Omnitrans (PERB 2121M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMALGAMATED TRANSIT UNION LOCAL
1704,
Charging Party,
V.
OMNITRANS,
Respondent.
Case No. LA-CE-358-M
PERB Decision No. 2121-M
June 25, 2010
Appearances: Neyhart, Anderson, Flynn & Grosboll by William J. Flynn and Benjamin K.
Lunch, Attorneys, for Amalgamated Transit Union Local 1704; County of San Bernardino by
Carol A. Greene, Deputy County Counsel, for Omnitrans.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Omnitrans, and on cross-exceptions filed by
Amalgamated Transit Union Local 1704 (ATU), to the proposed decision of an administrative
law judge (ALJ). The complaint alleged that Omnitrans violated the Meyers-Milias-Brown
Act (MMBA) 1 by terminating the employment of coach operator2 Dale Moore (Moore)
because of his protected activities as ATU president. The ALJ concluded the termination
constituted unlawful retaliation in violation of MMBA sections 3 503 and 3 506 because it was
motivated by Moore's union activities and Omnitrans failed to establish that it would have
terminated Moore absent this protected activity.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 "Coach operator" is Omnitrans' term for a bus driver.

The Board has reviewed the proposed decision and the record in light of Omnitrans'
exceptions, ATU's cross-exceptions and response to exceptions, and the relevant law. Based
on this review, the Board reverses the proposed decision for the reasons discussed below.
FACTUAL BACKGROUND
Ornnitrans is a joint powers agency that provides public bus service in San Bernardino
County. ATU is a recognized employee organization representing a bargaining unit of
Omnitrans coach operators.
Omnitrans operates two facilities: the West Valley facility in Montclair employs
approximately 130 regular (full-time) drivers; the East Valley facility in San Bernardino
employs approximately 250 regular drivers. Omnitrans also has "extra board" drivers who fill
in for absences or unfilled vacancies.3 There are approximately 170 buses in the fleet, 95
percent of which are usually in route at any given time. Bus service runs from 3: 15 a.m. to
11 p.m. every day, and driver shifts vary within that time period. Each facility has a dispatcher
who fills out the driver schedules each day between 4 p.m. and 6 p.m. for the following day.
ATU and Omnitrans were parties to a memorandum of understanding (MOU) effective
April 1, 2004 through March 31, 2007. During early 2007, the parties engaged in negotiations
for a successor MOU. In mid-March, Omnitrans presented its last, best and final offer
(LBFO), which ATU took to the unit members with the recommendation that it be rejected.
On March 30, 2007, unit members voted to reject the LBFO. As of the date of Moore's
termination, May 3, 2007, the parties had neither reached agreement on a successor MOU nor
3 Moore testified that there are approximately 50 extra board drivers at the East Valley
facility. 	While the record does not indicate the number of extra board drivers at West Valley,
it does establish that extra board drivers can work shifts at either facility.
2

reached impasse. Accordingly, the following relevant MOU provisions were in effect at the
time of the alleged violation:4
Article 27, Attendance
Method of Counting Absences. This no-fault absenteeism policy
will count absences as follows:
One-half day (to 4/year) = one-half day
One day = one absence
Two or more consecutive work days off for the same reason = to
a maximum of two full absences
Ten ( 10) chargeable, counted absences within a floating twelve
(12) month period will be considered grounds for discharge. Any
periods not actively working for more than 14 calendar days will
extend the 12-month period by a like number of days counted
after the fourteenth calendar day on the first occurrence and from
the first day for all subsequent occurrences each calendar year.
180 calendar days between counted absences will clear all
counted absences from the employee's records. An employee
must be actively working during this 180 day period. Actively
working is defined as actually working, or while on vacation, jury
duty, Agency compensated military duty, non-operational
holidays or authorized union business.
Method of Reviewing Absences. All days absent are counted
absences except if an employee is in one of the following
categories: approved leave of absence of fourteen (14) days or
more, vacation, holiday, bereavement, jury or military duty, or
authorized union business or Agency confirmed FMLA, CFRA,
PDL or absences specifically protected by State or Federal
legislation ....
Progressive Discipline. Progressive discipline will be applied to
employees who have excessive absenteeism. Specific counted
absence dates can only be grieved (in accordance with Article 22)
when they first appear on any warning notice.
Antelope Valley Union High School District (1998) PERB Decision No. 1287.
3

