In re Arbitration Between Treasure Valley Educ. Ass'n & Treasure Valley Cmty. Coll.

CourtOregon Employee Relations Board
PartiesIn the Matter of the Arbitration between TREASURE VALLEY EDUCATION ASSOCIATION and OREGON EDUCATION ASSOCIATION, Association, and TREASURE VALLEY COMMUNITY COLLEGE, Employer.
Decision Date14 June 2021
BEFORE ARBITRATOR ROSS RUNKEL

H___ termination grievances

ARBITRATOR'S OPINION AND AWARD

HEARING:

April 12 and 13, 2021

Remote hearing via Zoom

HEARING CLOSED:

May 21, 2021

REPRESENTING THE EMPLOYER:

Nancy J. Hungerford

The Hungerford Law Firm LLP

PO Box 3010

Oregon City, OR 97045

REPRESENTING THE ASSOCIATION:

Caleb Mammen

McKanna Bishop Joffe, LLP

1635 NW Johnson St.

Portland, OR 97209

ARBITRATOR:

Ross Runkel

Post Office Box 8473

Portland, OR 97207

RossRunkel@gmail.com

INTRODUCTION

This matter came before me as arbitrator selected by the Parties to resolve a dispute arising under their collective bargaining agreement. A hearing was held remotely using the Zoom platform on April 12 and 13, 2021. Each Party presented witnesses, testimony, and arguments. The Parties submitted post-hearing briefs, and the record was closed when the post-hearing briefs were received on May 21, 2021.

Vice President for Academic Affairs A___, B___, Director of Legal and Human Resources C___, Dean of Career & Technical Education D___, Rodeo Coach E___, and President F___ testified on behalf of the Employer. Association Vice President G___, Grievant H___, and Consultant I___ testified on behalf of the Association.

OPINION AND AWARD
1. ISSUE

The Parties stipulated to the following issues:

(1) Did the College have just cause to terminate H___?
(2) If not, what is the appropriate remedy?
2. SUMMARY OF FACTS
A. Introduction.

This case arises because the College terminated H___'s employment on August 13, 2020 on charges of theft and insubordination, and continued the termination on February 4, 2021 on additional charges of theft and insubordination.

Treasure Valley Community College has its main campus in Ontario, Oregon, and has a faculty of about 30. The Treasure Valley Education Associationrepresents the faculty. H___ had been an Agriculture Instructor for approximately nine years prior to his termination. He began as an adjunct in 2011 and became full-time in 2012 or 2013. He was a tenured faculty member at the time of his termination.

B. Welder.

The College owns a Miller Bobcat 225 welding machine which it bought using Perkins Grant funds. In the Spring of 2018 the College moved the welder to the Malheur County Fairgrounds, onto a parcel that the College leases from the Fairgrounds.

On March 31, 2020 H___ and ___ D___ exchanged a series of four emails.

The first email was from H___ to D___:

Subject: Welding skills
___-
As part of my professional development this spring I would like to update/upgrade my welding skills and possibly test for more certifications. This would allow me to be prepared to put Ag Metals and Welding back on the schedule once we have the new building done. Additionally, it would help me qualify to teach additional welding classes.
With that being said, would it be ok with you if I used one of the portable welders the Ag department bought a couple of years ago through Perkins to practice with?
Thanks,
___

D___ replied:

Hi ___,
I am not opposed to you practicing your welding skills.
But, I don't know where you would do this on campus, this term.
I don't remember this in your professional development plan for the year.
Do you need to update your plan?
Thanks

H___ then said:

___-
It wasn't in my professional development originally, but I also didn't know this quarter was going to look like this either. I should have the time this quarter. In addition I want the opportunity to teach some of these classes as the move back to campus.
As far as the welding itself goes, I have a spot off campus I can weld.
___

In the final email, D___ said:

___-
I understand why it would not be in your PD plan, I am asking to have it updated, so the PD you that you do during any year is documented.
I think it is a good idea to expand your teaching opportunities; I told Justin the same thing.
I want to let you know, though, we are planning to hire a FT Welding Faculty, who would likely teach all or most of the Welding courses.
That stated, I can't let welders leave campus.
I also cannot let Perkins equipment leave campus.
I will hopefully have welding adjuncts back (for certifications), and hopefully facilities for you to use, in Summer and Fall.

