Omnitrans (PERB 2143M)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
AMALGAMATED	AMALGAMATED TRANSIT UNION	TRANSIT UNION
LOCAL 1704,	LOCAL 1704,
Charging Party,	Charging Party,
V.V.
OMNITRANS,	OMNITRANS,
Respondent.	Respondent.
Case No. LA-CE-427-M	Case No. LA-CE-427-:t'v1
PERB Decision No. 2143-M	PERB Decision No. 2143-M
November 18, 2010	November 18, 2010
Appearances:	Appearances: Neyhart, Anderson, Flynn & Grosboll by William J. Flynn, Attorney, for	Neyhart, Anderson, Flynn & Grosboll by William J. Flynn, Attorney, for
Amalgamated Transit Union Local 1704; County of San Bernardino by Carol A. Greene,	Transit Union Local 1704; County of San Bernardino by Carol A. Greene,
Deputy County Counsel, for Omnitrans.	Deputy County Counsel, for Omnitrans.
Amalgamated
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.	Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.
DECISION	DECISION
WESLEY, Member: This case is before the Public Employment Relations Board	WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both the Amalgamated Transit Union Local 1704	(PERB or Board) on exceptions filed by both the Amalgamated Transit Union Local 1704
(ATU) and Omnitrans to the proposed decision (attached) of an administrative law judge(ATU) and Omnitrans to the proposed decision (attached) of an administrative law judge
(ALJ). The ALJ found that Omnitrans unlawfully bypassed ATU in violation of the Meyers-	(ALJ). The ALJ found that Omnitrans unlawfully bypassed ATU in violation of the Meyers-
Milias-Brown Act (MMBA)' by establishing a Focus Group to consider changes to the bidding	Milias-Brown Act (MMBA) 1 by establishing a Focus Group to consider changes to the bidding
procedures for Extra Board (EB) drivers. The ALJ dismissed the allegation that Omnitrans	procedures for Extra Board (EB) drivers. The ALJ dismissed the allegation that Omnitrans
unilaterally changed the parties' grievance procedure when it rejected a grievance regardingunilaterally changed the parties' grievance procedure when it rejected a grievance regarding
the creation of the Focus Group. The ALJ also denied ATU's request for attorney's fees and	the creation of the Focus Group. The ALJ also denied ATU's request for attorney's fees and
costs associated with Omnitrans' late decision to appear by telephone at the informal	costs associated with Omnitrans' late decision to appear by telephone at the informal
1
MMBA is codified at Government Code section 3500 et seq. Unless otherwise	MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.	indicated, all statutory references herein are to the Government Code.

vacation
2
settlement conference. Finally, the ALJ denied two motions filed by ATU to amend the	settlement conference. Finally, the ALJ denied two motions filed by ATU to amend the
complaint to add additional allegations.	complaint to add additional allegations.
The Board has reviewed the proposed decision and the record in light of the parties'	The Board has reviewed the proposed decision and the record in light of the parties'
exceptions, responses, and the relevant law. Based on this review, on the issues of bypassing,	exceptions, responses, and the relevant law. Based on this review, on the issues of bypassing,
attorneys fees and the motions to amend the complaint, the Board finds the proposed decision	attorneys fees and the motions to amend the complaint, the Board finds the proposed decision
to be a correct statement of the law and well reasoned and, therefore, adopts those portions of	to be a correct statement of the law and well reasoned and, therefore, adopts those portions of
the proposed decision as the decision of the Board itself. On the issue of unilateral change of	the proposed decision as the decision of the Board itself. On the issue of unilateral change of
the grievance procedure, the Board reverses the ALI' s dismissal of this allegation and finds an	the grievance procedure, the Board reverses the ALJ's dismissal of this allegation and finds an
unlawful unilateral change in violation of the MMBA.	unlawful unilateral change in violation of the MMBA.
BACKGROUND	BACKGROUND
Omnitrans is a public agency that provides bus service in several southern California	Omnitrans is a public agency that provides bus service in several southern California
communities. ATU is the recognized employee organization of drivers employed by	communities. ATU is the recognized employee organization of drivers employed by
Omnitrans, including regular full-time, regular part-time and relief drivers.	Omnitrans, including regular full-time, regular part-time and relief drivers.
2
The regular and relief drivers participate in three shift bid periods per year. During any	The regular and relief drivers participate in three shift bid periods per year. During any
of these bid periods, a driver may make an additional bid to be placed on the EB roster to cover	of these bid periods, a driver may make an additional bid to be placed on the EB roster to cover
unfilled assignments for last minute and pre-planned absences such as sick leave, jury duty or	unfilled assignments for last minute and pre-planned absences such as sick leave, jury duty or
vacation.2.
Prior to the dispute in this case, EB assignments were made based on a rotation of	Prior to the dispute in this case, EB assignments were made based on a rotation of
drivers on the EB roster. After receiving an EB assignment, the driver's name would move to	drivers on the EB roster. After receiving an EB assignment, the driver's name would move to
the bottom of the list. Instead of retyping the list each day, however, an arrow moved down	the bottom of the list. Instead of retyping the list each day, however, an arrow moved down
the list to indicate which driver was next on the assignment roster. Drivers could check the	the list to indicate which driver was next on the assignment roster. Drivers could check the
position 	the arrow to help	position of the arrow to help them anticipate when they might be called for an EB assignment,	anticipate 	might be called 	an
An EB assignment lasting a week or more is called a "hold-down." Hold-down	An EB assignment lasting a week or more is called a "hold-down." Hold-down
bidding procedures are separate from other EB assignments and are not at issue in this matter.	bidding procedures are separate from other EB assignments and are not at issue in this matter.

3
and what route they would possibly be given. Route assignments differ with respect to length	and what route they would possibly be given. Route assignments differ with respect to length
of the route, amount a driver is paid, whether or not a break is allowed during the route, and	of the route, amount a driver is paid, whether or not a break is allowed during the route, and
other variables.	other variables.
Omnitrans established the Cultural Design Team (CDT) in April 2007, to listen to the	Omnitrans established the Cultural Design Team (CDT) in April 2007, to listen to the
concerns of all employees within Omnitrans and to try to solve problems. The CDT included	concerns of all employees within Omnitrans and to try to solve problems. The CDT included
representatives from various Omnitrans departments, and included bus drivers and ATU	representatives from various Omnitrans departments, and included bus drivers and ATU
officers. The CDT discussed various issues affecting each department.'	officers. The CDT discussed various issues affecting each department.3
At some point, drivers expressed concerns to the CDT 'that the EB procedures were	At some point, drivers expressed concerns to the CDT that the EB procedures were
difficult to understand, and should be modified to be more flexible and fair to all drivers.	difficult to understand, and should be modified to be more flexible and fair to all drivers.
Based on these complaints, Omnitrans formed the Focus Group to explore possible changes to	Based on these complaints, Omnitrans formed the Focus Group to explore possible changes to
the EB procedures. The Focus Group consisted of Omnitrans management,4 senior and junior	the EB procedures. The Focus Group consisted of Omnitrans management," senior and junior
drivers (including ATU Executive Board Member, Curtis Wilkerson), a dispatcher, and an	drivers (including ATU Executive Board Member, Curtis Wilkerson), a dispatcher, and an
outside facilitator. After conducting three meetings between December 2007 and February	outside facilitator. 	After conducting three meetings between December 2007 and February
5
2008," and surveying employees about their preferences, the Focus Group presented a	2008, 	and surveying employees about their preferences, the Focus Group presented a
recommendation to the CDT. The Focus Group recommended that the EB procedures be	recommendation to the CDT. The Focus Group recommended that the EB procedures be
changed from the arrow rotation system to bidding for assignments by seniority.	changed from the arrow rotation system to bidding for assignments by seniority.
In a June 12, 2008 memo to ATU President Dale Moore (Moore), Graham offered to	In a June 12, 2008 memo to ATU President Dale Moore (Moore), Graham offered to
meet and confer regarding any negotiable aspects identified by ATU, of the proposed revisions	meet and confer regarding any negotiable aspects identified by ATU, of the proposed revisions
The CTD was referenced in the instant charge, however, its formation was not alleged	The CTD was referenced in the instant charge, however, its formation was not alleged
as an unfair practice. At hearing, ATU's request to amend the complaint to include this	as an unfair practice. At hearing, ATU' s request to amend the complaint to include this
allegation was denied by the ALJ on the basis of timeliness.	allegation was denied by the ALJ on the basis of timeliness.
4
*Director of Operations, Paul Graham (Graham); East Valley Transportation Manager,	Director of Operations, Paul Graham (Graham); East Valley Transportation Manager,
Doug Stanley; and Dispatch Supervisor, Scott Huffman.	Doug Stanley; and Dispatch Supervisor, Scott Huffman.
5
The proposed decision states on page 8 that the Focus Group held approximately ten	The proposed decision states on page 8 that the Focus Group held approximately ten
meetings. However, the evidence reflects that the Focus Group held meetings on December 6,	meetings. However, the evidence reflects that the Focus Group held meetings on December 6,
2007, January 30, 2008, and February 13, 2008. This difference does not affect the outcome or	2007, January 30, 2008, and February 13, 2008. This difference does not affect the outcome or
analysis.	analysis.
3

to the EB bidding procedures. Ultimately, the parties did not meet after ATU insisted oto the EB bidding procedures. Ultimately, the parties did not meet after ATU insisted on
negotiating the entire scope of EB matters.	negotiating the entire scope of EB matters.
n
On September 2, 2008, Omnitrans issued a new procedure for EB assignments, to be	On September 2, 2008, Omnitrans issued a new procedure for EB assignments, to be
effective September 12, 2008, wherein the arrow rotation was replaced by seniority bidding for	effective September 12, 2008, wherein the arrow rotation was replaced by seniority bidding for
EB assignments."	EB assignments. 6
On December 5, 2007, ATU President Moore filed a grievance contesting the formation	On December 5, 2007, ATU President Moore filed a grievance contesting the formation
of the EB Focus Group. 7 The grievance cited violations of several MOU articles, including	of the EB Focus Group.' The grievance cited violations of several MOU articles, including
Article 2, Exclusive Representative, and Article 9, Employee Rights. 8 As a remedy, the	Article 2, Exclusive Representative, and Article 9, Employee Rights. As a remedy, the
grievance requested that Omni trans cease attempts to bargain directly with ATU bargaininggrievance requested that Omnitrans cease attempts to bargain directly with ATU bargaining
unit employees and recognize ATU as the exclusive representative of the bus operators.unit employees and recognize ATU as the exclusive representative of the bus operators.
Article 2 states, in relevant part:	Article 2 states, in relevant part:
A. 	The Agency agrees that it shall recognize Amalgamated	A. The Agency agrees that it shall recognize Amalgamated
Transit Union Local 1704 as the exclusive representative of all	Transit Union Local 1704 as the exclusive representative of all
Coach Operators of the Agency in said unit for the purpose of	Coach Operators of the Agency in said unit for the purpose of
meeting its obligations under Meyers-Milias-Brown Act,	meeting its obligations under Meyers-Milias-Brown Act,
Government Code 3500, etc. [sic] seq., and Employee Relations	Government Code 3500, etc. [sic] seq., and Employee Relations
Resolution when Agency's rules, regulations, or laws affecting	Resolution when Agency's rules, regulations, or laws affecting
wages, hours or other terms and conditions of employment are	wages, hours or other terms and conditions of employment are
amended or changed.	amended or changed.
After the hearing concluded, ATU submitted a motion to amend the complaint to	After the hearing concluded, ATU submitted a motion to amend the complaint to
allege that Omnitrans unilaterally implemented new EB procedures. This motion was also	allege that Omnitrans unilaterally implemented new EB procedures. This motion was also
denied by the ALJ.	denied by the ALJ.
7
The proposed decision makes note of a separate grievance filed by ATU Vice	The proposed decision makes note of a separate grievance filed by ATU Vice
President, Jeff Caldwell (Caldwell), on December 10, 2007, regarding concerns about the EB	President, Jeff Caldwell (Caldwell), on December 10, 2007, regarding concerns about the EB
bidding procedures. Rather than processing his grievance, Omnitrans referred Caldwell to the	bidding procedures. Rather than processing his grievance, Omnitrans referred Caldwell to the
Focus Group to address his concerns. This grievance is not referenced in the complaint or	Focus Group to address his concerns. This grievance is not referenced in the complaint or
ATU' s cross exceptions and, therefore, is not discussed herein.	ATU's cross exceptions and, therefore, is not discussed herein.
8
Additional MOU sections alleged to have been violated include: Article 1, Preamble;	Additional MOU sections alleged to have been violated include: Article 1, Preamble;
Article 3, Warranty of Capacity; Article 5, Sole and Entire Memorandum of Understanding;	Article 3, Warranty of Capacity; Article 5, Sole and Entire Memorandum of Understanding;
Article 37, Overtime Pay; and Article 42, Seniority and Work Assignment.	Article 37, Overtime Pay; and Article 42, Seniority and Work Assignment.
4