A. A sixth counted absence in a floating 12-month period will
result in a verbal warning with written confirmation and
counseling to the employee.
B. An eighth counted absence in a floating 12-month period will
result in a two (2) day suspension.
C. A ninth counted absence in a floating 12-month period will
result in a four (4) day suspension.
D. A tenth counted absence in a floating 12 month period will
result in discharge.
All charged absences that have been over turned by the employer
through the counseling and review process due to mitigating
circumstances or overturned through the grievance procedure,
shall not be counted as just and reasonable cause for the purpose
of progressive discipline.
(Italics added.)
Article 19, Shop Steward's Provision
Shop Stewards will be granted a reasonable amount of time,
without loss of pay or benefits, for the purpose of meeting with
the Agency representatives to process grievances, provided,
however, that such time does not interfere with normal
department operations.
Upon specific request of the A TU President/Business Agent, the
Agency will initially pay wages lost from regularly assigned
work, at the employee's current wage rate, to A TU Officers and
Shop Stewards for up to a total of 7 5 times (seventy-five (7 5)
times is understood to mean 75 eight hour days which may be
taken in increments of four (4) hours) per calendar year for all
Officers and Stewards. The ATU Officer or Steward must also
submit an· 'Omnitrans Employee Vacation/Sick Leave Request
Form' at least 24 hours in advance (exclusive of Saturdays,
Sundays and holidays). The ATU will reimburse the Agency for
these wages on a Quarterly basis. Omnitrans will pay all benefits
associated with these hours at the time they are incurred. These
hours will also be considered authorized union business and an
active work status.
(Italics added.)
4

Article 21, Leave
of
Absence - Union Position
An
employee's election as an officer or member
of
the Executive
Board
of
the Union or
appointment to act
on
Union business shall
be considered a good and sufficient reason for a leave
of
absence.
Any employee elected or appointed to a full-time position in the
Union shall be given an unpaid leave
of
absence for the duration
of
their term
of
office, which period may be extended upon
submittal
of
written request. During such Leave
of
Absence, no
benefits or wages shall be payable by the Agency. Upon return
from such leave
of
absence, the employee shall be reinstated
without loss
of
seniority.
Moore had been a regular driver for Omnitrans since 1993. For some time, his
work
shift had been 4 a.m. to 12 noon. Since 1996 he had been active with ATU, serving as shop
steward, executive board member, and president from 1999 to 2001, and again from January
2005 until at least October 2007.
On
February 15, 2007, Moore received a "Notice
of
Proposed Disciplinary Action:
Dismissal" from Douglas Stanley (Stanley), West Valley Transportation Manager, citing MOU
Article 27 and listing the following charged absences:
3/29/2006 	LWOP-UB[5l No Leave Slip Turned in 	I
4/21/2006 	Sick 	2
4/24/2006 	Sick 	3
5/22/2006	
Other-
No Vaiid Medical Card 	4
6/9/2006 	L WOP - Called Disp @ 0300 Hrs 	5
6/26/2006 	L WOP-UB No Leave Slip Turned in 	6
6/30/2006 	L WOP Personal 	7
7/18/2006 	Missout/AWOL No Leave Slip
Turned in[6 8	l
7/31/2006 	L WOP-UB Called Disp on Sun 7/30/06
No Leave Slip 	9
1/18/2007 	L WOP-UB < 24 Hrs notice
& Scot Informed no due to
MP shortage
5
"L WOP" stands for leave without pay; "UB" stands for union business.
6 A "miss-out" is charged when an empioyee does not call in or report for work.
5

The memorandum explains the last absence as follows:
On January 18, 2007, you were off work due to LWOP-UB. You
called Scot Huffman [Huffman]7 on 1/17/07 and asked off for
Union Business. You stated to him that you had forgotten to
submit a request. After looking at manpower needs for that day
and discussing the matter with me, Scot called you back and
informed you that due to manpower needs for 1/18/07, that your
request to be off was denied. You then stated to Scot that you
would not be in anyway. This was your tenth (10) chargeable,
counted absence.
The memorandum also states:
This proposed dismissal will be held in abeyance in order that
you may avail yourself of the grievance procedures under Article
22 of the above mentioned [MOU]. During the time period in
which the dismissal is held in abeyance, you will be allowed to
continue working in your normal capacity as a Coach Operator.
(Italics and underscoring omitted.)
The memorandum gave Moore five days to respond in writing and/or orally. On
February 18, Moore responded by letter to both Stanley and John Steffon (Steffon), East
Valley Transportation Manager, and requested a due process hearing. He sent another letter to
Steffon on February 27 defending his actions and stating that he did not want a verbal hearing.
Moore called in sick on March 8 and 9, 2007, after the agency's doctor refused to
renew his medical certificate because of high blood pressure. Omnitrans provisionally
approved Family Medical Leave Act (FMLA) leave for the two days. However, Moore never
turned in the required medical certification. Moore testified that when he spoke with Scott
Graham (Graham), Omnitrans' Operations Director, on March 9, Graham asked :Moore if he
wanted to use vacation to cover the absence. From this conversation, Moore assumed that
Omnitrans would charge the two days to his vacation bank and therefore did not turn in a
vacation request. Omnitrans charged Moore with an absence for each of these days.
7 Huffman is Omnitrans' dispatch supervisor.
6

