TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, (UP-036-20) Respondent.
CourtOregon Employee Relations Board

(UNFAIR LABOR PRACTICE)

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

Jeffrey P. Chicoine and Matthew Tripp, Attorneys at Law, Miller Nash Graham & Dunn LLP, Portland, Oregon, represented Tri-County Metropolitan Transportation District of Oregon.

Whitney Stark, Attorney at Law, Albies & Stark, LLC, Portland, Oregon, represented Amalgamated Transit Union, Division 757.

On November 4, 2020, Tri-County Metropolitan Transportation District of Oregon (TriMet) filed an unfair labor practice complaint against Amalgamated Transit Union, Division 757 (ATU) (Case No. UP-035-20). The complaint alleged that ATU violated ORS 243.672(2)(b) by unlawfully including proposals containing permissive subjects of bargaining in its final offer over TriMet's objections and, thus, conditioning settlement of the parties' successor agreement on bargaining over these permissive subjects. TriMet requested that this Board expedite the complaint under OAR 115-035-0060.

On November 6, 2020, ATU filed an unfair labor practice complaint against TriMet (Case No. UP-036-20). The complaint alleged that TriMet violated ORS 243.672(1)(e) by engaging in direct dealing and surface bargaining. ATU opposed TriMet's request to expedite Case No. UP-035-20, requested that the Board consolidate the cases, and indicated that if we did so, ATU would agree to an expedited process that would allow the parties adequate time to prepare for a hearing.

On November 12, 2020, this Board issued a letter ruling consolidating and expediting the cases for hearing and decision. On November 16, 2020, we issued a prehearing order, which set forth the parties' agreed upon schedule. Also on that date, TriMet filed an amended complaint. Both parties filed timely answers to the complaints. The parties filed pre-hearing briefs on December 7, 2020. The parties jointly submitted a stipulated statement of issues and facts on December 11, 2020. The Board conducted a hearing on December 11, 14, 15, and 17, 2020, which included oral closing arguments. The record closed on December 17, 2020.

The issues as stipulated by the parties are:

1. Did ATU violate ORS 243.672(2)(b) by unlawfully including proposals containing permissive subjects of bargaining in its final offer over TriMet's objections and, thus, conditioning settlement of the parties' successor agreement on bargaining over these permissive subjects?

2. Did TriMet violate ORS 243.672(1)(e): (1) through the totality of its conduct during bargaining for a successor contract; or (2) by engaging in direct dealing with ATU-represented employees?

RULINGS

Neither party has raised any objections to this Board's rulings.

FINDINGS OF FACT

1. TriMet is a public employer under ORS 243.650(20).

2. ATU is a labor organization as defined in ORS 243.650(13) and is the exclusive representative of a bargaining unit of employees at TriMet. ATU bargaining unit employees work in several different TriMet departments, including transportation, maintenance, training, finance, and customer information services.

3. From December 1, 2016 to November 30, 2019, TriMet and ATU were parties to a collective bargaining agreement titled the Working and Wage Agreement (the "2016-2019 WWA"). The parties have had numerous prior agreements.

4. Kimberly Sewell is TriMet's Executive Director of Labor Relations and Human Resources. Laird Cusack is TriMet's Labor Relations Director and chief negotiator in successor bargaining.

5. Shirley Block is ATU's President. Krista Cordova is ATU's Labor Relations Coordinator. Whitney Stark is ATU's outside counsel. Block, Cordova, and Stark shared responsibility for leading negotiations for ATU in successor bargaining.

TriMet's Maintenance Department and Apprenticeship Programs

6. TriMet's Maintenance Department is responsible for maintaining and repairing various types of TriMet equipment, including buses, light rail vehicles, tracks, maintenance of way (MOW) equipment (such as signals), and field fare equipment. Some years ago, TriMet split the mechanics and other employees who are responsible for maintaining its facilities into a separate Facilities Maintenance Department. For ease of reference, we refer to those departments collectively as the "maintenance departments."

7. Bargaining unit employees in the maintenance departments include service workers, apprentices, journey workers, and assistant supervisors.