Article 9 states, in relevant part:	Article 9 states, in relevant part:
All	All employees shall have the following rights:	employees shall have the following rights:
C. The right to be represented by the exclusive recognized	C. The right to be represented by the exclusive recognized
employee organization . . . .	employee organization ....
(Underlining in original.)	(Underlining in original.)
Article 22 sets forth the grievance procedure.	Article 22 sets forth the grievance procedure.
A.	A. 	A grievance is defined as:	A grievance is defined as:
1.	1. An alleged violation or noncompliance with the provisions of	An alleged violation or noncompliance with the provisions of
this M.O.U., the Agency's written personnel rules and	this M.O.U., the Agency's written personnel rules and
regulations,	regulations, or department rule[s] and regulations. No policy or	or department rule[s] and regulations. No policy or
practice can violate a written term of the M.O.U.	practice can violate a written term of the M.O.U.
2.	2. It is further agreed that this grievance procedure will apply to	It is further agreed that this grievance procedure will apply to
any alleged violation of noncompliance with the provisions of the	any alleged violation of noncompliance with the provisions of the
M.O.U., the Agency's written personnel rules and regulations,	M.O.U., the Agency's written personnel rules and regulations,
department rules and regulations unless otherwise agreed by the	department rules and regulations unless otherwise agreed by the
parties. No policy or practice can violate a written term of the	parties. No policy or practice can violate a written term of the
M.O.U.	M.O.U.
(Underlining in original.)	(Underlining in original.)
Omnitrans rejected the December 5, 2007 grievance on several grounds, including that	Omnitrans rejected the December 5, 2007 grievance on several grounds, including that
Moore had filed the grievance on behalf of ATU, not as an aggrieved employee, and therefore	Moore had filed the grievance on behalf of ATU, not as an aggrieved employee, and therefore
he did not have standing to file the grievance. Omnitrans asserted in correspondence dated	he did not have standing to file the grievance. Omnitrans asserted in correspondence dated
December 6, 2007, December 11, 2007, and January 23, 2008, that a grievance submitted by	December 6, 2007, December 11, 2007, and January 23, 2008, that a grievance submitted by
ATU on its own behalf is invalid under Article 22. Moore's subsequent request to submit the	ATU on its own behalf is invalid under Article 22. Moore's subsequent request to submit the
grievance to arbitration was rejected on the same grounds.	grievance to arbitration was rejected on the same grounds.
DISCUSSION	DISCUSSION
Bypass	Bypass
r
5
In its exceptions to the proposed decision, Omnitrans asserts the ALJ erred in her	In its exceptions to the proposed decision, Omnitrans asserts the ALJ erred in her
reliance on PERB case law regarding work groups, and renews its argument that County of	eliance on PERB case law regarding work groups, and renews its argument that County of
5

Fresno (2004) PERB Decision No. 1731-M 	finds	Fresno (2004) PERB Decision No. 1731-M (County of Fresno) is controlling. The Board finds	(County of Fresno) is controlling. The Board
the ALJ properly distinguished County of Fresno from the instant case. In County of Fresno,	the ALJ properly distinguished County of Fresno from the instant case. In County of Fresno,
the parties specifically negotiated an acknowledgement of the working group and agreed that	the parties specifically negotiated an acknowledgement of the working group and agreed that
bargaining would occur if the county intended to make any changes based on	bargaining would occur if the county intended to make any changes based on
recommendations from the working group. In the present case, there was no prior agreement	recommendations from the working group. In the present case, there was no prior agreement
between Omni trans and ATU regarding the formation of the employee Focus Group or the	between Omnitrans and ATU regarding the formation of the employee Focus Group or the
promise that changes arising out of the Focus Group's recommendations would be bargained.	promise that changes arising out of the Focus Group's recommendations would be bargained.
The ALJ also correctly held that the MOU's management rights provision did not clearly and	The ALJ also correctly held that the MOU's management rights provision did not clearly and
unmistakable waive ATU's right to bargain work assignment bidding procedures.	unmistakably waive A TU' s right to bargain work assignment bidding procedures.
Accordingly, the Board concurs in the ALJ's determination that Omnitrans bypassed ATU	Accordingly, the Board concurs in the ALJ's determination that Omnitrans bypassed ATU
when it dealt directly with employees to modify existing policies by meeting with employees	when it dealt directly with employees to modify existing policies by meeting with employees
through the Focus Group to develop changes to the EB procedures, surveying employees on	through the Focus Group to develop changes to the EB procedures, surveying employees on
their preferences for proposed bidding procedures, and by making a recommendation for	their preferences for proposed bidding procedures, and by making a recommendation for
changes to the CDT. (Walnut Valley Unified School District (1981) PERB Decision No. 160	changes to the CDT. (Walnut Valley Unified School District (1981) PERB Decision No. 160
(Walnut Valley).)	(Walnut Valley).)
Grievance Procedure	Grievance Procedure
ATU excepted to the ALJ's dismissal of the allegation that Omnitrans unilaterally	ATU excepted to the ALJ's dismissal of the allegation that Omnitrans unilaterally
changed the grievance procedure when it denied a grievance, in part, on the basis that ATU was	changed the grievance procedure when it denied a grievance, in part, on the basis that A TU was
not authorized to file a grievance on its own behalf.	not authorized to file a grievance on its own behalf.
Unilateral changes are considered "per-se" violations if certain criteria are met. Those	Unilateral changes are considered "per-se" violations if certain criteria are met. Those
criteria are: (1) the employer breached or altered the parties' written agreement or its own	criteria are: (1) the employer breached or altered the parties' written agreement or its own
established past practice; (2) such	established past practice; (2) such action was taken without giving the other party notice or an	was taken 	the other 	notice or an
opportunity to bargain over the change; (3) the change was not merely an isolated breach of the	opportunity to bargain over the change; (3) the change was not merely an isolated breach of the
contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing	contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing
6

impact upon bargaining unit members' terms and conditions
of
employment);	impact upon bargaining unit members' terms and conditions of employment); and (4) the	and (4)
the
change in	change in policy concerns a matter within the scope of representation. (Vernon Fire Fighters	policy concerns a matter within the scope ofrepresentation. (Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802;	v. City of Vernon (1980) 107 Cal.App.3d 802; Walnut Valley; San Joaquin County Employees	Walnut Valley; San Joaquin County Employees
Assn.
v.
City
of
Stockton (1984)
161
Cal.App.3d	Assn. v. City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District	813; Grant Joint Union High School District
(1982) PERB Decision No. 196.)	(1982) PERB Decision No. 196.)
ATU argues that Omnitrans unilaterally changed the grievance procedure when it	ATU argues that Omnitrans unilaterally changed the grievance procedure when it
refused to process the December 5, 2007 grievance regarding the formation
of
the Focus	refused to process the December 5, 2007 grievance regarding the formation of the Focus
Group. Omnitrans repeatedly rejected ATU's request to submit the grievance to the formal	Group. Omnitrans repeatedly rejected
ATU's
request to submit the grievance to the formal
grievance procedure, stating, in writing, that a grievance	grievance procedure, stating, in writing, that a grievance submitted by ATU on its own behalf,	submitted by ATU on its own behalf,
as opposed to by an employee, is not valid under the grievance procedure. 9
as opposed to by an employee, is not valid under the grievance procedure."
In a prior case between Omnitrans and ATU, involving the same language in Article 22	In a prior case between Omnitrans and A TU, involving the same language in Article 22
of
the parties' MOU, the	of the parties' MOU, the Board considered whether ATU had the right to file a grievance on its	Board considered whether ATU had the right to file a grievance on its
own behalf. 	In Omnitrans (2009) PERB Decision No. 2010-M (Omnitrans I),
10
own behalf. In Omnitrans (2009) PERB Decision No. 2010-M (Omnitrans D)," the Board held	the Board held
that under the MMBA a union has a statutory	that under the MMBA a union has a statutory right to file a grievance in its own name that can	right to file a grievance in its own name that can
only be limited by	only be limited by clear and unmistakable waiver. The Board further held that the MOU did	clear and unmistakable waiver. The Board further held that the MOU did
not contain a "clear and unmistakable prescription that an individual employee must be the	not contain a "clear and unmistakable prescription that an individual employee must be the
grievant, or a clear and unmistakable	grievant, or a clear and unmistakable proscription that the Union itself may not be the	proscription that the Union itself may not be the
grievant." Furthermore,	grievant." Furthermore, the Board found that reading the definition of a grievance to restrict	the Board found that reading the definition
of
a grievance to restrict
the filing
of
grievances to only an aggrieved employee would effectively render meaningless	the filing of grievances to only an aggrieved employee would effectively render meaningless
those provisions in the MOU that address rights granted to ATU.	those provisions in the MOU that address rights granted to ATU.
"Omnitrans denied the grievance on other grounds as well, including that the	Omnitrans denied the grievance on other grounds as well, including that the
management rights provisions	management rights provisions authorized its action. We do not address the merits of the other	authorized its action. We do not address the merits of the other
bases for denial of the grievance.	bases for denial of the grievance.
7
10
Omnitrans I was decided by the Board after the ALJ	" Omnitrans I was decided by the Board after the ALJ issued the proposed decision in	issued the proposed decision in
the present case.	the present case.
7

In the present case, the record reflects that the essential complaint in the grievance filed	In the present case, the record reflects that the essential complaint in the grievance filed
by Moore was the formation of the Focus Group in contravention of ATU. This conduct	by Moore was the formation of the Focus Group in contravention of ATU. This conduct
arguably violates both the exclusive representative and employee rights articles of the MOU,	arguably violates both the exclusive representative and employee rights articles of the MOU,
cited in the grievance. Omnitrans stated numerous times, in writing, that the grievance request	cited in the grievance. Omnitrans stated numerous times, in writing, that the grievance request
would not be entered into the formal procedure because the grievance was filed on behalf of	would not be entered into the formal procedure because the grievance was filed on behalf of
ATU rather than an individual aggrieved employee. Omnitrans repeatedly asserted that the	ATU rather than an individual aggrieved employee. Omni trans repeatedly asserted that the
MOU did not permit ATU to file a grievance on its own behalf. Consistent with the holding in	MOU did not permit ATU to file a grievance on its own behalf. Consistent with the holding in
Omnitrans I, the Board finds that Omnitrans unilaterally changed the grievance procedure	Omnitrans I, the Board finds that Omnitrans unilaterally changed the grievance procedure
when it refused to process the December 5, 2007 grievance because it was filed on behalf of	when it refused to process the December 5, 2007 grievance because it was filed on behalf of
ATU.	ATU.
Attorney's Fees	Attorney's Fees
PERB recently clarified the test for an award of attorney's fees under the MMBA,	PERB recently clarified the test for an award of attorney's fees under the MMBA,
holding that PERB will award attorney's fees only if the charge is both without arguable	holding that PERB will award attorney's fees only if the charge is both without arguable
merit and pursued in bad faith. 	The term "bad faith" includes conduct that is dilatory,	merit and pursued in bad faith. The term "bad faith" includes conduct that is dilatory,
vexatious or otherwise an abuse of process. (City of Alhambra (2009) PERB Decision	vexatious or otherwise an abuse of process. (City of Alhambra (2009) PERB Decision
No. 2036-M (City of Alhambra).) Although the ALJ in the instant case did not specifically	No. 2036-M (City of Alhambra).) Although the ALJ in the instant case did not specifically
rely on the City of Alhambra test, 11 the analysis in the proposed decision addresses both	rely on the City of Alhambra test, " the analysis in the proposed decision addresses both
prongs of the test. 	Therefore, the Board finds the ALJ adequately addressed the issue of	prongs of the test. Therefore, the Board finds the ALJ adequately addressed the issue of
attorney's fees in the present case.	attorney's fees in the present case.
REMEDY	REMEDY
MMBA section 3509(b) provides that PERB has jurisdiction to determine "the	MMBA section 3509(b) provides that PERB has jurisdiction to determine "the
appropriate remedy necessary to effectuate the purposes of this chapter."	appropriate remedy necessary to effectuate the purposes of this chapter."
"City of Alhambra was also issued after the instant proposed decision.	City of Alhambra was also issued after the instant proposed decision.
88