Moore requested to take union leave on March 5, 19, 29 and 30, April 4, 5, 10, 12, 16,
17, and 19, and May 2 and 3, 2007. In each case, Moore turned in an "Omnitrans Employee
Vacation/Sick Leave Request Form" at least 24 hours in advance. Huffman denied each
request in writing, citing an "extreme lack of manpower. "8 For all but the first two dates,
Moore received the denial before the date for which leave was requested; Moore testified that
he did not receive notice of the denials for March 5 and 19 until after those dates. Because
Moore did not report for work on any of these dates, Omnitrans charged them as absences
pursuant to MOU Article 27. Omnitrans issued Moore successive notices of proposed
dismissal incorporating each of these charged absences.
Meanwhile, on March 17, 2007, Moore filed two grievances, one over the original
proposed dismissal and the other over Omni trans' placement of the proposed dismissal in
abeyance. Omnitrans denied both grievances at Step 1.
On May 2, 2007, a Step 2 hearing on Moore's grievances was held before Employee
Relations Manager Michael Lloyd (Lloyd). Lloyd issued his decision on May 3. He
invalidated Moore's eighth charged absence of July 18, 2006, because it violated a provision of
the MOU.9 Lloyd also voided the abeyance clause in all of the disciplinary notices.
That same day, Stanley called Moore, informed him that he would be dismissed and
instructed him to meet with Steffan the following day. Upon reporting to human resources on
May 4, Moore received an Order of Dismissal that stated, in relevant part:
In accordance with the attached Grievance #07-17 and #07-18
Step 2 Responses and Findings, dated May 3, 2007, you are
Moore also requested union business leave for MOU negotiations on March 7, 13, and
14, and May 1. Those requests were granted.
9 Article 29 of the MOU requires that an employee receive notice of disciplinary action
within 40 days of the alleged misconduct. Lloyd found that Omnitrans failed to give notice of
discipline for Moore's July 18 absence within that time limit.
7

dismissed from your employment from Omnitrans effective
today, Thursday, May 3, 2007.[10]
DISCUSSION
The complaint alleged that Omnitrans terminated Moore's employment because of his
activities as ATU president. The ALJ concluded the termination was unlawful because
Omnitrans had no contractual right to deny Moore's union business leave requests and its
denials of his requests were pretextual because no manpower shortage existed.
Omnitrans contends in its exceptions that a manpower shortage did in fact exist at the
time the requests were denied and therefore both its denials and the charged absences arising
from them were legitimate. Omnitrans further argues that the ALJ made numerous factual and
legal errors that require reversal of the proposed decision. ATU urges affirmance of the
proposed decision but also raises two cross-exceptions: (1) A TU has a statutory right to union
leave; and (2) a manpower shortage can never justify denial of union leave.
"When a party files a statement of exceptions to an ALJ's proposed decision, the Board
reviews the record de novo, and is empowered to reweigh the evidence and draw its own
factual conclusions. Although the Board generally gives deference to the ALJ's credibility
determinations, which may be based on considerations such as witness demeanor (Beverly
Hills Unified School Dist (1990) PERB Dec. No. 789 [14 PERC 7121042]), it is not bound by
the ALJ's evaluation of the weight to be given to disputed evidence. '[T]he [Board], not the
hearing officer, is the ultimate fact finder, entitled to draw inferences from the available
evidence."' ( California Teachers Assn. v. Public Employment Relations Bd. (2009) 169
10 On May 8, 2007, Moore received in the mail a "Notice of Proposed Disciplinary
Action - Suspension" imposing a one-day suspension for five miss-outs between March 19 and
May 2, and advising that seven miss-outs may result in dismissal. Because the only violation
alleged in the complaint is Moore's termination, we do not consider whether issuance of this
memorandum violated the MMBA.
8