Sometime during April 2020 H___ removed the welder from the Fairgrounds and took it to his property near Cascade, Idaho. On May 4 or 5 E___ became aware that the welder was missing from the Fairgrounds, and he called Physical Plant Director J___. J___ notified D___ and the police. The police contacted E___ to get names of people who might have information, and one of those wasH___. An officer phoned H___ on May 18, and he said he had the welder. In another call, the officer asked H___ to return the welder, and H___ returned the welder on May 20.

The Parties have starkly different versions of the facts on the question of whether H___ had permission to take the welder. H___ testified that he phoned D___ after the March 31 emails and that H___ understood from that call that he could take the welder. D___ testified that he had no phone conversation at all with H___ between March 31 and the return of the welder.

Another disagreement about the facts has to do with whether - prior to H___ moving the welder - H___ and D___ discussed building a trailer for the welder. Beginning with a May 19 email from H___ to D___, H___ has consistently stated that the reason he moved the welder to his property near Cascade was because he wanted to build a trailer for it. He testified that he told D___ about his interest in building a trailer during a February 27, 2020 phone conversation. D___ testified that neither the welder nor building a trailer came up during the February 27 phone call, and that he had heard nothing about a trailer until after H___ returned the welder.

On May 19 A___ had an informal meeting with H___, and A___ concluded that the matter could not be resolved by using the informal process. A___ asked C___ to conduct an investigation. As part of that investigation C___ met with H___ on or about June 16, and on July 9 H___ submitted a written statement. After C___ issued her final report, H___ emailed a response to her on July 23. On August 3 A___ recommended that H___'s employment be terminated. On August 6 C___ gave H___ a Notice of Intent Termination of Employment. H___ emailed a response on August 11. On August 13 C___ notified H___ that his employment was terminated.

The Association filed a grievance on August 21, 2020, and A___ upheld the termination on September 16. The matter was then reviewed by F___ and she upheld the termination on October 22, 2020. This arbitration followed in order to resolve this dispute.

C. Road To The Horse (RTTH).

Road to the Horse (RTTH) is an annual equestrian event which had been scheduled for March 2020 in Lexington, Kentucky. H___ had planned to attend this event, to staff the College's merchandise booth. On March 4, 2020 the College issued a $500 check to H___ to be used for change at the merchandising booth. Due to COVID-19, the event was first postponed and then cancelled. On May 13 D___ emailed H___ indicating a need to recover the $500. That email was the beginning of several emails back and forth between D___ and H___, and between A___ and H___. On August 10 H___ delivered his personal check for $500 to C___.

On February 4, 2021 - following an informal meeting between H___ and A___, an investigation by C___, and a formal meeting between H___ and A___ - the College decided to continue H___'s termination.

The Association filed a grievance on February 26, 2021, and F___ upheld the termination on March 22. This arbitration followed in order to resolve this dispute.

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3. COLLECTIVE BARGAINING AGREEMENT

ARTICLE 8: EMPLOYMENT STATUS

* * *
E. Tenured Status
* * *
3. No tenured faculty member shall be disciplined, suspended, reduced in compensation, or dismissed without just cause and due process as outlined in this agreement.
F. Just Cause
Discipline or dismissal of a member must be for just cause.
* * *
I. Formal Complaint Procedure for Discipline or Dismissal
* * *
5. Any determination that a member should be subject to discipline or dismissal must be made in a reasonable manner and after obtaining substantial evidence of proof.
4. DISCUSSION - WELDER
A. Introduction

The burden of proof in a termination case is on the employer. The collective bargaining agreement requires the College to obtain "substantial evidence of proof." The College has terminated H___ on charges of theft and insubordination. For charges of theft it is traditional for an arbitrator to require that the proof be clear and convincing because of the stigma attached to a finding that an employee has committed a criminal act. This is more than a preponderance of the evidence (that is, evidence that indicates that a fact is more likely true than not true), yet less thanbeyond a reasonable doubt. For insubordination, the appropriate burden is a preponderance of the evidence.

Although "just cause" is not defined in the collective bargaining agreement, there are three primary ingredients: (1) Whether the employer has proved the alleged wrongdoing; (2) whether the employer provided the fundamentals of due process, including conducting a fair investigation; and (3) whether the level of discipline imposed was proportionate to the seriousness of the wrongdoing.

A termination decision must be examined from the standpoint of the evidence that was available and relied upon at the time the termination decision was made, and not on evidence that came to light at a later time. Therefore, some of the evidence offered by the College must be excluded because it did not exist at the time the termination decision was made on August 13, 2020. The excluded...

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