In the case at hand, Omnitrans has been found to have violated the MMBA by	In the case at hand, Omnitrans has been found to have violated the MMBA by
bypassing ATU and dealing directly with its employees when it established the Focus Group to	bypassing ATU and dealing directly with its employees when it established the Focus Group to
develop changes to EB bidding procedures. Therefore, it is appropriate that Omnitrans bedevelop changes to EB bidding procedures. Therefore, it is appropriate that Omnitrans be
ordered to cease and desist from such conduct.	ordered to cease and desist from such conduct.
An order to bargain with A TU regarding any changes in the EB bidding procedures, as	An order to bargain with ATU regarding any changes in the EB bidding procedures, as
set forth in the proposed decision, is not appropriate in this case. A TU' s motion to amend the	set forth in the proposed decision, is not appropriate in this case. ATU's motion to amend the
complaint to include a unilateral change allegation based on the implementation of new EB	complaint to include a unilateral change allegation based on the implementation of new EB
bidding procedures was denied, and therefore no finding was made on the merits. Therefore, it	bidding procedures was denied, and therefore no finding was made on the merits. Therefore, it
is not appropriate to order a make whole remedy, such as an order to bargain, with respect to	is not appropriate to order a make whole remedy, such as an order to bargain, with respect to
this issue.	this issue.
Additionally, the Board finds that Omnitrans unilaterally changed the grievance	Additionally, the Board finds that Omnitrans unilaterally changed the grievance
procedure by refusing to process a grievance filed on behalf of ATU. The normal remedy forprocedure by refusing to process a grievance filed on behalf of ATU. The normal remedy for
unilateral change is to restore the status quo by rescinding the unilateral change. (California	unilateral change is to restore the status quo by rescinding the unilateral change. (California
State Employees Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4 th 923, 946.)	State Employees Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4" 923, 946.)
Therefore, it is appropriate that Ornnitrans be ordered to process and reconsider the	Therefore, it is appropriate that Omnitrans be ordered to process and reconsider the
December 5, 2007 grievance upon request of ATU. It is also appropriate that Omnitrans be	December 5, 2007 grievance upon request of ATU. It is also appropriate that Omnitrans be
ordered to cease and desist from refusing to process grievances filed by ATU on its own	ordered to cease and desist from refusing to process grievances filed by ATU on its own
behalf .	behalf.
Finally, it is appropriate to order Omnitrans to post a notice incorporating the terms of	Finally, it is appropriate to order Omnitrans to post a notice incorporating the terms of
this order, signed by an authorized agent of Omnitrans indicating that it will comply with the	this order, signed by an authorized agent of Omnitrans indicating that it wiil comply with the
terms thereof.	terms thereof.
99

ORDER	ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in	Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, it is found that Omnitrans violated the Meyers-Milias-Brown Act (MMBA) by	this matter, it is found that Omnitrans violated the Meyers-Milias-Brown Act (MMBA) by
bypassing Amalgamated Transit Union Local 1704 (ATU) and dealing directly with bargaining	bypassing Amalgamated Transit Union Local 1704 (ATU) and dealing directly with bargaining
unit employees on negotiable subjects. It is further found that Omnitrans violated the MMBA	unit employees on negotiable subjects. It is further found that Omnitrans violated the MMBA
by unilaterally changing the grievance procedure when it refused to process a grievance filed	by unilaterally changing the grievance procedure when it refused to process a grievance filed
on behalf of ATU. By this conduct, Omnitrans violated the MMBA, Government Code	on behalf of ATU. By this conduct, Omnitrans violated the MMBA, Government Code
Sections 3505, 3506, and 3503.	Sections 3505, 3506, and 3503.
Pursuant to Section 3509(a) and (b) of the Government Code, it is hereby ORDERED	Pursuant to Section 3509(a) and (b) of the Government Code, it is hereby ORDERED
that Omnitrans, its governing board and its representatives shall:	that Omnitrans, its governing board and its representatives shall:
A.	A. 	CEASE AND DESIST FROM:	CEASE AND DESIST FROM:
1.	1. 	Bypassing ATU and dealing directly with bargaining unit employees on	Bypassing ATU and dealing directly with bargaining unit employees on
negotiable subjects, including bidding procedures for Extra Board (EB) assignments;	negotiable subjects, including bidding procedures for Extra Board (EB) assignments;
2.	2. 	Failing or refusing to meet and confer in good faith with ATU, by	Failing or refusing to meet and confer in good faith with ATU, by
unilaterally changing the parties' grievance procedure and refusing to process a grievance filed	unilaterally changing the parties' grievance procedure and refusing to process a grievance filed
on behalf of ATU;	on behalf of ATU;
3.3. 	Interfering with the rights of employees to be represented by ATU;	Interfering with the rights of employees to be represented by ATU;
4.4. 	Denying ATU its right to represent bargaining unit employees.	Denying ATU its right to represent bargaining unit employees.
B.B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	TAKE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE	EFFECTUATE THE POLICIES OF THE MMBA:	THE POLICIES OF THE MMBA:
11.. 	Upon demand by ATU, process and reconsider the December 5, 2007	Upon demand by ATU, process and reconsider the December 5, 2007
grievance regarding the EB Focus Group.	grievance regarding the EB Focus Group.
10

2.
2.	
Within ten (10) workdays following the date this Decision is no longerWithin ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,subject to appeal, post at all work locations where notices to employees are customarily posted,
copies
of
the Notice attached hereto. The Notice must be signed by an authorized agent
of	copies of the Notice attached hereto. The Notice must be signed by an authorized agent of
Omnitrans, indicating that Omnitrans will comply with the terms
of
this Order. 	Such posting	Omnitrans, indicating that Omnitrans will comply with the terms of this Order. Such posting
shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be	shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any	taken to ensure that the Notice
is
not reduced in size, altered, defaced or covered with any
other material.	other material.
3.	
3.
	Written notification
of
the actions taken to comply with this Order shall	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board or the General	be made to the General Counsel
of
the Public Employment Relations Board or the General
Counsel's designee. Omnitrans shall provide reports, in writing as directed by the GeneralCounsel's designee. Omnitrans shall provide reports, in writing as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be	Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on ATU.	concurrently served on ATU.
11
Chair Dowdin Calvillo and Member McKeag joined in this Decision.	Chair Dowdin Calvillo and Member Mckeag joined in this Decision.
11

APPENDIX	APPENDIX
NOTICE TO EMPLOYEES	NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE	POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California	An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-427-M, Amalgamated Transit	After a hearing in Unfair Practice Case No. LA-CE-427-M, Amalgamated Transit
Union Local 1704 v. Omnitrans, in which all parties had the right to participate, it has been	Union Local 1704 v. Omnitrans, in which all parties had the right to participate, it has been
found that Omnitrans violated the Meyers-Milias-Brown Act (MMBA), Government Code	found that Omnitrans violated the Meyers-Milias-Brown Act (MMBA), Government Code
section 3500 et seq.	section 3500 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:	As a result of this conduct, we have been ordered to post this Notice and we will:
A.	A. 	CEASE AND DESIST FROM:	CEASE AND DESIST FROM:
11.. 	Bypassing Amalgamated Transit Union Local 1704 (ATU) and dealing	Bypassing Amalgamated Transit Union Local 1704 (ATU) and dealing
directly with bargaining unit employees on negotiable subjects, including bidding procedures	directly with bargaining unit employees on negotiable subjects, including bidding procedures
for Extra Board assignments;	for Extra Board assignments;
22.. 	Failing or refusing to meet and confer in good faith with A TU, by	Failing or refusing to meet and confer in good faith with ATU, by
unilaterally changing the parties' grievance procedure and refusing to process a grievance filed	unilaterally changing the parties' grievance procedure and refusing to process a grievance filed
on behalf of ATU;	on behalf of ATU;
3.3. 	Interfering with the rights of employees to be represented by ATU;	Interfering with the rights of employees to be represented by ATU;
4.	4. 	Denying ATU its right to represent bargaining unit employees.	Denying ATU its right to represent bargaining unit employees.
B.	B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:	EFFECTUATE THE POLICIES OF THE MMBA:
Upon demand by ATU, process and reconsider the December 5, 2007 grievance	Upon demand by ATU, process and reconsider the December 5, 2007 grievance
regarding the Extra Board Focus Group.	regarding the Extra Board Focus Group.
Dated:	Dated: 	OMNITRANS	OM1'\fITRANS
By:	By:
Authorized Agent	Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY	IS AN OFFICIAL NOTICE. 	MUST REMAIN POSTED FOR 	LEAST THIRTY
(30)	(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE	CONSECUTIVE WORKDAYS FROM THE DA TE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER	REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.	MATERIAL.

STATE OF CALIFORNIA	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
AMALGAMATED TRANSIT UNION LOCAL	AMALGAMATED TRANSIT UNION LOCAL
1704,	1704,
Charging Party,	Charging Party,
V
V..
OMNITRANS,	OMNITRANS,
Respondent.	Respondent.
UNFAIR PRACTICE	UNFAIR PRACTICE
CASE NO. LA-CE-427-M	CASE NO. LA-CE-427-M
PROPOSED DECISION	PROPOSED DECISION
(February 24, 2009)	(February 24, 2009)
Appearances:	Appearances: 	Flynn	Neyhart, Anderson, Freitas, Flynn & Grosboll by William J. Flynn, Attorney,	Neyhart, Anderson, Freitas, 	& Grosboll by William J. Flynn, Attorney,
for Charging Party; Carol A. Greene, Deputy County Counsel, County of San Bernardino, for	for Charging Party; Carol A. Greene, Deputy County Counsel, County
of
San Bernardino, for
Respondent.	Respondent.
Before Ann L. Weinman, Administrative Law Judge.	Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY	PROCEDURAL HISTORY
an	Amalgamated Transit Union Local 1704 (ATU) filed an unfair practice charge and	Amalgamated Transit Union Local 1704 (A TU) filed 	unfair practice charge
and
amended charge alleging in essence that Omnitrans unlawfully formed a Focus Group toamended charge alleging in essence that Omnitrans unlawfully formed a Focus Group to
discuss Standard Operating Procedures for Extra Board (EB) drivers, 1 and unlawfully denied adiscuss Standard Operating Procedures for Extra Board (EB) drivers,' and unlawfully denied a
grievance complaining about this conduct. On May 6, 2008, the office
of
the General Counselgrievance complaining about this conduct. On May 6, 2008, the office of the General Counsel
of
the Public Employment Relations Board (PERB or Board) issued a complaint alleging thatof the Public Employment Relations Board (PERB or Board) issued a complaint alleging that
by forming the Focus Group, Omnitrans attempted to bypass, undermine, and derogate
theby forming the Focus Group, Omnitrans attempted to bypass, undermine, and derogate the
authority
of
A TU, and that by denying the grievance, Omni trans made a unilateral change inauthority of ATU, and that by denying the grievance, Omnitrans made a unilateral change in
the grievance policy, in violation
of
the Meyers-Milias-Brown Act (MMBA or Act) sectionthe grievance policy, in violation of the Meyers-Milias-Brown Act (MMBA or Act) section
3505.2 In its answer to the complaint, Omnitrans denied any wrongdoing.	3505." In its answer to the complaint, Omnitrans denied any wrongdoing.
1
The function of Extra Board drivers is discussed below.	The function
of
Extra Board drivers is discussed below.
2
2 The MMBA is codified at Government Code section 3500 et seq. Section 3505	The MMBA is codified at Government Code section 3500 et seq. Section 3505
requires that "[t]he governing body of a public agency
...
shall meet and confer in good faithrequires that "[the governing body of a public agency . . . shall meet and confer in good faith
regarding wages, hours, and other terms and conditions of employment with representatives ofregarding wages, hours, and other terms and conditions of employment with representatives of
...
recognized employee organizations."	. . . recognized employee organizations."