Cal.App.4th 1076, 1086-1087, quoting McPherson v. Public Employment Relations Bd. (1987)
189 Cal.App.3d 293, 304.)
1. 	Prima Facie Case
To establish a prima facie case of retaliation against an employee in violation of
MMBA section 3506 and PERB Regulation 32603(a),11 the charging party must show that:
(1) the employee exercised rights under MMBA; (2) the employer had knowledge of the
exercise of those rights; (3) the employer took adverse action against the employee; and ( 4) the
employer took the adverse action because of the employee's exercise of those rights. (Novato
Unified School District (1982) PERB Decision No. 210; San Leandro Police Officers Assn. v.
City of San Leandro (1976) 55 Cal.App.3d 553.)
It is undisputed that Moore engaged in protected activity when he: (1) served as ATU
president and a member of ATU's bargaining team (Klamath-Trinity Joint Unified School
District (2005) PERB Decision No. 1778); (2) filed two grievances on March 17, 2007 (Bay
Area Air Quality Management District (2006) PERB Decision No. 1807-M); and (3) requested
and used union business leave to participate in ATU activities. (Omnitrans (2008) PERB
Decision No. 1996-M; City & County of San Francisco (2004) PERB Decision No. 1664-M.)
It is also undisputed that Omnitrans was aware of each of these activities. Omnitrans took
adverse action against Moore when it terminated his employment. (Rainbow Municipal Water
District (2004) PERB Decision No. 1676-M.)
To establish the final element of the prima facie case, the charging party must show that
the employee's protected activity was a motivating factor in the employer's decision to impose
the adverse action. (County of San Joaquin (Health Care Services) (2004) PERB Decision
No. 1649-M). "PERB has long recognized that direct evidence of discriminatory intent - the
11 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
9

proverbial 'smoking gun' - is rarely possible." (Berkeley Unified School District (2003) PERB
Decision No. 1538.) Therefore, the employer's motivation may be proven by either direct or
circumstantial evidence, or a combination of both. (Carlsbad Unified School District (1979)
PERB Decision No. 89.)
Omnitrans admittedly terminated Moore for being absent from work on dates when
Moore engaged in protected union activity. This constitutes direct evidence of Omnitrans'
discriminatory intent and is sufficient in itself to establish that Moore's union activity was a
motivating factor in Omnitrans' decision to terminate his employment. (Los Angeles County
Superior Court (2008) PERB Decision No. 1979-C.) Consequently, ATU has established a
prima facie case of retaliation.
2. 	Employer's Affirmative Defense - The "But For" Test
Because A TU has established a prima facie case of retaliation, Omnitrans bears the
burden of proving that it would have taken the adverse action even if Moore had not engaged in
protected activity. (Novato Unified School District, supra; Martori Brothers Distributors v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251 NLRB
1083, 1089.) Thus, when it appears that the adverse action was motivated by both valid and
invalid reasons, "the question becomes whether the [adverse action] would not have occurred
'but for' the protected activity." (Martori Brothers Distributors, supra, 29 Cal.3d at p. 729.)
The "but for" test is "an affirmative defense which the employer must establish by a
preponderance of the evidence." (McPherson, supra, 189 Cal.App.3d at p. 304.) For the
following reasons, we conclude Omnitrans has met its burden to establish this defense.
It appears from the language in the Order of Dismissal that Omnitrans removed
Moore's termination from abeyance and implemented it in response to Lloyd's grievance
ruling that the abeyance clause of the original notice of proposed dismissal was invalid.
However, Lloyd's ruling also invalidated the charged absence for July 18, 2006, one of the 10
10

