Williams v. Amalgamated Transit Union, Div. 757, Case No. FR-001-20

• Decision Date: 14 April 2021
• Docket Number: Case No. FR-001-20
• Parties: WILLIAMS, Complainant, v. AMALGAMATED TRANSIT UNION, DIVISION 757, and TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Respondents.
• Court: Oregon Employee Relations Board

WILLIAMS, Complainant, v. AMALGAMATED TRANSIT UNION, DIVISION 757,andTRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Respondents.

Case No. FR-001-20

EMPLOYMENT RELATIONS BOARD OF THE STATE OF OREGON

April 14, 2021

(DUTY OF FAIR REPRESENTATION)

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

A hearing was held before Administrative Law Judge (ALJ) Martin Kehoe on November 19, 2020. The record closed on January 11, 2021, upon receipt of the parties' post-hearing briefs.

Dianna Dee Williams, Portland, Oregon, appeared pro se.

Krista Cordova, Attorney at Law, Portland, Oregon, represented the first Respondent, Amalgamated Transit Union, Division 757.

Ankur Doshi, Attorney at Law, Portland, Oregon, represented the second Respondent, the Tri-County Metropolitan Transportation District of Oregon.

On March 12, 2020, the Complainant, Dianna Dee Williams, filed an unfair labor practice complaint with the Employment Relations Board (Board) against the Respondents, the Amalgamated Transit Union, Division 757 (ATU) and the Tri-County Metropolitan District of Oregon (TriMet or District). In this phase of the case, the issue is whether ATU violated ORS 243.672(2)(a) and its duty to fairly represent Williams when it withdrew Williams' grievance, Grievance #9805. As set forth below, we conclude that it did not. Accordingly, we dismiss the complaint against both Respondents.

RULINGS

1. Here, as is the standard practice for duty of fair representation cases like this one, the ALJ correctly bifurcated the hearing and ruled that Williams must first prevail against her labor organization, ATU, before proceeding against her employer, TriMet. See Ralphs v. Oregon Public Employees Union, Local 503, SEIU, AFL-CIO and State of Oregon, Executive Department, Case Nos. UP-68/69-91 at 2, 14 PECBR 409, 410 (1993); Mengucci v. Fairview Training Center and Teamsters Local 223, Case Nos. C-187/188-83 at 13, 8 PECBR 6722, 6734 (1984). Accordingly, the November 19, 2020 hearing correctly only addressed Williams' ORS 243.672(2)(a) claim against ATU. The ALJ also correctly allowed TriMet's attorney to be present during the hearing and participate in it. Randolph v. International Alliance of Theatrical Stage Employees, Local B-20, and Metropolitan Exposition Recreation Commission, Case Nos. UP-15/16-92 at 3-4, 15 PECBR 85, 87-88 (1994), AWOP 134 Or App 414, 894 P2d 1267 (1995).

2. During the hearing, the ALJ admitted all of the exhibits presented except for Exhs. C-28 and C-29, which generally concern Williams' posttraumatic stress disorder (PTSD). After an objection from ATU and a discussion, Exhs. C-28 and C-29 were deemed legally irrelevant to the central issue of this case. (9:02 a.m., 12:49-12:57 p.m.) Upon further review, Exh. C-29 does appear to indicate that ATU representative Anthony Forrester (who was not called to testify) was at least aware of Williams' PTSD as of February 10, 2016. As detailed below, one of Williams' central arguments in this case is that Forrester treated Williams differently than other ATU members and withdrew Grievance #9805 because of an alleged dislike of Williams' personality, which Williams contends is linked with her PTSD. Nevertheless, we must conclude that the ALJ's ruling was correct, given Williams' ambiguous responses to ATU's objection and the ALJ's subsequent questioning. Additionally, Forrester's knowledge of Williams' PTSD is not particularly relevant here, as Forrester did not decide to withdraw Grievance #9805, and it is unknown whether Forrester played a meaningful role in ATU's decision-making process.

3. All other rulings made by the ALJ were reviewed and are also correct.

FINDINGS OF FACT

1. TriMet is a "public employer" within the meaning of ORS 243.650(20).

2. ATU is a "labor organization" within the meaning of ORS 243.650(13). It represents roughly 6,000 employees in total, and 28 different bargaining units. The bargaining unit most involved with this case is a group of approximately 2,635 TriMet employees with a wide range of positions. (1:52 p.m., 2:57 p.m.) ATU also represents employees who work for 27 other employers (i.e., "properties") besides TriMet. (1:07 p.m., 2:51 p.m.) 3. At all times material, ATU and TriMet have been parties to a collective bargaining agreement known as the "Working and Wage Agreement" (WWA). (Exh. J-1 at 1.) Among other things, the WWA includes a grievance and arbitration procedure with three formal "Steps." If ATU and TriMet cannot resolve a grievance at one of the initial Steps, known as Step 1 and Step 2, ATU can refer the grievance to the final Step, which is arbitration. (1:07 p.m., 1:54 p.m.) ATU can also withdraw (i.e., "close") a grievance at any stage.

