06-01-2011 UP-016-11 (ULP # 1) ATU Post-Hearing Brief - TriMet

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Naomi Loo
Tedesco Law Group
14183 Taylor's Crest Lane
Lake Oswego, OR 97035
866-697-6015 ext.704
FAX: 503-210-9847
naomi@.miketlaw.com
Attorneys for Complainant
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BEFORE THE EMPLOYMENT RELATIONS BOARD
OF THE STATE OF OREGON
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AMALGAMATED TRANSIT UNION,
DIVISION 757,
Complainant,
V.
TRI-COLINTY METROPOLITAN
TRANSPORTATION DISTzuCT OF OREGON,
Respondent.
Case No. UP-016-l I
COMPLAINANT' S POST-HEARING
BzuEF
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I. PROCEDURAL HISTORY
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ATll filed this unfair labor practice complaint on August 11,2070, alleging that TriMet
had bargained in bad faith in violation of ORS 243.672(1)(e) by submitting new issues in its
post-impasse final offer. As a result of prehearing proceedings, the entire Board heard this case
in an expedited process on May 18, 2011. At the close of that hearing, the Board requested
follow-up briefing on certain limited issues.
II. FACTUAL BACKGROUND
Other than as specifically noted below, the Union will rely on its prior analysis of the
factual background, contained in its May 9.2011, Prehearing Brief, pages 2-8.
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III. DISCUSSION
The Board requested that the parties brief the following issues: 1) contrast TriMet's Final
Offer with its November 20,2009 proposal; 2) address whether communications between Fred
Hansen and Ron Heintzman afler the second and final bargair-ring session constituted bargaining;
3) if communications between Hansen and Heintzman constituted bargaining, discuss whether
TriMet's final offer logically evolved from any of those discussions; and 4) discuss the
appropriate remedy. Each of these questions will be discussed in turn.
A. TriMet's Proposal versus TriMet's Final Offer
The Union dedicated a good deal of its Prehearing Brief and its evidence to a comparison
of TriMet's proposal and its final offer. For efficiency's sake. rather than repeating its arguments
here, the Union refers the Board to its exhibit 33 and pages 8 and 11-16 of its Prehearing Brief.
In addition. the Union would like to address the concepthat portions of TriMet's final
offer constitute mere "housecleaning." None of the changes outlined in the Union's charls, at its
exhibit 33, constitute "housecleaning" items. Rather, each of those issues is a substantive change
to a term or condition of employment for ATU members. The Union concedes that some changes
in TriMet's final offer do constitute "housecleaning," such as renumbering paragraphs. However,
none of those "housecleaning" items were included in the Union's charts at exhibit 33, and the
Union likewise did not raise those changes as issues to be considered by this Board.
Another question that arose at the hearing is whether a party's final offer can logically
evolve from the other party's proposal(s). The Union does not believe that such reasoning would
be consistent with the Board's interpretation of good-faith bargaining under the PECBA,
parlicularly in the context of a strike-prohibited unit. As discussed in the Union's prehearing
brief, the pulpose of the requirementhat a final offer logically evolve from a party's proposal(s)
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is so that parties "put their proposal on the table in hopes of generating meaningful bargaining
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that will naffow the disagreement and lead to a settlement." Amalgctmated Transit Union,
Division 757 v. Rogue Valley Transportation Districf, Case No. UP-80 -95, 16 PECBR 707 , 710
(1996). In other words, proposals must be "subjected to the crucible of the PECBA's dispute
resolution process, if that process is to have any efficacy." Blue Mountain Faculty
Association/Oregon Education Association v. Blue Mountain CommuniQ College, Case No. UP-
22-05,21 PECBR 673 (2007)
Certainly one party can base a counter-proposal on the other parly's proposal, but this
must be done at the bargaining table so as to give the other party a meaningful chance to
respond. Indeed, such movement by one party towards the other party's bargaining position
would likely move the parties closer to an overall agreement. Such compromise is meaningless i
it is done after the parties have reached impasse-it denies the other pafty a chance to evaluate
and possibly change its own bargaining position based on the other party's movement. That is,
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basing a proposal on the other party's proposal would certainly constitute good faith bargaining
while the parties are still in the midst of the bargaining process; but to do so after bargaining has
ceased, with no prior hint that a party would have been willing to make such movement, is
meaningless. Not orily does it deny the other party a meaningful chance to respond, but it also
puts the party in a better position going into interest arbitration-if it's proposal is more
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reasonable, the interest arbitrator is more likely to selecthat party's proposal.