absences upon which the original notice was based. Consequently, we must examine the
charged absences for the 12 month period ending on May 3, 2007, the date
of
termination, to
determine whether there were sufficient charged absences in the successive dismissal notices
up to that date to support the termination under Article 27
of
the MOU and,
if
so, whether
those absences would have been charged
if
Moore had not engaged in protected activity.
a. 	Absences Unrelated To ATU Business
Omnitrans charged Moore for an absence on May 22, 2006, when he could not drive
because he did not have a copy
of
his medical card with him.
12
At the hearing, Moore could
not remember the reasons for his charged absences on June 9 and 30, 2006, and February 16,
2007; the record does not indicate that Moore conducted ATU business on those days.
Omnitrans charged Moore with absences on March 8 and 9, 2007, because he did not submit a
medical certification for FMLA leave or a request to charge the days as vacation leave. We
find nothing in the record to invalidate any
of
these charged absences nor does A TU contend
they were the product
of
union animus. Therefore, we find that Omnitrans properly charged
Moore with these six absences during the relevant 12 month period.
b. 	Absences Charged For Failure To Properly Request Union Business Leave
Omnitrans charged Moore with five absences during the relevant 12 month period
because he failed to properly request union business leave before taking a full day
off
to
conduct ATU business. In Omnitrans, supra, PERB Decision No. 1996-M, the Board, after an
exhaustive examination
of
the record, concluded that A TU and Omni trans had an enforceable
past practice that a request for union business leave must be made on the "Omnitrans
A license to operate a commercial motor vehicle, including a bus, is valid only when
a current medical certificate "is within the licensee's immediate possession." (V eh. Code,
§ 12804.9, subd. (c).)
11

Employee Vacation/Sick Leave Request Form" and must be submitted at least 24 hours before
the requested time off. 13 The record in this case does not support overturning that conclusion.
For each of these five charged absences, Moore failed to comply with the past practice
for submission of union business leave requests. Moore was charged with an absence for
June 26, 2006, because he did not submit a leave request form for that date. Moore testified
that he submitted a request form yet ATU did not produce a copy of the form at the hearing.
Given that ATU produced a copy of every other union business leave request form Moore
submitted during this time, it is reasonable to infer that a form does not exist for June 26, 2006.
Accordingly, we find Moore did not submit a request form for that date and therefore this
absence was properly charged.
On July 31, 2006, January 18, 2007, and March 23 and 26, 2007, Moore called dispatch
the evening before his scheduled 4:00 a.m. shift and informed the dispatcher that he would be
taking union business leave the following day. Moore did not submit a leave request form for
any of these dates. All of the phone calls were made less than 24 hours before the start of his
scheduled shift. Because they failed to meet the requirement that union business leave requests
be submitted in writing at least 24 hours before the leave is to begin, each of these four
absences was properly charged. (Omnitrans, supra, PERB Decision No. 1996-M.)
Adding the five charged absences for failure to properly request union leave to those
that did not involve union business, we find that Moore had 11 properly charged absences as of
the date of his termination. While these absences were sufficient to justify termination under
The parties make the same arguments about the applicable union business leave
procedures in this case that they made in Omnitrans, supra, PERB Decision No. 1996-M.
Because those arguments were thoroughly addressed in that decision, we do not reiterate them
or the Board's analysis of them here. 	Omnitrans, supra, PERB Decision No. 1996-M was
summarily affirmed by the California Court of Appeal for the Fourth District, Division Two,
on February 3, 2010. The California Supreme Court denied ATU's petition for review of that
decision on March 18, 2010.
12

Article 27 of the MOU, we nonetheless address the remaining charged absences because it is
unclear from the Order of Dismissal whether they played a part in the decision to dismiss
Moore.
c. 	Absences Charged For Failure To Report To Work On Day For Which Union
Business Leave Denied
Omnitrans charged Moore with 13 absences between March 5 and May 3, 2007, for
failure to report to work on a day for which his request for union business leave had been
denied. In all cases, Moore submitted a written leave request more than 24 hours before the
leave was to begin and the request was denied by the dispatch supervisor due to "an extreme
lack of manpower."
The ALJ concluded that Omnitrans had no contractual right to deny Moore's properly
submitted union business leave requests because the term "authorized union business" in the
MOU meant union business authorized by ATU, not Omnitrans. In Omnitrans, supra, PERB
Decision No. 1996-M, the Board concluded that "the phrase 'authorized union leave' in Article
[27] 14 is reasonably interpreted to include Article 19 union paid leave as well as properly
noticed union leave not covered by the MOU which is authorized by Omnitrans." (Italics
added.) In that same decision, the Board held that Omnitrans lawfully denied requests for
union leave to conduct A TU business unrelated to representation of Omnitrans employees.
The Board thus found that Omnitrans had the contractual right to approve or deny requests for
union leave. Nothing in the record in this case compels a different conclusion.
The Board's conclusion in Omnitrans, supra, is consistent with the longstanding
principle that participation in union activities does not shield an employee from routine
employment decisions or insulate the employee from disciplinary action for misconduct.
The decision mistakenly refers to the attendance article as Article 24, which was the
attendance article in the parties' 2001-2004 MOU.
13