4. Williams is a "public employee" within the meaning of ORS 243.650(19). She has been a TriMet employee since July 24, 1995. (Exhs. J-17, C-4.) At all times material, Williams has also been a member of ATU's TriMet bargaining unit.

5. In 2007, Williams became a Schedule Writer I, after applying, testing, and interviewing for the position. It was a promotion over her previous position at TriMet. Schedule Writer I was an ATU-represented position.

6. In 2008, a Schedule Writer II position became available. However, Williams did not apply for that position at the time. (11:13 a.m.) Schedule Writer IIs are also represented by ATU.

7. Schedule Writer I and Schedule Writer II are separate positions/classifications with their own duties and responsibilities. Schedule Writer IIs are also paid over $2 an hour more than Schedule Writer Is were. (11:11 a.m., 11:31 a.m., 2:40 p.m.) Broadly speaking, Schedule Writer IIs supervised and trained Schedule Writer Is, Schedule Writer Is more commonly went "into the field" and rode buses than Schedule Writer IIs do, and Schedule Writer IIs provide more "technical input" than Schedule Writer Is did. (10:02-10:03 a.m., 1:59 p.m., 2:40 p.m.) That said, both positions have involved some "schedule writing" and "field work," and shared certain minimum qualifications. (9:33 a.m., 2:40-2:43 p.m.)¹

8. Williams has never been a Schedule Writer II. (11:16 a.m.) Moreover, becoming a Schedule Writer II would be a promotion over Williams' current position and her old Schedule Writer I position. (Exh. J-4 at 2, 10:01 a.m., 10:17 a.m.)

9. On June 21, 2010, TriMet sent Williams a letter. It explained that the Schedule Writer I position was being eliminated in TriMet's 2010-2011 budget due to a "recession and revenue shortfall." (Exh. J-16 at 1.) The letter also noted that Williams was being returned to her "previous seniority class of Streetcar Operator" effective August 22, 2010. It then explained that an employee's return to the workgroup that he or she was being "bumped from" is governed by Article 1, Section 14, Paragraph 1 of the WWA. (Exh. J-16 at 1.) Subsequently, all three Schedule Writer Is were "laid off" from their Schedule Writer I positions. (9:25-9:27 a.m., 2:00 p.m., 2:48 p.m.) 10. Article 1, Section 14 of the WWA concerns layoffs. It provides,

"Par. 1. Employees' department seniority shall govern in laying off and reemployment of employees. Employees laid off because of lack of work shall be returned in the inverse order in which they were laid off, as the need for their classification, or classification of work, permits.

"Par. 2. If the District curtails the number of employees in any job, the employee with the least job seniority will be the first moved out of the job. That employee will then be entitled to exercise such job seniority s/he has on any other job in that department.

"Par 3. An employee subject to layoff who has no seniority in any other department will have preference over outside hires for any jobs that become available and for which the employee is qualified or can be trained within a reasonable period of time."

(Exh. J-1(a) at 1-2, emphasis in original)

11. Although the Schedule Writer I position was eliminated on August 22, 2010, and it remains so to date, the position is still referenced in the WWA. (9:28 a.m.)

12. When Williams' layoff occurred, ATU's elected president was Jonathan J. Hunt. Later, Hunt was succeeded by Bruce Hansen. (11:06 a.m.)

13. Williams and ATU did not file a grievance for her August 22, 2010 layoff, based on the advice of Williams' union representative. (11:07 a.m.) However, on or around June 5, 2011, ATU filed Grievance #8098 on Williams' behalf. In short, Grievance #8098 alleged that Schedule Writer I work was being performed by "planning personnel" and "lower seniority" Schedule Writer IIs. (Exh. J-21 at 1, 3:13 p.m.) It was regularly described as a "work out of classification" grievance. (Exh. J-21 at 4.)

14. On July 21, 2011, ATU and TriMet held a "prefiling conference" for Grievance #8098. On July 27, 2011, ATU sent TriMet a letter requesting a Step 2 hearing for the same. On October 13, 2011, ATU and TriMet held that Step 2 hearing. (Exh. J-21 at 3-4.)

15. On October 17, 2011, TriMet sent ATU and Williams a letter denying Grievance #8098. In essence, TriMet's letter asserted that Grievance #8098 was untimely and that there was no violation of the WWA. (Exh. J-21 at 1-5.)

16. On October 20, 2011, ATU sent TriMet a letter requesting a Step 3 grievance committee hearing regarding Grievance #8098. (Exh. J-21 at 6.)

17. In April 2014, a majority of ATU's membership voted against taking Grievance #8098 to arbitration, after ATU's executive board recommended the same following a vote. (Exh. J-21 at 13, 11:09 a.m.) 18. On June 4, 2014, ATU withdrew Grievance #8098 "without prejudice." (Exh. J-21 at 14.) Whenever ATU withdraws a grievance using the words "without prejudice," it does so to allow ATU and its members to file new grievances involving similar situations in the future. (1:11 p.m., 1:24 p.m.)

19. At some point "several years prior" to ATU's September 16, 2019 withdrawal of Williams' Grievance #9805 (which is addressed below), Williams started a "Union Brothers and Sisters" Facebook page....