Five days after an arbitrator imposed TriMet’s contract proposal on 2,000 members of Amalgamated Transit Union (ATU) Local 757, an administrative law judge with the Oregon Employment Relations Board (ERB) issued an order that appears to contradict it.
Since 2007, state law has barred Oregon public transit workers from striking; instead, if contract bargaining reaches impasse, union and management present their final offers to an arbitrator, who picks one side’s offer in its entirety. After much delay, on July 13, 2012, arbitrator David Gaba picked TriMet’s offer, and ordered that its terms be retroactive to Dec. 1, 2009 — when the previous contract expired.
Under TriMet’s contract proposal, it continues to pay the full premiums for Kaiser Permanente and Regence BlueCross BlueShield health plans, but it reduces the benefit level of the Regence plan, which 58 percent of TriMet’s union workers are enrolled in. Under the previous contract, the Regence plan paid virtually all health expenses; under the new contract, it has what’s known as a 90/10 benefit level: Employees pay 10 percent of health care expenses — after a deductible of $150 per individual (or $450 per family) — up to an out-of-pocket maximum of $1,500 a year per individual (or $4,500 per family).
But a reduced benefit level is pretty tricky to implement retroactively, because it changes payment terms for benefits that were already used. It makes matters still more complicated that TriMet continued the old Regence benefit level for 13 months after the old contract expired — and paid an increased premium for 12 of those months. Then as of Jan. 1, 2011 it made workers who wanted to continue with Regence choose: keep the old generous benefits and pay the premium increase, or accept the new 90/10 benefit structure. So to impose TriMet’s offer retroactively requires some complex accounting. Workers who chose to keep the old benefit structure get a refund of the premiums they paid, but if they used any of the health insurance benefits, they have to pay the deductible and 10 percent coinsurance that they would have paid if the 90/10 structure had been in place.
However, all this appears to be contradicted by the ruling issued July 18 by ERB judge Wendy Greenwald.
Historically, after a contract expired, TriMet would give cost-of-living raises and continue the same health insurance benefits — to speed resolution of a new contract while the parties continued to negotiate. TriMet did that this time too, for the first year. But about a year after the December 2009 contract expiration, it halted further raises and implemented the reduced Regence benefits. And indeed, TriMet could legally have done those two things, Greenwald said in the July 18 ruling. But Greenwald found that in this case, TriMet did those things in retaliation for the union having filed unfair labor practice charges with ERB in 2011 — after TriMet submitted a different “final offer” to the arbitrator than it had presented to the union in actual bargaining sessions. ATU argued that was illegal, and ERB agreed; TriMet had to resubmit its offer.
Having ruled that TriMet was acting in a retaliatory manner when it canceled the raises and implemented the reduced benefits, Greenwald ordered the reversal of those measures as a remedy: TriMet must pay retroactive cost-of-living raises totaling about $6 million, or about $3,000 per employee, depending on wages and hours worked.
Greenwald also ordered that the old benefit structure be maintained up through the arbitrator’s order. Thus, under her order, any workers who paid premiums will have those refunded, and any who paid the deductible and 10 percent insurance will have that refunded.
ATU Local 757 President Bruce Hansen called the judge’s decision a vindication.
“This decision may result in a complete gutting of the recent interest arbitration decision because the arbitrator awarded the very proposal that was ruled illegal today.”
No doubt union and employer will be sorting out the two verdicts for months to come.
TriMet expects to pay the cost-of-living raises on or before Aug. 24.