2
An informal settlement conference was scheduled for June 17, 2008, in the Los Angeles	An informal settlement conference was scheduled for June 17, 2008, in the Los Angeles
office
of
PERB. The day before, Omnitrans' attorney Carol Greene (Greene) phoned the	office of PERB. The day before, Omnitrans' attorney Carol Greene (Greene) phoned the
PERB Board agent assigned to conduct the conference and left a message that she would not	PERB Board agent assigned to conduct the conference and left a message that she would not
attend in person but would be available by telephone. 	She did not phone Omnitrans or its	attend in person but would be available by telephone. She did not phone Omnitrans or its
attorney. The Board agent was absent on June
16
and did not receive Greene's message until	attorney. The Board agent was absent on June 16 and did not receive Greene's message until
the morning
of
June 17. Officers
of
ATU and its attorney, William Flynn (Flynn), who flew to	the morning of June 17. Officers of ATU and its attorney, William Flynn (Flynn), who flew to
Los Angeles from his office in San Francisco, appeared at the PERB office for the settlement	Los Angeles from his office in San Francisco, appeared at the PERB office for the settlement
conference, at which time the Board agent conveyed Greene's message. ATU declined toconference, at which time the Board agent conveyed Greene's message. ATU declined to
proceed under these circumstances and left the PERB office. On June
25
ATU submitted aproceed under these circumstances and left the PERB office. On June 25 ATU submitted a
second amended charge and motion to amend the complaint, alleging the above facts and	second amended charge and motion to amend the complaint, alleging the above facts and
seeking attorney fees and costs based thereon.	seeking attorney fees and costs based thereon.
Formal hearing was held by the undersigned on July 29 and 30, 2008. In his opening	Formal hearing was held by the undersigned on July 29 and 30, 2008. In his opening
remarks at the hearing, ATU's attorney proposed the standard remedy as well as attorney fees	remarks at the hearing, ATU' s attorney proposed the standard remedy as well as attorney fees
and costs based on the settlement conference events. The second amended charge and motion	and costs based on the settlement conference events. The second amended charge and motion
to amend the complaint were denied on the basis that they do not allege unfair practices, nor	to amend the complaint were denied on the basis that they do not allege unfair practices, nor
are they necessary in order to obtain the requested remedy; however, the requested remedy was	are they necessary in order to obtain the requested remedy; however, the requested remedy was
taken under consideration.	taken under consideration.
During the hearing ATU also moved to amend the complaint to include the unlawful	During the hearing ATU also moved to amend the complaint to include the unlawful
formation
of
Omnitrans' Cultural Design Team (CDT), a matter referred to in the charge but	formation of Omnitrans' Cultural Design Team (CDT), a matter referred to in the charge but
not alleged therein as an unfair practice.3 The motion was denied as untimely.not alleged therein as an unfair practice." The motion was denied as untimely.
After 	the complaint	After the hearing, on December 18, 2008, ATU filed a motion to amend the complaint	the hearing, on December 18, 2008, ATU filed a motion to amend
to allege Omnitrans' unilateral implementation of changes to 	procedures. The undersigned	to allege Omnitrans' unilateral implementation of changes to EB procedures. The undersigned
denied the motion by order dated December 22, 2008.	denied the motion by order dated December 22, 2008.
3
The CDT is described below.	The CDT is described below.
2

Upon the filing
of
post-hearing briefs, the matter was submitted for decision onUpon the filing of post-hearing briefs, the matter was submitted for decision on
January 12, 2009.	January 12, 2009.
FINDINGS OF FACT	FINDINGS OF FACT
ing rules
3
Few
of
the facts are disputed. Omnitrans
is
a public agency within the meaning
of	Few of the facts are disputed. Omnitrans is a public agency within the meaning of
MMBA section 350l(c). ATU is a recognized employee organization within the meaning
of	MMBA section 3501(c). ATU is a recognized employee organization within the meaning of
section 3501(b). Omnitrans provides public bus service in the San Bernardino area.	
It
section 3501(b). Omnitrans provides public bus service in the San Bernardino area. It
operates two facilities, East Valley located in San Bernardino under transportation manager	operates two facilities, East Valley located in San Bernardino under transportation manager
Doug Stanley (Stanley) and West Valley located in Montclair under transportation manager	Doug Stanley (Stanley) and West Valley located in Montclair under transportation manager
John Steffon (Steffan). Omnitrans employs regular full-time bus drivers, regular part-time	John Steffon (Steffon). Omnitrans employs regular full-time bus drivers, regular part-time
drivers, and relief drivers who fill in the additional 2 days per week for the regular drivers'	drivers, and relief drivers who fill in the additional 2 days per week for the regular drivers'
5-day schedules.	
It
also allows its regular or relief drivers to bid on the EB for those times	5-day schedules. It also allows its regular or relief drivers to bid on the EB for those times
when they are not otherwise assigned. The EB covers unfilled assignments on a daily basis for	when they are not otherwise assigned. The EB covers unfilled assignments on a daily basis for
last-minute absences, e.g., sick leave or emergency, and also for absences known in advance,	last-minute absences, e.g., sick leave or emergency, and also for absences known in advance,
e.g., jury duty, military leave, vacation, or extended sick leave.
	If
the EB assignment will be
e.g., jury duty, military leave, vacation, or extended sick leave. If the EB assignment will be
for a week or more, it is called a "hold-down," which has its own procedure (see posting rules	for a week or more, it is called a "hold-down," which has its own procedure (see post
below). At any given time the EB has approximately 50 drivers on its roster.	below). At any given time the EB has approximately 50 drivers on its roster.
Omnitrans and ATU have been parties to a series
of
collective bargaining agreements;	Omnitrans and ATU have been parties to a series of collective bargaining agreements;
the most recent Memorandum
of
Understanding (MOU) is dated April
1,
2004 through	the most recent Memorandum of Understanding (MOU) is dated April 1, 2004 through
March 31, 2007. 	contains	March 31, 2007. It contains no provision regarding the formation of a Focus Group or the	It 	no provision regarding the formation
of
a Focus Group or the
CDT. The only provisions specifically regarding EB drivers are in Article 42, Seniority and
CDT. The only provisions specifically regarding EB drivers are in Article 42, Seniority and
Work	Work Assignment, section G, Extra Board Posting:	Assignment, section G, Extra Board Posting:
1.
	board	1. It is the sole responsibility of the extra board operator to	It is the sole responsibility of the extra 	operator to
confirm their actual work assignment. The Agency agrees that	confirm their actual work assignment. The Agency agrees that
the next day's Division Extra Board assignments, known at 1700	the next day's Division Extra Board assignments, known at 1700
(5:00 p.m.) will be posted at 1800 (6:00 p.m.) at the Dispatch	(5:00 p.m.) will be posted at 1800 (6:00 p.m.) at the Dispatch
window in each Division. The posting will not be updated for	window in each Division. The posting will not be updated for
assignments due to additional call offs, no shows, etc. The	assignments due to additional call offs, no shows, etc. The
3

postings will reflect the Extra Board personnel, their shift number	postings will reflect the Extra Board personnel, their shift number
assignment and initial sign
on
time. This posting will be removed	assignment and initial sign on time. This posting will be removed
between 1200 (noon) and 1300 (1:00 p.m.) on the day the	between 1200 (noon) and 1300
(1
:00 p.m.) on the day the
assignments are worked.	assignments are worked.
2.	
2. Extra Board Hold Down Bidding. There will be a bid proce	Extra Board Hold Down Bidding. There will be a bid process	ss
durations	by Operators signing on the Extra Board to bid durations of	by Operators signing on the Extra Board to bid
	of
absence
by
other Operators from work
of
at least one week
or	absence by other Operators from work of at least one week or
more. This process will be a hold
dovvn
process meant to cover	more. This process will be a hold down process meant to cover
the entire time posted for bid which should correspond to the	the entire time posted for bid which should correspond to the
period
of
absence an Operator is not at work. Hold Down Bidperiod of absence an Operator is not at work. Hold Down Bid
process will be used to cover absences due to vacation, extended	process will be used to cover absences due to vacation, extended
known periods
of
sick leave, absence due to industrial injury or	known periods of sick leave, absence due to industrial injury or
illness, military, personal leave, or any known absence that wil	illness, military, personal leave, or any known absence that willl
last at least one week or more from work.	last at least one week or
more from work.
[If the Agency has been advised that an employee will vacate	[If the Agency has been advised that an employee will vacate
his/her assignment for a period of thirty (30) days or more the	his/her assignment for a period
of
thirty (30) days or more the
employee is placed in an inactive bid status, said assignment shall	employee is placed in an inactive bid status, said assignment shall
be covered as an Extra Board hold down for the remainder of the	be covered as an Extra Board hold down for the remainder
of
the
bid period or until that employee returns to work. In the case of	bid period or until that employee returns to work. In the case
of
maternity leave, the employee will return to the shift they	maternity leave, the employee will return to the shift they
vacated.]"	vacated.]4
Extra Board Operators will bid for these hold downs by their	Extra Board Operators will bid for these hold downs by their
divisional classification seniority in the posting week which is the	divisional classification seniority in the posting week which is the
week prior to the start
of
the absence. The Operator will assume	week prior to the start of the absence. The Operator will assume
the days off on the assignment, pay and must work the entire	the days
off
on the assignment, pay and must work the entire
duration of the posted bid. Some bids may be posted "until	duration
of
the posted bid. Some bids may be posted "until
further notice" in which the successful bidder will remain on the	further notice" in which the successful bidder will remain on the
assignment until the operator returns to work or the Bid Period	assignment until the operator returns to work or the Bid Period
ends which ever occurs first.	ends which ever occurs first.
On Monday of each week Omnitrans will post for bid by extra	On Monday
of
each week Omnitrans will post for bid by extra
board operators in each division all vacancies
of
at least one week	board operators in each division all vacancies of at least one week
or more. Bidding on the postings will end on 7:00 A.M. Friday	or more. Bidding on the postings will end on 7:00 A.M. Friday
of the same week. On Friday by Extra Board posting time (6:00	
of
the same week. On Friday by Extra Board posting time (6:00
P.M.), the results
of
the bid process will be posted with	P.M.), the results of the bid process will be posted with
successful bidders awarded and those forced by Dispatcher	successful bidders awarded and those forced by Dispatcher
assignment, by inverse seniority because
of
lack
of
interest. Any	assignment, by inverse seniority because of lack of interest. Any
Operator working an inversed hold down assignment may only	Operator working an inversed hold down assignment may only
get off the hold down as a result
of
new hires, changing seniority	get off the hold down as a result of new hires, changing seniority
on the Extra Board or the expiration of the duration. Operators	on the Extra Board or the expiration
of
the duration. Operators
will be responsible for checking to see if their bid slip was	will be responsible for checking to see
if
their bid slip was
4
4
". In October 2007 the parties reached tentative agreement on a new MOU, dated	· In October 2007 the parties reached tentative agreement on a new MOU, dated
April 1, 2007, through March 31, 2010. It has been drafted but not executed. This paragraph	April 1, 2007, through March 31, 2010. It has been drafted but not executed. This paragraph
was added in the new MOU.	was added in the new MOU.
4

successful or whether they were forced by seniority to cover	successful or whether they were forced by seniority to cover
unbid work. Bid slips will contain the Extra Board Operator's	unbid work. Bid slips will contain the Extra Board Operator's
name, badge and the option of bidding at least fifteen choices.	name, badge and the option
of
bidding at least fifteen choices.
All bid slips will be retained for at least three weeks should there	All bid slips will be retained for at least three weeks should there
be a question of seniority to resolve.	be a question
of
seniority to resolve.
All bid work will be effective Monday morning of the following	All bid work will be effective Monday morning
of
the following
week and run until further notice or the end duration as posted.	week and run until further notice or the end duration as posted.
There will be a difference in color between an Open run bid slip	There will be a difference in color between an Open run bid slip
and a Hold Down bid slip. Open bids are made by system	and a Hold Down bid slip. Open bids are made by system
seniority within division and Hold Down bids are made by	seniority within division and Hold Down bids are made by
classification seniority on the Extra Board
of
a division. Partclassification seniority on the Extra Board of a division. Part
time Operators will not work hold downs and open runs.	time Operators will not work hold downs and open runs.
Article 8, Management Rights, provides:	Article 8, Management Rights, provides:
5
rights	All management rights and functions shall remain vested	All management 	and functions shall remain vested
exclusively with the Agency, except those which are clearly and	exclusively with the Agency, except those which are clearly and
expressly limited in this M.O.U. It is recognized merely by way	expressly limited in this M.O.U. It is recognized merely by way
of illustration that such management rights and functions include,	
of
illustration that such management rights and functions include,
but are not limited to:	but are not limited to:
determine the mission and organizational	A.	
A. The right to determine the mission and organizational	The right to
structure of each of its departments.	structure
of
each
of
its departments.
B.	B. The right to full and exclusive control
of
the management
of	The right to full and exclusive control of the management of
the Agency; supervision
of
all operations; determination
of
the	the Agency; supervision of all operations; determination of the
position, assignment, direction, location and determination
of
the	position, assignment, direction, location and determination of the
size and mission of the work force.	size and mission
of
the work force.
C.	
C. The right to determine the work to be done by the employees,	The right to determine the work to be done by the employees,
including establishment of levels of service and staffing patterns.	including establishment
of
levels
of
service and staffing patterns.
D.	D. 	The right to change or introduce nevv or improved operations,	The right to change or introduce new or improved operations,
methods, means, facilities, or to contract for work to be done.	methods, means, facilities, or to contract for work to be done.
E.	
E. The right to contract (or sub-contract) any work or operation	The right to contract (or sub-contract) any work or operation
provided no employee employed as
of
March 31, 2004, or upon	provided no employee employed as of March 31, 2004, or upon
ratification is laid off as a result of the contracting or	ratification is laid off as a result of the contracting or
subcontracting.	subcontracting.
The right to hire, schedule, set and enforce performance	The right to hire, schedule, set and enforce performance
standards, promote, demote, reduce in step or grade, transfer,	standards, promote, demote, reduce in step or grade, transfer,
release, and layoff employees; to suspend, discipline, discharge	release, and layoff employees; to suspend, discipline, discharge
regular employee only for just cause (all probationary employees	regular employee only for just cause (all probationary employees
are "at will"); to prescribe qualifications for employment and to	are "at will"); to prescribe qualifications for employment and to
determine whether they are met; to establish, revise and enforce	determine whether they are met; to establish, revise and enforce
5

