Fact Check: Split-Shift Travel Time
On October 26, 2016, U.S. Magistrate Judge Paul Papak entered an order on a class action wage and hour settlement involving TriMet and various plaintiffs, all of whom are current or former TriMet union employees. The ATU was not party to the lawsuit.
Claims in the lawsuit included whether split-shift travel time should be paid time. The settlement agreement dismisses all claims that arose prior to July 1, 2016, and precludes the filing of new claims regarding the issues raised in the lawsuit until the Judgment becomes final on November 25, 2016. Paying split-shift travel time is not required by the terms of the settlement and the issue is not covered by the collective bargaining agreement. However, due to ambiguities in the law, which calls into question the past practice, TriMet now intends to begin paying Operators for split-shift travel time since the finalized settlement agreement.
Many TriMet Operators work split shifts that consists of two pieces of work in a single day's work. Often the end of the first piece of work is at a different location than the beginning of the second piece of work. In between the two pieces of work, Operators are free to use the time off for their own personal use, such as rest, personal appointments or shopping. Unless paid straight through because the split between pieces of work is less than an hour, TriMet and the ATU have operated for decades on the premise that none of the time between splits is paid time.
On September 9, 2016, TriMet notified ATU that it intended to begin paying Operators for split-shift travel time. The ATU did not respond to the proposal until October 11, 2016.
The ATU has taken the position that it timely demanded to bargain the issue of split-shift travel time. Conversely, the ATU also claims this issue may be bargained only through successor contract bargaining and not through Oregon's Public Employee Collective Bargaining Act (PECBA) mid-term, expedited bargaining process.
The collective bargaining agreement between TriMet and the ATU expires on November 30, 2016. In late September 2016, the parties notified each other of their desire to bargain a successor contract, however there have been no bargaining sessions and the parties have not exchanged proposals. In fact, the ATU cancelled a scheduled bargaining session for November 10, and ATU has declined to bargain at least until January 9, 2017.
We set the record straight.
The ATU claims it timely demanded to bargain TriMet's proposal to begin paying Operators split-shift travel pay.
False. On September 9, 2016, TriMet notified ATU about the wage and hour settlement agreement and proposed to begin paying split-shift travel time. At the same time, TriMet also proposed eliminating the closely related road relief allowance, which is paid for the inconvenience of working split shifts. The ATU did not respond until October 6, 2016. ORS 243.698 provides that when an employer proposes a change in a mandatory subject of bargaining during the term of a collective bargaining agreement, the union has 14 days within which to demand bargaining. If the union fails to timely demand to bargain, then it waives its right to bargain over the change or the impact of the change identified in the notice. The ATU responded 27 days later, but by then had waived its right to bargain TriMet's proposal to begin paying split-shift travel time.
The ATU claims that TriMet's proposal to begin paying split-shift travel pay can only be addressed during successor contract bargaining and not through PECBA's mid-term, expedited bargaining statute, ORS 243.698.
False. ORS 243.698 provides for an expedited bargaining process when a proposal regarding a mandatory subject of bargaining, like pay for split-shift travel time, arises during the term of an existing collective bargaining agreement. In such cases, the statute provides for a 90-day period after notice within which to bargain the issue. If the issue is not bargained to settlement within 90 days, then resolution for strike-prohibited bargaining units is through binding interest arbitration. This streamlined, single-issue process is much faster than the 150-day period for successor contracts found in ORS 243.712(1).
In early September, TriMet notified ATU it wanted to begin paying Operators for split-shift travel time as quickly as payroll system programming could be completed. TriMet said time was of the essence because the wage and hour settlement covered only a defined period of time. TriMet wanted to take prudent action to address ambiguities in the law before Judge Papak's Order took effect.
Because ATU failed to timely demand to bargain, it waived its right to bargain either the decision or the impact of paying Operators for split-shift travel time under PECBA. Even so, on October 11, 2016, TriMet offered to bargain the split-shift travel time issue under the mid-term bargaining statute. On October 12, 2016, ATU rejected that offer. On October 13, 2016, and based upon ATU rejection of expedited bargaining, TriMet said it would move forward with split-shift travel pay. TriMet also informed the ATU that it would wait until successor bargaining to address eliminating the road relief allowance.
On October 26, ATU claimed it had not failed to demand to bargain this issue and inferred that the expedited bargaining statute did not apply because the parties had already opened negotiations for a successor agreement. However, when TriMet gave notice of its proposal to pay split-shift travel time, neither party had notified the other of their desire to bargain a successor contract. In addition, ATU threatened an Unfair Labor Practice complaint if TriMet began paying its Operators additional pay for split-shift travel time. This threat is curious given that the plaintiffs in the wage and hour class action lawsuit were all current or former TriMet union employees, and they had alleged such payments were required by law.
On November 2, 2016, TriMet provided the ATU a copy of Judge Papak's just-signed October 26, 2016 Order Granting Plaintiffs' Motion for Final Approval of Settlement Agreement; and Judgment, as ATU requested. TriMet reminded the ATU that the existing contract was still in effect, there had been no successor bargaining sessions and the parties had not exchanged proposals. Citing case law, TriMet stated that the mid-term bargaining process was the appropriate way to address the split-shift travel time. Mid-term bargaining is even more appropriate since, after the parties later expressed a desire to bargain a successor contract, ATU cancelled a November 10, 2016 bargaining session and declared it would not begin bargaining until at least until January 9, 2017.
On November 7, 2016, the ATU expressed a willingness to set a date to bargain split-shift travel time. As requested, TriMet offered bargaining dates and sought to clarify that this would be mid-term bargaining under ORS 243.698. Unfortunately, on November 9, 2016, ATU retrenched and reasserted its earlier position that any resolution of split-shift travel time must be handled in successor bargaining.
TriMet summarized its position in a November 15, 2016 letter. First, the ATU's Nov. 7 demand to bargain split-shift travel was untimely. Even so, TriMet offered to bargain it under the applicable PECBA provision, the mid-term bargaining statute, which the ATU rejected. Given ATU's refusal to engage in mid-term bargaining, as well as its untimely demand to bargain, TriMet stated that the ATU has waived its right to bargain over this issue.
Therefore, TriMet stated that it intends to begin paying Operators for split-shift travel pay as soon as possible, without changing or affecting any current provision in the collective bargaining agreement, such as the road relief allowance. TriMet will:
- manually calculate and make a lump sum retroactive payment on Dec. 14 for the period beginning July 1, 2016
- manually calculate and pay split-shift travel pay each pay period thereafter
- automatically calculate and pay split-shift travel pay beginning with the Spring Sign-Up for Operators.
TriMet reiterated that that split-shift travel time will not be included in calculating the 30-hour weekly limit for part-time Mini-Run Operators.
Given the legal ambiguities associated with split-shift travel time, TriMet believes it is prudent to begin paying this as soon as possible and finds it disappointing that the ATU would object to additional pay for its members under such circumstances.
TriMet’s insistence on bargaining mid-term under the expedited bargaining process stems from the lengthy time it has taken to enter into new contracts. The 2003-09 contract expired on November 30, 2009, but the successor 2009-12 contract was not resolved until September 2012 through interest arbitration, just three months before it expired. The current 2012-16 contract was not ratified until November 2014, two years after the effective date of the contract.