(Trustees of the California State University (2006) PERB Decision No. 1853-H; Los Angeles
Unified School District (1992) PERB Decision No. 957.) Thus, when an employer has a
neutral policy governing a particular subject, an employee may be disciplined for violating that
policy even if the violation involves union activity. For example, in Los Angeles County
Superior Court, supra, the Board upheld discipline of a union president for sending union
meeting announcements via the court's email system when the emails violated a court policy
that limited the number of recipients of non-court business emails.
With regard to an employer's attendance policy, one court has stated: "Just as an
employee cannot 'shield himself from all possibility of termination merely by becoming a
union activist,' [citation], neither can a union official - absent a bargain to that effect - shield
himself from ever having to show up for work merely by conducting union business." (Sasol
North America, Inc. v. National Labor Relations Bd. (D.C. Cir. 2002) 275 F.3d 1106, 1111-
1112.) Therefore, an employer may discipline an employee for failure to report for work even
if the employee is absent due to union business, unless the parties have agreed that absences
for union business are exempt from the attendance policy.
We find no evidence that ATU and Omnitrans agreed to such a broad exemption from
MOU Article 27. Article 27 states that an absence will not be charged for "authorized union
business." However, nothing in the record indicates that Omnitrans waived its right to
discipline a coach operator when an unauthorized absence involves union business.
Accordingly, we conclude that Omnitrans has the contractual authority to charge an employee
with an absence pursuant to Article 27 when the employee fails to report for work on a day for
which union leave was denied. 15
This is consistent with Omnitrans' practice regarding other unauthorized absences
such as sick leave, which according to Moore's own testimony is charged as an absence under
Article 27.
14

Of course, Omnitrans' ability to exercise this contractual right is subject to the
existence of a lawful and legitimate reason for the denial of union business leave. The ALJ
found that no manpower shortage existed and therefore Moore's union business leave requests
could only have been denied because of his union activities. Omnitrans argues this finding is
erroneous because the record contains sufficient evidence of a manpower shortage between
January and May 2007 to establish the legitimacy of the denials. We agree that a
preponderance of the evidence supports Omnitrans' position.
Three Omnitrans witnesses testified about the agency's manpower shortage in early
2007. Dispatch Supervisor Huffman testified that between January and May 2007, Omnitrans
experienced an unusually high rate of both sick leave 16 and industrial injury leave among coach
operators. Huffman testified that he determines a manpower shortage based on the number of
routes to be run on a particular day, the driver days off and known leaves for that day, and the
number of drivers on the extra board for that day. He further testified that scheduling for the
next day is not an "exact science" because employees may call in sick before their shift and
other employees who were not expected to work may in fact report for duty.
If the dispatcher is unable to cover all routes with available drivers, a manpower
shortage exists and a loss of service, i.e. cancellation of all or part of bus routes, results. 17
According to Huffman, loss of service occurred regularly between January and May 2007. The
record contains dispatcher documentation for three days during this period, March 29 and
April 3 and 4, 2007, all of which show a loss of service.
From the documents in the record, it appears that several coach operators were on
FMLA leave during this period.
17 Huffman testified that loss of service may also result from non-personnel reasons
such as mechanical problems with a bus.
15

Transportation Manager Stanley testified that between January and May 2007, the
number of sick and industrial injury leaves among drivers, coupled with regular driver turnover
of 10 to 12 percent, resulted in a manpower shortage. Stanley admitted that Omnitrans was
recruiting new drivers at a lower level than usual during this time because of planned service
reductions that would begin in May 2007.
The record also contains a spreadsheet of Moore's absences that Stanley created from
dispatcher logs. 18 The spreadsheet shows that Omnitrans experienced a loss of service on
many of the days Moore was absent despite the denial of his union leave request. It also shows
that Omni trans incurred considerable hours of unscheduled overtime on those days.
Operations Director Graham testified that during February and March 2007, Omnitrans
was experiencing delays in service from the contractor that conducted background
investigations of coach operator applicants. Graham stated this caused a three to four week
delay in processing the applications. He also testified that following passage of the
background investigation, a driver would participate in six to seven weeks of training before
being assigned a route.
ATU produced scant evidence to support its position that no manpower shortage
existed. A TU witnesses stated their belief that no shortage existed but, when pressed for the
factual basis for their belief, admitted they did not have one other than Omnitrans' alleged
animus toward ATU.
A TU relies largely on evidence that Omnitrans granted coach operators leave to attend
four meetings of the Cultural Design Team (CDT) during April and May 2007 yet consistently
denied drivers' requests for union business leave during the same time. The CDT was a new
project by Omnitrans to improve employee morale that was facilitated by an outside contractor.
18 ATU did not contest the accuracy of the information in Stanley's spreadsheet. The
dispatch logs themselves were not entered into the record.
16