8. TriMet has offered apprenticeship programs in its maintenance departments for many years. Broadly speaking, apprentices are TriMet employees who receive a mix of on-the-job training and classroom instruction. They are paid collectively bargained-for wages for both their on-the-job and classroom training. When an apprentice successfully completes a program, the graduating apprentice is eligible to bid for journey worker positions in the maintenance departments.1

9. TriMet has two apprenticeship programs that are registered with the State of Oregon, which administers apprenticeship programs through the Bureau of Labor and Industries (BOLI). Registered apprenticeship programs in Oregon operate pursuant to ORS Chapter 660 and OAR Chapter 839, Division 11, as well as the National Apprenticeship Act, 29 USC Section 50, and 29 CFR Parts 29 and 30. 10. TriMet's registered apprenticeship programs train apprentices in a total of seven journey worker classifications or "occupations."

11. The TriMet Heavy Duty Bus Mechanic JATC program (registered as MA 1061) was approved in 1985 and trains apprentices in two occupations: Heavy Duty Bus Mechanic (a two-year program) and Plant Maintenance Mechanic (a four-year program, in which apprentices also earn their Limited Maintenance Electrical License through Portland Community College).

12. The second apprenticeship program is the TriMet Rail Maint/Vehi/Mech/Tech JATC program (MA 1078). It was registered in 1987 and trains apprentices in the following disciplines: Rail Vehicle Maintenance Tech (a three-year program); Traction Substation Tech (a three-year program); Overhead Catenary Tech (a three-year program); Signal Tech (a three-year program); and Field Equipment Tech (a two-year program). In this matter, the parties commonly referred to the Signal Tech program as the MOW program.

13. In Oregon, the State Apprenticeship and Training Council (SATC) approves and oversees registered apprenticeship programs. The SATC is a nine-member council comprised of the Commissioner of the Bureau of Labor and Industries and eight members appointed by the Governor. The SATC has the authority to develop, administer, and enforce statewide apprenticeship program standards for the operation and success of apprenticeship programs in the State of Oregon.

14. Each registered apprenticeship program in Oregon is overseen by its own Joint Apprenticeship Training Committee (JATC). An apprenticeship program's JATC is the policymaking and administrative body responsible for the operation and success of the program. Each TriMet JATC is comprised of eight members, including four TriMet management representatives and four non-management employee representatives. TriMet's Director of Training serves as the chair of the JATC.

15. Upon successful completion of a registered TriMet apprenticeship program, the apprentice receives a certificate of completion from the SATC and a journey certificate (colloquially referred to as a journey card) from the BOLI Apprenticeship and Training Division. The card identifies the card holder as a journey worker who has completed a registered apprentice program. A journey card is recognized by employers nationally as evidence that the worker possesses journey-level skill in the apprenticeable discipline. A journey card is therefore perceived as a valuable occupational qualification.

16. During the on-the-job training, apprentices perform work in the apprenticeable discipline under the supervision of journey workers. There are three models of apprenticeship programs: time-based, competency-based, or a hybrid of both. TriMet's apprenticeship programs currently use a time-based model. Under that model, apprentices must complete a specified number of on-the-job training hours to graduate from the program. Until then, after apprentices gain sufficient training and experience, they may perform their assigned tasks with less direct supervision, but journey workers still must review and sign off on their work. Under a competency-based model, after apprentices demonstrate competency in a particular work area, theapprentices may work independently (i.e., without supervision by journey workers) in that work area.

17. The TriMet JATC could modify various aspects of its apprenticeship programs, including by switching from a time-based model to a competency-based or hybrid model. However, because the apprenticeship programs are registered, such changes are subject to SATC/BOLI approval.

18. Generally, a registered apprenticeship program must meet state and national standards, and SATC/BOLI exercises oversight to ensure that registered programs meet those standards. However, a JATC may request SATC/BOLI approval for a "modification" of (i.e., or deviation from) the applicable standards. In some respects, TriMet's registered apprenticeship programs exceed state or national standards.

19. TriMet operates the classroom training component of its apprenticeship programs in conjunction with Mt. Hood Community College. Apprentices register for required classes through the Mt. Hood Community College web portal and receive credit from the college for their completed coursework. Apprentices do not pay tuition or fees for this...

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