work rules, and to otherwise maintain orderly, effective and	work rules, and to otherwise maintain orderly, effective and
efficient operations.	efficient operations.
And Article 22, Grievance Procedure, defines a grievance as:	And Article 22, Grievance Procedure, defines a grievance as:
6
1.	1. An alleged violation or noncompliance with the provisions of	An alleged violation or noncompliance with the provisions of
this	this M.O.U., the Agency's written personnel rules and	M.O.U., the Agency's written personnel rules and
regulations, or department rule[s] and regulations. No policy or	regulations, or department rule[s] and regulations. No policy or
:AA Aan v1·01n4.~ 	5	--~A
practice can violate a written term of the M.O.U.[ ]
~tf {\	jJli:t\.,ll\.,I;;\.,	.. 	Q,ll;;Q,n ·wr:t+~n	llll;;l term1 o++l-,,,	l.llll,.,l'VLV,U,	TT [ ]
2. It is further agreed that this grievance procedure will apply to	2. It is further agreed that this grievance procedure will apply to
any violation of noncompliance with the provisions of the	any violation of noncompliance with the provisions of the
M.O.U., the Agency's written personnel rules and regulations,	M.O.U., the Agency's written personnel rules and regulations,
department rules and regulations unless otherwise agreed by the	department rules and regulations unless otherwise agreed by the
parties. No policy or practice can violate a written term of the	parties. No policy or practice can violate a written term of the
M.O.U.	M.O.U.
Historically, EB assignments were rotated among drivers on the EB roster, i.e. the first	Historically, EB assignments were rotated among drivers on the EB roster, i.e. the first
opportunity would go to the first driver on the list and so forth; after finishing an EB	opportunity would go to the first driver on the list and so forth; after finishing an EB
assignment, the driver's name v1ould then go to the bottom of the list. Rather than constantly	assignment, the driver's name would then go to the bottom of the list. Rather than constantly
rewriting the list, an arrow was used, which moved down the list to the next name when the	rewriting the list, an arrow was used, which moved down the list to the next name when the
previous name was assigned. Under that procedure, EB drivers could calculate whether or	previous name was assigned. Under that procedure, EB drivers could calculate whether or
when on any given day they were likely to get an assignment. However, they could not be	when on any given day they were likely to get an assignment. However, they could not be
assured that their next assignment would be on any particular day or at any particular hour.	assured that their next assignment would be on any particular day or at any particular hour.
During negotiations for a successor agreement, in early to mid-2007, ATU made	During negotiations for a successor agreement, in early to mid-2007, ATU made
several proposals on EB procedures, including the addition of the following clauses on the	several proposals on EB procedures, including the addition of the following clauses on the
following dates:	following dates:
February 20: The parties will meet and agree on the rules of	February 20: The parties will meet and agree on the rules of
operating the rotation of the Extra Board which will create	operating the rotation of the Extra Board which will create
consistency and accountability for Dispatcher decisions.	consistency and accountability for Dispatcher decisions.
May 31: 	[same as above]	May 31: [same as above]
June 6: [same as above]	June 6: 	[same as above]
5
In the 2007-2010 MOU draft, the definition of a grievance is modified to read "An	In the 2007-2010 MOU draft, the definition of a grievance is modified to read "An
alleged violation or noncompliance with the disciplinary provisions of this M.O.U .... "	alleged violation or noncompliance with the disciplinary provisions of this M.O.U. . . ."
[Underline added.]	[Underline added.]
6

7
meet	July 16: The parties will meet and discuss the Standard	July 16: The parties will 	and discuss the Standard
Operating Procedures for the Extra Board. A new set
of	Operating Procedures for the Extra Board. A new set of
procedures will be issued not more than sixty days after	procedures will be issued not more than sixty days after
ratification which will create more objectivity, consistency and	ratification which will create more objectivity, consistency and
accountability for Dispatcher decisions. 	[Emphasis added.]	accountability for Dispatcher decisions. [Emphasis added.]
Standard	July 31: The Agency will revise the current Standard Operating	July 31: The Agency will revise the current 	Operating
Procedures for the Extra Board after meeting and discussing	Procedures for the Extra Board after meeting and discussing
them with the Union. A new set of procedures . . . [same as July	them with the Union. A new set
of
procedures
...
[same as July
16]. [Emphasis added.]	16]. [Emphasis added.]
All
of
ATU's
proposals were rejected outright by Omnitrans and none are included in theAll of ATU's proposals were rejected outright by Omnitrans and none are included in the
Tentative Agreement for the 2007-2010 MOU.	Tentative Agreement for the 2007-2010 MOU.
Director	In April 2007 Omnitrans established the CDT for the purpose, according to Director of	In April 200?6 Omnitrans established the CDT for the purpose, according to
	of
Operations Paul Graham (Graham),
of
"look[ing] at better processes within those departments	Operations Paul Graham (Graham), of "look[ing] at better processes within those departments
for efficiency, cost savings, general methodology
of
procedures and to be more, I guess,
infor efficiency, cost savings, general methodology of procedures and to be more, I guess, in
h
	l'
	1 	.
h.	
touc . 	.	h
w1L
i,, an exc.hange
o.
f commumcat10ns	. 	. 	wit.
	...
a 1 emp oyees wit
_m
0 mmtrans	. 	to
1'
_1stentouch with an exchange of communications with . . . all employees within Omnitrans to listen
to their concerns and try to solve problems." Members
of
the CDT included representatives	to their concerns and try to solve problems." Members of the CDT included representatives
from the various departments, as well as drivers, who were paid to attend CDT meetings and	from the various departments, as well as drivers, who were paid to attend CDT meetings and
were relieved
of
driving duties during those times. A TU president Dale Moore (Moore) waswere relieved of driving duties during those times. ATU president Dale Moore (Moore) was
asked to join the CDT but he declined, often stating that the CDT had no authority to
makeasked to join the CDT but he declined, often stating that the CDT had no authority to make
changes to mandatory subjects
of
bargaining. Other ATU officers did participate in the CDT.changes to mandatory subjects of bargaining. Other ATU officers did participate in the CDT.
Graham testified that before the development of the CDT, dispatch supervisor Scott
understanding how EB	Huffman (Huffman) told him that some drivers had difficulty understanding how EB	Huffman (Huffman) told him that some drivers had difficulty
assignments were made and wanted the process to be easier and more flexible, and that theassignments were made and wanted the process to be easier and more flexible, and that the
subject was raised again by drivers at CDT meetings. By memo to all drivers dated Novembersubject was raised again by drivers at CDT meetings. By memo to all drivers dated November
14 Graham announced the formation of a Focus Group to be composed of volunteers among	14 Graham announced the formation
of
a Focus Group to be composed
of
volunteers among
senior and junior drivers, an A TU representative, a dispatcher, Huffman, Stanley, himself, and	senior and junior drivers, an ATU representative, a dispatcher, Huffman, Stanley, himself, and
an outside facilitator, Kent Kingman (Kingman). As with the CDT, driver members were paid	an outside facilitator, Kent Kingman (Kingman). As with the CDT, driver members were paid
" All dates refer to the year 2007 unless otherwise specified.	All dates refer to the year 2007 unless otherwise specified.
7

8
to attend meetings and were relieved of their driving duties. The announced purpose of the	to attend meetings and were relieved of their driving duties. The announced purpose of the
Focus Group was to speak with drivers, get their suggestions, and report to Graham regarding	Focus Group was to speak with drivers, get their suggestions, and report to Graham regarding
the rotation of EB assignments. The first Focus Group meeting was held on December 6.	the rotation of EB assignments. The first Focus Group meeting was held on December 6.
Curtis Wilkerson (Wilkerson), a regular driver from West Valley and an ATU Executive Board	Curtis Wilkerson (Wilkerson), a regular driver from West Valley and an ATU Executive Board
member, who served on both the CDT and the Focus Group, testified that at the first meeting,	member, who served on both the CDT and the Focus Group, testified that at the first meeting,
Kingman said that they were only going to discuss EB matters not covered by the MOU, and	Kingman said that they were only going to discuss EB matters not covered by the MOU, and
were not going to change anything in the MOU. Moore attended at least one of the meetings,	were not going to change anything in the MOU. Moore attended at least one of the meetings,
and Graham kept him informed of the others. The information gathered by the Focus Group	and Graham kept him informed of the others. The information gathered by the Focus Group
showed that some EB drivers wanted to keep the arrow, while others wanted to be able to bid,	showed that some EB drivers wanted to keep the arrow, while others wanted to be able to bid,
by seniority, for permanent day or hour slots. The Focus Group was not a part of the CDT and	by seniority, for permanent day or hour slots. The Focus Group was not a part of the CDT and
did not report to it; however, its findings were discussed at CDT meetings. At the CDT	did not report to it; however, its findings were discussed at CDT meetings. At the CDT
meeting on January 30, 2008, the Focus Group recommended that the arrow and the rotation be	meeting on January 30, 2008, the Focus Group recommended that the arrow and the rotation be
discontinued and that bidding be by seniority. The Focus Group held approximately ten	discontinued and that bidding be by seniority. The Focus Group held approximately ten
meetings; the last was on February 13, 2008.	meetings; the last was on February 13, 2008.
On December 5 Moore, a regular driver, filed a grievance under his own name	On December 5 Moore, a regular driver, filed a grievance under his own name
contesting the formation of the Focus Group. He cited various violations of the MOU: Article	contesting the formation of the Focus Group. He cited various violations of the MOU: Article
I - Preamble; Article 2 - Exclusive Representative; Article 3 - Warranty of Capacity; Article 5	I - Preamble; Article 2 - Exclusive Representative; Article 3 - Warranty of Capacity; Article 5
- Sole and Entire Memorandum of Understanding; Article 9 	Employee Rights; Article 37	- Sole and Entire Memorandum of Understanding; Article 9 - Employee Rights; Article 37 -
Overtime Pay; and Article 42 - Seniority and Work Assignment. On December 11 Graham	Overtime Pay; and Article 42 - Seniority and Work Assignment. On December 11 Graham
denied the grievance on the grounds that Moore was not an affected employee, that the matter	denied the grievance on the grounds that Moore was not an affected employee, that the matter
was outside 	grievance procedure, and that Article 8 of the MOU gave Omnitrans the	was outside the grievance procedure, and that Article 8 of the MOU gave Omnitrans the
unilateral right to change procedures. Moore submitted a request for arbitration, which was	unilateral right to change procedures. Moore submitted a request for arbitration, which was
denied	denied by CEO/General Manager Durand Rall (Rall) on the same grounds. On December 10	by CEO/General Manager Durand Rall (Rall) on the same grounds. 	On December 10
ATU vice president Jeff Caldwell (Caldwell) filed a grievance contesting changes to EB bid-	ATU vice president Jeff Caldwell (Caldwell) filed a grievance contesting changes to EB bid-
8