In Southern Oregon Bargaining Council/Rogue River Education Associarion v. Rogue
River School District, Case No. UP-62-09,23 PECBR 767 (2010), Chair Gamson concurring,
reconsid.23 PECBR 878 (2010), the employer made a proposal at mediation wl-rich the Board
concluded logically evolved frorn the parties' prior discussions because it "was directly
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responsive to the Association position that the partie should bargain about" this particular issue. I
In other words, the Board, without explicitly stating it, reasoned that one party's proposal may
logically evolve from the other party's prior proposals. However, it is important to note that
Rogue River was decided in the context of mediation, where the parties are still engaged in the
bargaining process. That is, both parties still have the opportunity to meaningfully respond
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other's proposals. Here, even if any of TriMet's Final Offer were found to have logically evolvedl
from ATU's proposal, TriMet made no effort to put those proposals on the table while the partiesl
were still bargaining.
The distinction between the mediation and the interest arbitration context is important
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at least two ways. First, in the context of interest arbitration, parties generally do not continue to II
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bargain after submission of their final offers, whereas in strike-permitted units, parties often
continue to bargain after declaring impasse.
In other words, the final offer is not merely another
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step in the bargaining process, like mediation-rather, final offers are submitted to an arbitrator I as the party's last position with the intent that this exact language will be included in the labor I agreement. There is no expectation that bargaining rvill continue at this stage in the process I
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Second, as already mentioned, the arbitrator in an interest arbitration selects one party's I
final offer in its entirety. Therefore, if a party is allowed to have a proposal in its final offer that II
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has not been "subjected to the crucible" of the bargaining process, the other party may have a
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term or condition of employment imposed upon it which it never had the opportunity to bargain. I
Such a result is contrary to the principals of the PECBA.
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For these reasons, TriMet's Final Offer must have logically evolved from its own
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proposal to the Union.
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B. Interim Communications Between Hansen and Heintzman
In its Prehearing Brief, pages 18-20, the Union discussed in detail why the interim
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communications between Hansen and Heintzman did not constitute bargaining. Suffice it to say,
not only was Heintzman not the Union's bargaining representative, he was not even formally
affiliated with the local at the relevant time and in fact was domiciled in Washington, D.C.-
facts of which Hansen was certainly aware. Hansen was also aware of the parties' ground rules,
that the Union was still operating under those rules, and that several of those rules clearly
indicate that the interim communications between Heintzman and Hansen were not bargaining.
It is worth emphasizing that there was nothing stopping TriMet from submitting a formal
proposal at the bargaining table, as required by the ground rules. Hansen admitted on cross
examination that he never requested a formal bargaining session after the December 3rd session
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was cancelled, even though it was TriMet, and not the Union, who wished to make substantive
changes to the parties' agreement. Even though Hansen's testimony on the subject was evasive,
he certainly was aware that TriMet had to make formal bargaining proposals at the bargaining
table, where proposed language could be explained to the entire bargaining team.
C. Logical Evolution from Interim Communications
The Union previously addressed the question of whether any portion of TriMet's Final
Offer logically evolved from any of Hansen's communications with Heintzman at pages 2022
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of its Prehearing Brief. In the hopes of further illustrating that TriMet's Final Offer does not
logically evolve from those interim communications, the same information is presented below in
chart form.
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Hansen/Fleintzman
Communications
TriMet Final Offer
NONE
.ILRC meetinss.
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Article I. Section 9. Parasranhs 1.2.3. and 5 (Active Emplovee Health Benefits
Summarv & Summary Plan Descriptions):
Hansen/fleintzman
Communications
TriMet Final Offer
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Adopt the Lane
Transit District Plan
(C. Ex.22;
Prehearing Brief at
20, lines 10-29).
"ourgoal... isthat
the health care plan
design...be
consistent for both
union and
management
employees" (C. Ex.
25;Prehearing Brief
at2T,lines 11-21);
(C.Ex.26;
Prehearing Brief at
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P Retains Regence, but changes plans/benefits, outof-pocket
expenses, and employee contributions.
F Retains Kaiser, but changes plans/benefits and
out-of-pocket expenses.
) Employees retiring after 4l7ll2 will receive
coverage for 3 years or until Medicare-eligible,
whichever occurs first. Once Medicare eligible,
TriMet will provide $500 per month per eligible
person, as opposed to reimbursing for actual
costs.