Employees from all Omnitrans departments, including coach operators, were selected to
participate. The ALJ found that Omnitrans lost a total
of
50 hours
of
driver time because
of
the CDT meetings. The only evidence in the record to support this finding is the dispatcher
documents from April 3, 2007, which show that three coach operators attended a three-hour
CDT meeting and that Omni trans suffered 44.19 hours
of
lost service that day. Huffman
testified that the three drivers who attended the CDT meeting missed, at most, two hours
of
their shifts. ATU presented no evidence to rebut this testimony. Therefore, we conclude that
the CDT meetings had only a minor impact on driver availability during April and May 2007
and do not belie Omnitrans' claim
of
a manpower shortage.
In rejecting this claim, the ALJ relied on the fact that Omnitrans never formally
declared a manpower shortage and that Huffman only discussed the shortage with Moore when
he rejected Moore's union business leave requests.
19
We find the lack
of
a formal declaration
to be
of
minimal significance. As Huffman testified, manpower varies from day to day
depending on a number
of
variables. Given this fluidity, it does not appear that manpower can
be predicted with sufficient accuracy to justify a formal declaration. Nor should the fact that a
dispatcher is unable to perfectly predict manpower for a particular day subject the agency to
liability when it denies leave for a day when manpower turns out to be higher than anticipated.
The ALJ also found "there is no evidence to show that Omnitrans could not have called
upon its extra-board drivers or requested its regular drivers to work overtime" to ease the
manpower shortage. Huffman testified that on days Omnitrans lost service in early 2007, he
had exhausted available extra board drivers and off duty regular drivers. ATU presented no
evidence to rebut this testimony, such as an extra board driver who was not called on a day
19
The formal declaration argument appears to arise from MOU Article 56, Part-Time
Provision/Part-Time Coach Operators, which states that part-time drivers may only work more
than 30 hours per week in cases of emergency. "Manpower shortage" is listed as an example
of such an emergency.
17

when Omnitrans lost service. Further, as noted above, drivers worked a substantial amount
of
unscheduled overtime during this period. Accordingly, we find that Omnitrans exhausted its
available personnel to minimize loss
of
transit service to the public between January and early
May 2007.
As a whole, the evidence establishes that Omnitrans was indeed suffering from a
manpower shortage from January until early May 2007. ATU nonetheless argues that, even
if
a manpower shortage existed, it was not a legitimate basis for denial
of
union business leave
because the shortage was self-inflicted. The evidence does not establish that Omnitrans
intentionally created the manpower shortage. Furthermore, whether or not Omnitrans could
have prevented the shortage, the fact is that such a shortage existed during the time when
Moore's requests for union business leave were denied. That Omnitrans may have failed to
adequately plan for this particular contingency does not amount to a waiver
of
its right to deny
union leave based on operational needs.
Because Omnitrans has proven that a manpower shortage existed in March, April and
early May 2007, we find that the denials
of
Moore's properly submitted union business leave
requests during those months were based on a legitimate operational need. Accordingly,
Omni trans properly charged Moore with absences for failing to report to work on
11
of
the
13
days for which union business leave had been denied for manpower reasons. 20
In sum, we find that Omnitrans properly charged Moore with 22 absences during the 12
month period ending May 3, 2007. While some of these absences occurred when the parties
were negotiating a successor MOU and some occurred after ATU rejected Omnitrans' LBFO,
ATU has failed to prove that the absences were charged in retaliation for Moore's participation
20
Because the record does not establish that Moore received the written denials of his
union business leave requests for March 5 and 19, 2007, before those dates, we cannot find that
the absences for those days were properly charged.
18

in these activities. Instead, Omnitrans has proven that it would have dismissed Moore based
on his unauthorized absences even if he had not engaged in protected activity. Accordingly,
we hold that Omni trans did not terminate Moore because of his ATU activities.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-358-M are
hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.
19