9
posting procedures. MOU violations cited were Article 42 section G, and Article 22 -	posting procedures. MOU violations cited were Article 42 section G, and Article 22 -
Grievance Procedure; also cited was "past practice." On December 21 Graham denied the	Grievance Procedure; also cited was "past practice." On December 21 Graham denied the
grievance on the ground that it did not meet the MOU definition of a grievance. Caldwell filed	grievance on the ground that it did not meet the MOU definition of a grievance. Caldwell filed
a request for arbitration which Rall denied on the same ground. There is no evidence as to how	a request for arbitration which Rall denied on the same ground. There is no evidence as to how
Omnitrans handled prior grievances on similar issues, or even on different issues.	Omnitrans handled prior grievances on similar issues, or even on different issues.
By memo of June 12, 2008,7 to Moore, Graham summarized the work of the Focus	By memo of June 12, 2008,' to Moore, Graham summarized the work of the Focus
Group as a "fact gathering process," and stated that management's goal was to make the EB	Group as a "fact gathering process," and stated that management's goal was to make the EB
easier and more understandable. Included in the memo is the following language:	easier and more understandable. Included in the memo is the following language:
Although these improved business practices do not change any
terms of the labor contract and only involve internal management	terms of the labor contract and only involve internal management
procedures, you may consider some selected changes as meet and	procedures, you may consider some selected changes as meet and
confer items. Therefore, as a final step I would like to schedule a	confer items. Therefore, as a final step I would like to schedule a
meeting to address any concerns you may have regarding these	meeting to address any concerns you may have regarding these
improvements and come to some resolution in the interest of our	improvements and come to some resolution in the interest of our
employees . . . .	employees ....
Although these improved business practices do not change any
A few weeks later Graham asked Moore how his (Graham's) memo conflicted with the	A few weeks later Graham asked Moore how his (Graham's) memo conflicted with the
MOU. Moore refused to answer, believing that the matter should be discussed in formal	MOU. Moore refused to answer, believing that the matter should be discussed in formal
negotiations rather than casual conversation. On July 3 Moore called Graham and suggested	negotiations rather than casual conversation. On July 3 Moore called Graham and suggested
they meet and confer to produce a side letter for EB procedures which would then become part	they meet and confer to produce a side letter for EB procedures which would then become part
of	of the next MOU. Graham responded by letter of July 8 that he would be willing to negotiate a	the next MOU. Graham responded by letter of July 8 that he would be willing to negotiate a
side letter limited to the bidding process but not the entire operating procedure, which would	side letter limited to the bidding process but not the entire operating procedure, which would
be subject only to "meet and discuss." A meeting was scheduled for July 21. On July 17	be subject only to "meet and discuss." A meeting was scheduled for July 21. On July 17
Moore met with Graham and Stanley regarding other issues. Graham asked what Moore	Moore met with Graham and Stanley regarding other issues. Graham asked what Moore
thought was negotiable about EB procedures; Moore said he was not prepared to discuss the	thought was negotiable about EB procedures; Moore said he was not prepared to discuss the
EB at that time and it would be a waste of time to meet unless it consisted of formal	EB at that 	and it would be a waste of time to meet unless it consisted of form al
negotiations on the entire EB process; Graham rejected the suggestion. Moore then gave him a	negotiations on the entire EB process; Graham rejected the suggestion. Moore then gave him a
7
All dates hereafter refer to the year 2008 unless otherwise specified.	All dates hereafter refer to the year 2008 unless otherwise specified.
9

10
to	letter and said it was his answer. The letter stated that it was unacceptable to limit negotiations	letter and said it was his answer. The letter stated that it was unacceptable 	limit negotiations
to just the EB bidding process because Omnitrans was obligated to negotiate the entire scope	to just the EB bidding process because Omnitrans was obligated to negotiate the entire scope
of EB matters. Graham cancelled the July 21 meeting.	
of
EB
matters. Graham cancelled the July
21
meeting.
By memo
of
September 2, Graham issued a new Standard Operating Procedure for theBy memo of September 2, Graham issued a new Standard Operating Procedure for the
EB, providing, inter alia, for permanent bids rather than the arrow rotation method, to become	EB, providing, inter alia, for permanent bids rather than the arrow rotation method, to become
effective on September 12. The proposed procedures also address bidding for stand-by andeffective on September 12. The proposed procedures also address bidding for stand-by and
part-time operators, days off, work assignments and shifts, job postings, minimum pay hours,part-time operators, days off, work assignments and shifts, job postings, minimum pay hours,
hold-down bidding, right
of
first refusal, and overtime. Omnitrans contends that the proposed	hold-down bidding, right of first refusal, and overtime. Omnitrans contends that the proposed
procedures do not change any terms
of
the MOU. ATU argues that any change in the mannerprocedures do not change any terms of the MOU. ATU argues that any change in the manner
of rotation could result in changed work hours or earned wages for any particular EB driver,	
of
rotation could result in changed work hours or earned wages for any particular EB driver,
and that rotation as well as the proposed changes in days off; shifts, minimum pay, andand that rotation as well as the proposed changes in days off, shifts, minimum pay, and
overtime are matters within the scope
of
representation and would change terms
of
the MOU.overtime are matters within the scope of representation and would change terms of the MOU.
Also, according to ATU, the new procedures were unilaterally implemented after the close
ofAlso, according to ATU, the new procedures were unilaterally implemented after the close of
this hearing, but that matter is not before me, as noted above.	this hearing, but that matter is not before me, as noted above.
Moore testified that historically, e.g., in 2005, EB changes were made only after theMoore testified that historically, e.g., in 2005, EB changes were made only after the
parties met and discussed them and reached agreement. Specifically, he pointed to discussionsparties met and discussed them and reached agreement. Specifically, he pointed to discussions
he had with then-Director
of
Operations Cindy Peterson (Peterson) in November and	he had with then-Director of Operations Cindy Peterson (Peterson) in November and
December 2005 and a meeting he had with Huffman in November 2006 regarding EB	December 2005 and a meeting he had with Huffman in November 2006 regarding EB
procedures. The record also reflects discussions held between Omnitrans and ATU in March	procedures. The record also reflects discussions held between Omnitrans and ATU in March
2004. ATU contends that anything which changes the terms of the MOU or any terms or	2004. ATU contends that anything which changes the terms of the MOU or any terms or
conditions
of
employment, e.g., wages, hours of work, or seniority, must be negotiated.conditions of employment, e.g., wages, hours of work, or seniority, must be negotiated.
However, outside of his letter of July 17, Moore never specified to Omnitrans, nor at the	However, outside of his letter of July 17, Moore never specified to Omnitrans, nor at the
hearing, just which EB items must be negotiated and which items Omnitrans was free to	hearing, just which EB items must be negotiated and which items Omnitrans was free to
change on its own. Further, Moore admitted that EB operating procedures are not included in	change on its own. Further, Moore admitted that EB operating procedures are not included in

Omnitrans' policy manual, are not routinely given to new drivers upon hire, and are not sent to	Omnitrans' policy manual, are not routinely given to new drivers upon hire, and are not sent to
A TU unless requested, that some aspects of EB procedures need not be negotiated, and that the	ATU unless requested, that some aspects of EB procedures need not be negotiated, and that the
employer can speak to employees about workplace issues and request their feedback.	employer can speak to employees about workplace issues and request their feedback.
In Omnitrans' defense, Graham testified that he was unsure which EB matters were	In Omnitrans' defense, Graham testified that he was unsure which EB matters were
subject to negotiations and which were not, and looked to Moore for guidance which was not	subject to negotiations and which were not, and looked to Moore for guidance which was not
provided. Omnitrans contends that the arrow and rotation, along with other procedural	provided. Omnitrans contends that the arrow and rotation, along with other procedural
matters, are not negotiable. Omnitrans contends that it has never engaged in formal	matters, are not negotiable. Omnitrans contends that it has never engaged in formal
negotiations on EB procedures, but rather has discussed the matter with ATU in an attempt to	negotiations on EB procedures, but rather has discussed the matter with ATU in an attempt to
reach consensus, and has made unilateral changes thereafter. In that regard, Omnitrans points	reach consensus, and has made unilateral changes thereafter. In that regard, Omnitrans points
to ATU's last two EB proposals in 2007 in which changes in procedure were only to be	to ATU' s last two EB proposals in 2007 in which changes in procedure were only to be
"discussed." The record reflects that the most recent changes prior to those at issue were made	"discussed." The record reflects that the most recent changes prior to those at issue were made
in mid-2005, well before Moore's discussions with Peterson, which Omnitrans contends were	in mid-2005, well before Moore's discussions with Peterson, which Omnitrans contends were
not the result of negotiations, as no signed agreement was prepared. Further, the 2005	not the result of negotiations, as no signed agreement was prepared. Further, the 2005
changes, like the September 2008 changes, did not contradict any terms of the MOU.	changes, like the September 2008 changes, did not contradict any terms of the MOU.
Omnitrans also contends that the Focus Group only discussed information gathered by drivers	Omnitrans also contends that the Focus Group only discussed information gathered by drivers
but did not reach any decisions, and that when new procedures were proposed, Omnitrans	but did not reach any decisions, and that when new procedures were proposed, Omnitrans
offered to bargain over any items which ATU believed were negotiable; therefore Omni trans	offered to bargain over any items which ATU believed were negotiable; therefore Omnitrans
was not trying to bypass the union.	was not trying to bypass the union.
11	11

Attorney's fees and costs	Attorney's fees and costs
With regard to the settlement conference and ATU's request for attorney fees and costs,	With regard to the settlement conference and ATU' s request for attorney fees and costs,
Moore admitted in testimony that ATU has gone forward with at least one settlement	Moore admitted in testimony that ATU has gone forward with at least one settlement
conference when Omni trans participated by telephone. However, ATU did not provide	conference when Omnitrans participated by telephone. However, ATU did not provide
evidence as to whether Omnitrans had ever appeared in person, how often Omnitrans did not	evidence as to whether Omnitrans had ever appeared in person, how often Omnitrans did not
appear in person, or what was different about the June 17 settlement conference and why A TU	appear in person, or what was different about the June 17 settlement conference and why ATU
chose not to proceed, other than Moore's argument that it did not get its five-day notice. 8
chose not to proceed, other than Moore's argument that it did not get its five-day notice."
ISSUES	ISSUES
Did Omnitrans bypass its bargaining obligations to ATU by establishing the Focus	1.1. Did Omnitrans bypass its bargaining obligations to ATU by establishing the Focus
Group to discuss EB bidding procedures?	Group to discuss EB bidding procedures?
2.	2. 	Did Omnitrans unilaterally change its grievance policy by denying ATU's	Did Omnitrans unilaterally change its grievance policy by denying ATU's
grievances regarding the Focus Group?	grievances regarding the Focus Group?
3.	3. Should Omnitrans be assessed attorney fees and costs for failing to appear in person	Should Omnitrans be assessed attorney fees and costs for failing to appear in person
at the informal settlement conference?	at the informal settlement conference?
CONCLUSIONS OF LAW	CONCLUSIONS OF LAW
Focus	Focus Group	Group
An employer may not communicate directly with employees to undermine or derogateAn employer may not communicate directly with employees to undermine or derogate
the representative's exclusive authority to represent unit members. (Muroc Unified School	the representative's exclusive authority to represent unit members. (Muroc Unified School
District (1978) PERB Decision No. 80.) Similarly, the employer violates the duty to bargain in	District (1978) PERB Decision No. 80.) Similarly, the employer violates the duty to bargain in
good faith when it bypasses the exclusive representative to negotiate directly with employees	good faith when it bypasses the exclusive representative to negotiate directly with employees
over matters within the scope of representation. (Walnut Valley Unified School District	over matters within the scope of representation. (Walnut Valley Unified School District
(1981) PERB Decision No. 160 (Walnut Valley).) However, once a policy has been	(1981) PERB Decision No. 160 (Walnut Valley).) However, once a policy has been
The official Notice of Informal Conference, sent by the Board agent to the parties on	The official Notice of Informal Conference, sent by the Board agent to the parties on
May 12, 2008, states that a request to change the date of the conference must be submitted in	May 12, 2008, states that a request to change the date of the conference must be submitted in
writing no less than five working days prior to the scheduled date.	writing no less than five working days prior to the scheduled date.
12	12