} Employees hired after 4l1ll1, once vested and
retired, will receivd a sliding scale contribution
from TriMet for health and welfare benefits for
the employee and spouse based on years of
service. The sliding scale contribution is equal to
4Yo of fixed contribution upon retirement
multiplied by years in service.
) TriMet will pay ATU only 5500 per month for the
benefits coordinator (versus current $ 1400 per
month). TriMet will have the right to audit ATU's
usage of the funds and cease $500 monthly
payment should TriMet find that ATU misused
funds.
i TriMet will cap its annual contribution to the
ATU-operated employee assistance program at
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565,000, versus a $2,000 annual increase to
$67,000, $69,000, and $71,000 under current
CBA.
F Adds domestic partners to retiree coverage and
sick leave.
Article I. Section 19, Paragraph 4 (Recreation Trust Fund):
Hansen/fleintzman
Communications
TriMet Final Offer
TriMet will cap its annual contribution to the
Recreation Trust Fund to $55,000, versus an annual
NONE ; b2,000 increase to $57,000, $59,000, and $61,000
under the current CBA.
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Hansen/Heintzman
Communications
|{ONE/UNCLEAR
F Wage freeze (C. Ex.
22;Prehearing Brief
ar2l. lines l-10).
TriMet Final Offer
Deletes minimum progression pay schedule for new
rures.
Retain COLA with a minimum of yyo and a
maximum of 5oh.
periodic pay'
adjustments during
the term of the new
WWA in lieu of any
COLA's" (C.E.x.27,
par. 3).
Pension Plan and Permanent Disability Agreement, Section I, Paragraphs 2-17:
Hansen/Heintzman
Communications
TriMet Final Offer
.,. . . all new union ) Deletes references to "full" retirement benefits.
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employees, hired after a
certain date, to be agreed
upon, will be eligible for
a TriMet Defined
Contribution Plan." (C.
Ex.27.par.2)
F A 3O-year employee must be at least 55 years old
to retire; in the past, no minimum age so long as
employee had 30 years of service.
i Adds the requirementhat a mini-run operator
have a minimum of 2 years of service as a fulltime
regular operator before becoming eligible for
full time retirement benefits.
). Changes retirement pay for current retirees to
annual COLA adjustment pegged to national CPI-
W but not to exceed 7o/o per year.
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> $42.00 per month per year served basis will only
apply to active employees hired before 4lIl12.
> All employees who retire after 4lllll wili receive
retirement pay equal to annual COLA adjustment
pegged to 90oh of national CPI-W but not to
exceed 7o/operyear.
) Active employees hired on or after 4l1ll2 will be
' eligible for and participate in a Defined
Contribution Plan that non-union TriMet
employees participate in (versus a pension plan,
which is a Defined Benefit Plan).
As demonstrated by these charts and the Union's Prehearing Brief, the portions of
TriMet's Final Offer outlined above are either completely absent from the interim
communications, discussed in a vague and general tnanner, or discussed in a way that was not
reasonably comprehended within TriMet's final offer.
D. Remedy
Although the Union briefly discussed the issue of remedy in its Prehearing Brief, at p
24-25, some elaboration is in order. There does not appear to be any dispute that the Board I
at the entire Final Offer and determines whether all aspects of the Final Offer logically evolve
from TriMet's proposal. In other words, if any portion of TriMet's Final Offer does not logically
evolve from its proposal, the remedy would be to take the parties back to the submission of their
final offers. TriMet should be ordered to revise its Final Offer to include only those items that" in
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the Board's opinion, underwenthe "crucible of bargaining." It seems most appropriate for the
Board to be explicit in its opinion about which, if any, of TriMet's Final Offer items logically
evolved from bargaining, and then order TriMet to change those items and resubmit its Final
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Offer accordingly.
IV. CONCLUSION
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For the reasons set forth above, ATU is seeking an order that TriMet withdraw its final
offer and replace it with one that logically evolves from its November 20,'2009 proposal, and all
other relief the Board deems appropriate.
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DATED tiris i5* dav of June. 2011.
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Naomi Loo, OSM',J o. 08122
Tedesco Law Gfoup
14183 Taylor's Crest Lane
Lake Oswego, OR 97035
866-697-6015 ext. 704
FAX: 503-210-9847
naomi@miketlaw.com
Attorneys for Complainant
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