13
established by lawful means, an employer has the right to take necessary actions, including	established by lawful means, an employer has the right to take necessary actions, including
consulting with employees, to implement the policy. (Ibid.) To establish that an employer hasconsulting with employees, to implement the policy. (Ibid.) To establish that an employer has
unlawfully bypassed the union, the charging party must demonstrate that the employer
dealtunlawfully bypassed the union, the charging party must demonstrate that the employer dealt
directly with its employees (1) to create a new policy
of
general application, or (2) to
obtain
adirectly with its employees (1) to create a new policy of general application, or (2) to obtain a
waiver or modification of existing policies applicable to those employees. (Ibid.)	waiver or modification
of
existing policies applicable to those employees. (Ibid.)
As to work groups or discussion groups, in Oak Grove School District (1986)
PERBAs to work groups or discussion groups, in Oak Grove School District (1986) PERB
Decision No. 582 (Oak Grove), the school district had established a "Teachers Forum,"	Decision No. 582 (Oak Grove), the school district had established a "Teachers Forum,"
composed
of
staff representatives from each school, with the selection method determined by	composed of staff representatives from each school, with the selection method determined by
each principal; the union was not invited to participate as a separate entity. It met monthly andeach principal; the union was not invited to participate as a separate entity. It met monthly and
discussed various items, including those within the scope
of
representation as well as
those	discussed various items, including those within the scope of representation as well as those
currently being negotiated, although no actual negotiations took place at forum meetings. 	The
currently being negotiated, although no actual negotiations took place at forum meetings. The
Board found that the forum was a labor organization, and that by discussing negotiable items,	Board found that the forum was a labor organization, and that by discussing negotiable items,
it undermined the union's authority, and stated:	it undermined the union's authority, and stated:
This is not to say that all faculty councils or groups are per se	This is not to say that all faculty councils or groups are per se
unlawful, or that individual employees cannot speak to their	unlawful, or that individual employees cannot speak to their
employers about working conditions, including those within the	employers about working conditions, including those within the
scope
of
representation. But when the District sets up an	scope of representation. But when the District sets up an
organized group
of
teachers to meet at regular intervals on schoolorganized group of teachers to meet at regular intervals on school
time to discuss topics of mutual interest, it permits discussion of	time to discuss topics
of
mutual interest, it permits discussion
of
negotiable subjects at its own risk. 	[Id. at p. 18.]negotiable subjects at its own risk. [Id. at p. 18.]
The same reasoning was followed, and the same results reached, in Redwoods Community	The same reasoning was followed, and the same results reached, in Redwoods Community
College District (1987) PERB Decision No. 650 (Redwoods), where a representative	College District (1987) PERB Decision No. 650 (Redwoods), where a representative
committee set up by the college district made recommendations to management on negotiablecommittee set up by the college district made recommendations to management on negotiable
issues, and in Ventura Community College District (1994) PERB Decision No. 1073	issues, and in Ventura Community College District (1994) PERB Decision No. 1073
(Ventura), where the college district "crossed the line by
...
openly deferring to [the employee(Ventura), where the college district "crossed the line by . . . openly deferring to [ the employee
committee] positions on negotiable topics."	committee] positions on negotiable topics."
13

14
However, in County of Fresno (2004) PERB Decision No. 1731-M, the Board upheld	However, in County of Fresno (2004) PERB Decision No. 1731-M, the Board upheld
the dismissal of a charge which, in the dismissal letter, distinguished Oak Grove because the	the dismissal of a charge which, in the dismissal letter, distinguished Oak Grove because the
union was asked to, and did, provide the employer with a list of potential members to the	union was asked to, and did, provide the employer with a list of potential members to the
employee committee, and because it had agreed in writing that "further discussions could be	employee committee, and because it had agreed in writing that "further discussions could be
forthcoming if the County intended to make any changes that resulted from the	forthcoming if the County intended to make any changes that resulted from the
recommendations of the [committee]." The dismissal letter goes on to state that "SEIU had	recommendations of the [committee]." The dismissal letter goes on to state that "SEIU had
ample opportunity to inquire of its members on the committee or of management what the	ample opportunity to inquire of its members on the committee or of management what the
scope of the committee's responsibility was." The letter concludes that the charge failed to	scope of the committee's responsibility was." The letter concludes that the charge failed to
establish that the county's establishment of the committee was an attempt to bypass the union.	establish that the county's establishment of the committee was an attempt to bypass the union.
Here, the Focus Group was a representative body. Unlike Oak Grove, Omnitrans	Here, the Focus Group was a representative body. Unlike Oak Grove, Omnitrans
management did not choose its members; they volunteered. ATU was invited to have a	management did not choose its members; they volunteered. ATU was invited to have a
representative, ATU Executive Board member Wilkerson became a member, and ATU	representative, ATU Executive Board member Wilkerson became a member, and ATU
President Moore was specifically invited and attended one meeting. However, as in Oak	President Moore was specifically invited and attended one meeting. However, as in Oak
Grove and Redwoods, it met regularly, and drivers who attended were paid for their time and	Grove and Redwoods, it met regularly, and drivers who attended were paid for their time and
released from their driving duties.	released from their driving duties.
Further, while I do not see Focus Group meetings as "negotiations," the members did	Further, while I do not see Focus Group meetings as "negotiations," the members did
discuss negotiable subjects. In Anaheim City School District (1983) PERB Decision No. 364	discuss negotiable subjects. In Anaheim City School District (1983) PERB Decision No. 364
(Anaheim), the Board held that a bidding procedure is a mandatory subject of bargaining:	(Anaheim), the Board held that a bidding procedure is a mandatory subject of bargaining:
Since the various bus routes differed in the amount of time	Since the various bus routes differed in the amount of time
needed to complete them, the procedure for assigning bus drivers	needed to complete them, the procedure for assigning bus drivers
to a particular route directly determined the wages that employees	to a particular route directly determined the wages that employees
would receive, their hours of employment, and the amount of	would receive, their hours of employment, and the amount of
relief time they were entitled to during the workday. . . (w)e	relief time they were entitled to during the workday ... (w)e
conclude that the bidding procedure is reasonably and logically	conclude that the bidding procedure is reasonably and logically
related to wages and hours of employment . . . .	related to wages and hours of employment ....
(See also, Mt. San Antonio Community College District (1983) PERB Decision No. 297,	(See also, Mt. San Antonio Community College District (1983) PERB Decision No. 297,
where the employer unlawfully changed the rotation system for summer school assignments.)	where the employer unlawfully changed the rotation system for summer school assignments.)
14

15
Here, it is undisputed that a change in EB bidding procedure would have a general application	Here, it is undisputed that a change in EB bidding procedure would have a general application
to all EB drivers and would undoubtedly result in a change in work hours and wages for most,	to all EB drivers and would undoubtedly result in a change in work hours and wages for most,
if not all, EB drivers. As in Oak Grove, Omnitrans permitted "discussion of negotiable	
if
not all, EB drivers. As in Oak Grove, Omnitrans permitted "discussion
of
negotiable
subjects at its own risk," and as in Walnut Valley, these discussions could lead to
"a
new	subjects at its own risk," and as in Walnut Valley, these discussions could lead to "a new
policy
of
general application" for EB drivers.
policy of general application" for EB drivers.
I 	the 	It is not	I do not find that the EB bidding procedures are covered by the MOU. It is not	do not find that 	EB bidding procedures are covered by the MOU.
addressed in Article 42 section G, the only article which deals with the EB. Nor is it reserved	addressed in Article 42 section G, the only article which deals with the EB. Nor is it reserved
to the agency by Article 8, the management rights clause. A change in the order in whichto the agency by Article 8, the management rights clause. A change in the order in which
drivers bid for assignments is not a new operation or method for work to be done (section D) -drivers bid for assignments is not a new operation or method for work to be done (section D) -
the same work would be done in the same manner by whomever would perform it. Nor does itthe same work would be done in the same manner by whomever would perform it. Nor does it
fall within the agency's right to schedule employees, as a change in bidding order would havefall within the agency's right to schedule employees, as a change in bidding order would have
no effect on bus route schedules.	no effect on bus route schedules.
Graham's June 12, 2008, memo states his willingness to meet with Moore to discuss	Graham's June 12, 2008, memo states his willingness to meet with Moore to discuss
any concerns Moore might have that any changes would violate terms
of
the MOU or wereany concerns Moore might have that any changes would violate terms of the MOU or were
subject to meet and confer. Graham also stated this to Moore personally more than once, and	subject to meet and confer. Graham also stated this to Moore personally more than once, and
offered to meet and confer on the EB bidding process, but Moore rejected the offer,	offered to meet and confer on the EB bidding process, but Moore rejected the offer,
consistently responding that the entire scope
of
EB procedures must be negotiated. However,consistently responding that the entire scope of EB procedures must be negotiated. However,
Graham's memo was sent long after the last Focus Group meeting in February 2008, and doesGraham's memo was sent long after the last Focus Group meeting in February 2008, and does
not excuse those meetings. Further, the fact that Omnitrans had changed bidding procedures innot excuse those meetings. Further, the fact that Omnitrans had changed bidding procedures in
the past without negotiating with ATU, or that ATU's last proposal in 2007 was to "meet andthe past without negotiating with ATU, or that ATU's last proposal in 2007 was to "meet and
discuss" rather than "meet and confer," does not mean that the subject matter was no longer	discuss" rather than "meet and confer," does not mean that the subject matter was no longer
within the scope
of
representation or that A TU had "clearly and unmistakeably" waived itswithin the scope of representation or that ATU had "clearly and unmistakeably" waived its
right to negotiate. (Lucia Mar Unified School District (2001) PERB Decision No. 1440.)	right to negotiate. (Lucia Mar Unified School District (2001) PERB Decision No. 1440.)
Omnitrans did not have the right to go around the union and instead discuss this negotiable	Omnitrans did not have the right to go around the union and instead discuss this negotiable
15

16
subject with unit employees. (See, e.g., Clovis Unified School District (2002) PERB Decision
subject with unit employees. (See, e.g., Clovis Unified School District (2002) PERB Decision
No. 1504 (Clovis); employer may not deal directly with employees on matter which union
No. 1504 (Clovis); employer may not deal directly with employees on matter which union
opposed.)	opposed.)
Omnitrans failed to bargain in good faith with ATU by	Accordingly, I find that Omnitrans failed to bargain in good faith with ATU by	Accordingly, I find that
bypassing it and establishing the Focus Group to discuss EB bidding procedures, in violation	
bypassing it and establishing the Focus Group to discuss EB bidding procedures, in violation
of
MMBA section 3505. I further find that by this conduct, Omni trans interfered with theof MMBA section 3505. I further find that by this conduct, Omnitrans interfered with the
rights
of
unit employees to be represented by ATU in violation
of
section 3506, and denied
rights of unit employees to be represented by ATU in violation of section 3506, and denied
ATU its right to represent unit employees in violation
of
section 3503. (Clovis.)ATU its right to represent unit employees in violation of section 3503. (Clovis.)
Denial of grievance	Denial
of
grievance
a
In determining whether a party has made unlawful unilateral changes, PERB utilizes	In determining whether a party has made unlawful unilateral changes, PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School Districtnd the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.). Unilateral changes are considered "per se" violations
if(1980) PERB Decision No. 143.). Unilateral changes are considered "per se" violations if
Charging Party establishes that: (1) the employer implemented a change in policy concerning	
Charging Party establishes that: (1) the employer implemented a change in policy concerning
a matter within the scope
of
representation, and (2) the change was implemented before the	
a matter within the scope of representation, and (2) the change was implemented before the
employer notified the exclusive representative and gave it an opportunity to request	employer notified the exclusive representative and gave it an opportunity to request
negotiations. 	(Vernon Fire Fighters v. City
of
Vernon (1980) 107 Cal.App.3d 802; San
negotiations. (Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802; San
Joaquin County Employees Association v. City
of
Stockton (1984) 161 Cal.App.3d 813; Grant
Joaquin County Employees Association v. City of Stockton (1984) 161 Cal.App.3d 813; Grant
Joint Union High School District (1982) PERB Decision No. 196.)	Joint Union High School District (1982) PERB Decision No. 196.)
In the instant case, the parties' MOU limits the definition
of
a grievance to a violation
In the instant case, the parties' MOU limits the definition of a grievance to a violation
of
the terms
of
the MOU, written personnel rules and regulations, or department rules andof the terms of the MOU, written personnel rules and regulations, or department rules and
regulations; it specifically excludes policy and past practice. Moore's grievance complains
regulations; it specifically excludes policy and past practice. Moore's grievance complains
about the formation of the Focus Group and proposed changes to EB procedures, and	about the formation of the Focus Group and proposed changes to EB procedures, and
Caldwell's grievance complains about new bid posting procedures; they both cite various	Caldwell's grievance complains about new bid posting procedures; they both cite various
16

MOU violations. Omnitrans denied the grievances on the grounds that they did not conform to	MOU violations. Omnitrans denied the grievances on the grounds that they did not conform to
the MOU's definition of a grievance and that no MOU provision was violated.	the
MOU's
definition
of
a grievance and that no MOU provision was violated.
I agree with Omnitrans. The MOU articles cited in Moore's grievance regarding the	I agree with Omnitrans. The MOU articles cited in Moore's grievance regarding the
preamble, exclusive recognition
of
A TU, warranty
of
capacity, sole and entire understanding,	preamble, exclusive recognition of ATU, warranty of capacity, sole and entire understanding,
VJ.	
p.mployp.e	
V	
r1"gh+s
l,
,u..1.	
"nd rn,P.rtime	
VYV
1,,J..1..J.	
-nay	
J:-'	
'"4,.1.\,,,',JVl,U,J..1.5VJ..1.1,,J.	
,,,.,,
C'f"'\
f,:,nrrAntial
to
thA
rr,-auamAn ofh1"s "Ompla1"nt
employee rights, and overtime pay, are so tangential to the gravamen of his complaint, i.e., the	
J.I,
	\...LVE,J.
	\"
	J..1.V.LJ.
	.L 	V
	.u.,
1·
• e
.,
the
formation of the Focus Group, as to be legitimately seen by Omnitrans as irrelevant	formation
of
the Focus Group, as to be legitimately seen by Omnitrans as irrelevant
boilerplate. The only MOU article relevant to his complaint is Article 42, Seniority and Workboilerplate. The only MOU article relevant to his complaint is Article 42, Seniority and Work
specifically	Assignment, specifically section G, Extra Board Posting. However, that section specifies time	Assignment, 	section G, Extra Board Posting. However, that section specifies time
periods when bids are to be posted and how assignments are to be made; but does not specify	periods when bids are to be posted and how assignments are to be made; but does not specify
what posting procedures are to be used or how the bidding order is to be determined, other than	what posting procedures are to be used or how the bidding order is to be determined, other than
that it must be by seniority. What the Focus Group discussed was how the bidding order is to	that it must be by seniority. What the Focus Group discussed was how the bidding order is to
be determined, and there is no evidence that any
of
its suggestions would abrogate the seniority	be determined, and there is no evidence that any of its suggestions would abrogate the seniority
requirement. 	These discussions therefore do not appear to contradict any term
of
the MOU.	requirement. These discussions therefore do not appear to contradict any term of the MOU.
Caldwell also cited Article 42 section G as well as "past practice." However, past practice is	Caldwell also cited Article 42 section
Gas
well as "past practice." However, past practice is
specifically excluded from the MOU definition
of
a grievance. Thus, Omnitrans could	specifically excluded from the MOU definition of a grievance. Thus, Omnitrans could
legitimately deny both grievances on the grounds that its conduct did not violate the
MOU
andlegitimately deny both grievances on the grounds that its conduct did not violate the MOU and
also, therefore, that the grievances do not conform with the MOU's definition
of
a grievance.	also, therefore, that the grievances do not conform with the MOU's definition of a grievance.
17
More importantly, ATU presented no evidence that Omnitrans' denials
of
theseMore importantly, ATU presented no evidence that Omnitrans' denials of these
grievances are any different from its denials
of
prior grievances or that it has otherwise	grievances are any different from its denials of prior grievances or that it has otherwise
changed the grievance procedure.	changed the grievance procedure.
I therefore do not find that by denying these grievances, Omnitrans changed the	I therefore do not find that by denying these grievances, Omnitrans changed the
grievance policy stated in the MOU.grievance policy stated in the MOU.
17

18
costs	Attorney's fees and costs	Attorney's fees and
Educational Employment Relations Act (EERA)9 section 3541.S(c) gives PERB theEducational Employment Relations Act (EERA)' section 3541.5(c) gives PERB the
power "to take such affirmative action
...
as will effectuate the policies
of
this chapter." In	power "to take such affirmative action . . . as will effectuate the policies of this chapter." In
(1998) PERB	Hacienda La Puente Unified School District (1998) PERB Decision No. 1280-E, the Board,	Hacienda La Puente Unified School District 	Decision No. 1280-E, the Board,
citing this section, stated its long-held position that attorney's fees and costs were justified	citing this section, stated its long-held position that attorney's fees and costs were justified
dilatory, pursued in bad faith or	"where a case is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or	"where a case is without arguable merit, frivolous, vexatious,
otherwise an abuse
of
process." In addition, such an award is appropriate where "incurred as a	otherwise an abuse of process." In addition, such an award is appropriate where "incurred as a
result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary	result
of
bad faith actions or tactics that are frivolous or solely intended to cause unnecessary
delay." (Ibid.) The above principles have been applied to cases brought under the MMBA.	delay." (Ibid.) The above principles have been applied to cases brought under the MMBA.
(See, Marin County Law Library (2004) PERB Decision No. 1655a-M, where charging party	(See, Marin County Law Library (2004) PERB Decision No. 1655a-M, where charging party
was assessed attorney's fees and costs for its attorney's filing
of
a frivolous and derogatorywas assessed attorney's fees and costs for its attorney's filing of a frivolous and derogatory
request for reconsideration
of
a Board order.)	request for reconsideration of a Board order.)
Thus, legal precedent allows for an award
of
attorney's fees and costs in the instant	Thus, legal precedent allows for an award of attorney's fees and costs in the instant
case, for Omnitrans' failure to appear in person at the settlement conference. However, I do	case, for Omnitrans' failure to appear in person at the settlement conference. However, I do
not find that the agency engaged in a deliberate attempt to delay the proceedings,
as
its	not find that the agency engaged in a deliberate attempt to delay the proceedings, as its
attorney was available by telephone. Nor do I find that it acted in bad faith. 	I am aware thatattorney was available by telephone. Nor do I find that it acted in bad faith. I am aware that
Omnitrans failed to make a timely request that the hearing be rescheduled, that Greene notified	Omnitrans failed to make a timely request that the hearing be rescheduled, that Greene notified
the Board agent only the day before the informal hearing that neither she nor her client would	the Board agent only the day before the informal hearing that neither she nor her client would
attend, and that neither the Board agent, ATU, or Flynn were aware
of
this situation until the	attend, and that neither the Board agent, ATU, or Flynn were aware of this situation until the
morning of the hearing, after which Flynn had already come to Los Angeles from Sanmorning of the hearing, after which Flynn had already come to Los Angeles from San
Francisco. However, I do not agree with ATU that "Omnitrans' failure to appear resulted in	Francisco. However, I do not agree with ATU that "Omnitrans' failure to appear resulted in
the cancellation of the informal conference." As noted above, A TU acknowledged that it hadthe cancellation of the informal conference." As noted above, ATU acknowledged that it had
participated in a prior settlement conference when Omnitrans appeared by telephone, and it didparticipated in a prior settlement conference when Omnitrans appeared by telephone, and it did
9
EERA is codified at Government Code section 3540 et seq.	EERA is codified at Government Code section 3540 et seq.
18

not proffer any reason why the instant settlement conference was different, or why it could not	not proffer any reason why the instant settlement conference was different, or why it could not
proceed under the circumstances.	proceed under the circumstances.
I do not find Greene's conduct so frivolous or egregious as to award attorney fees or	I do not find Greene's conduct so frivolous or egregious as to award attorney fees or
costs. Accordingly, ATU's motion is DENIED. However, I do not condone Greene's conduct,	costs. Accordingly, ATU's motion is DENIED. However, I do not condone Greene's conduct,
and this Order should be taken as a warning that sanctions may be assessed should this	and this Order should be taken as a \Varning that sanctions may be assessed should this
situation occur again in the future.	situation occur again in the future.
REMEDY	REMEDY
Section 3509(b) of the Act gives the Board the exclusive jurisdiction to determine "the	Section 3509(b) of the Act gives the Board the exclusive jurisdiction to determine "the
appropriate remedy necessary to effectuate the purposes of this chapter .... "	appropriate remedy necessary to effectuate the purposes of this chapter . . . ."
Here is has been found that Omnitrans violated sections 3505, 3506, and 3503 of the	Here is has been found that Omnitrans violated sections 3505, 3506, and 3503 of the
Act by bypassing A TU and dealing directly with unit employees through its establishment ofAct by bypassing ATU and dealing directly with unit employees through its establishment of
the Focus Group and discussions on EB bidding procedures. It is therefore appropriate that	the Focus Group and discussions on EB bidding procedures. It is therefore appropriate that
Omnitrans be ordered to cease and desist from such conduct. It is also appropriate that	Omnitrans be ordered to cease and desist from such conduct. It is also appropriate that
Omnitrans be required to post a notice incorporating the terms of this order, signed by an	Omnitrans be required to post a notice incorporating the terms of this order, signed by an
authorized agent of Omni trans indicating that it wiil comply with the terms thereof. The notice	authorized agent of Omnitrans indicating that it will comply with the terms thereof. The notice
shall not be defaced, reduced in size or otherwise altered. Posting such a notice will provide	shall not be defaced, reduced in size or otherwise altered. Posting such a notice will provide
employees with notice that Omnitrans has acted unlawfully and is being required to cease and	employees with notice that Omnitrans has acted unlawfully and is being required to cease and
desist from this activity and otherwise to comply with the order. It effectuates the purposes of	desist from this activity and otherwise to comply with the order. It effectuates the purposes of
the Act that employees be informed of the resolution of this controversy and of Omnitrans'	the Act that employees be informed of the resolution of this controversy and of Omni trans'
readiness to comply with the ordered remedy. (Placerville Union School District (1978) PERBreadiness to comply with the ordered remedy. (Placerville Union School District (1978) PERB
Decision No. 69.)	Decision No. 69.)
PROPOSED ORDER	PROPOSED ORDER
19
Based on the foregoing and the record as a whole, it has been found that Omnitrans did	Based on the foregoing and the record as a whole, it has been found that Omnitrans did
not violate the Act by unilaterally changing the grievance policy; therefore those portions ofnot violate the Act by unilaterally changing the grievance policy; therefore those portions of
19

the complaint in the matter
of
Amalgamated Transit Union Local 1704 v. Omnitrans,
Case Nothe complaint in the matter of Amalgamated Transit Union Local 1704 v. Omnitrans, Case No.
LA-CE-427-M are hereby DISMISSED. It has also been found that Omnitrans violated	LA-CE-427-M are hereby DISMISSED. It has also been found that Omnitrans violated
sections 3505, 3506, and 3503
of
the Act by bypassing Amalgamated Transit Union Local	sections 3505, 3506, and 3503 of the Act by bypassing Amalgamated Transit Union Local
1704 (A TU) and dealing directly with unit employees on negotiable subjects. Pursuant to	1704 (ATU) and dealing directly with unit employees on negotiable subjects. Pursuant to
Government	Government Code section 3509(b), it is hereby ORDERED that Omnitrans, its governing	Code section 3509(b), it is hereby ORDERED that Omnitrans, its governing
board and its representatives shall:	board and its representatives shall:
A.	A. 	CEASE AND DESIST FROM:	CEASE AND DESIST FROM:
1
1.. 	Bypassing ATU and dealing directly with bargaining unit employees
onBypassing ATU and dealing directly with bargaining unit employees on
negotiable subjects, including bidding procedures for Extra Board assignments;	negotiable subjects, including bidding procedures for Extra Board assignments;
2.
2. 	Interfering with the rights
of
employees to be represented by A TU;Interfering with the rights of employees to be represented by ATU;
33.. 	Denying to ATU its right to represent bargaining unit employees.	Denying to A TU its right to represent bargaining unit employees.
B.	B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:	EFFECTUATE THE POLICIES OF THE ACT:
1
1.. 	Upon demand, bargain with ATU regarding any change in Extra
Board	Upon demand, bargain with ATU regarding any change in Extra Board
procedures, including bidding procedures for Extra Board assignments;	procedures, including bidding procedures for Extra Board assignments;
2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,	2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in Omnitrans customarily are posted,	post at all work locations where notices to employees in Omnitrans customarily are posted,
copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an	copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent
of
Omnitrans, indicating that it will comply with the terms
of
this Order.authorized agent of Omnitrans, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period
of
thirty (30) consecutive workdays. ReasonableSuch posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or coveredsteps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.	with any other material.
3.
3. 	Written notification of the actions taken to comply with this Order shall	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),	be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
20
.
20

21
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by	or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Orderthe General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on ATU.	shall be concurrently served on ATU.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed	Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the	Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this	Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:	Decision. The Board's address is:
Public Employment Relations Board	Public Employment Relations Board
Attention: Appeals Assistant	Attention: Appeals Assistant
1031 18th Street	I 031 18th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
(916) 322-8231	(9 I 6) 322-8231
FAX: (916) 327-7960	FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by	In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such	page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)	exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB	A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code	business day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
section 11020(a).) A document is also considered "filed" when received by facsimile	section 1 1020(a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),	which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copiesprovided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see	and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)	also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its	Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served	filing upon each party to this proceeding. Proof of service shall accompany each copy served
21

22
tit.
	on
a party or filed with the Board itself. (See Cal. Code Regs.,
	8,
secs. 32300, 32305,
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)	32140, and 32135(c).)
Ann L. Weinman	Ann L. Weinman
Administrative Law Judge	Administrative Law Judge
22