In re a Controversy Between Clackamas Cnty. Emps.' Ass'n & Clackamas Cnty.

Decision Date03 May 2021
PartiesIn the matter of a controversy between CLACKAMAS COUNTY EMPLOYEES' ASSOCIATION, Union, and CLACKAMAS COUNTY, Employer, Re: Termination of [Redacted]
CourtOregon Employee Relations Board
IN ARBITRATION PROCEEDINGS PURSUANT TO AGREEMENT OF THE PARTIES
OPINION AND AWARD

This grievance was submitted to Catherine Harris, Esq., a neutral arbitrator mutually selected by the parties to render a final and binding award.1

Kevin Keaney, Esq. appeared on behalf of CLACKAMAS COUNTY EMPLOYEES' ASSOCIATION (herein "the Association"), the collective bargaining representative of [Redacted] (herein "the Grievant"). The Grievant was present throughout the hearing.

CLACKAMAS COUNTY (herein "the County") was represented by Assistant County Counsel Andrew Narus. Also present on behalf of the County was Sam Crane, Legal Office Supervisor, Family Support Unit, Clackamas County District Attorney's Office.

By agreement of the parties, the hearing was conducted on November 16 and 17, 2020 and on January 4, 2021 via the Zoom videoconferencing platform.2 At the hearing, each partywas given the opportunity to present testimonial3 and documentary4 evidence, to cross-examine the other party's witnesses, and to make argument to the arbitrator. Upon receipt of both parties' post-hearing briefs in the arbitrator's office,5 the record was closed on March 17, 2021 and the matter was taken under submission.

ISSUES IN DISPUTE

The parties agree that the instant grievance is properly before the arbitrator for final and binding resolution of the following jointly submitted issues:

Issue number one: whether the termination of the Grievant was in good faith and for just cause; and
Issue number two, if not, what shall be the appropriate remedy?

The parties also jointly requested that, in the event a remedy were to be ordered, the arbitrator retain jurisdiction over any dispute regarding implementation of her award.

RELEVANT PROVISIONS OF THE AGREEMENT

The parties agree that the relevant agreement for purposes of resolving this dispute is the 2018-2021 collective bargaining agreement between the County and the Union (herein "the CBA") which contains the following provisions:

ARTICLE 13 - DISCIPLINE AND DISCHARGE

Regular employees may, in good faith for just cause, be subject to disciplinary action by oral reprimand, written reprimand, unpaid suspension, demotion or discharge. Such action shalltake effect only after the supervisor gives prior written notice of the action and cause to the regular employee, except in the case of oral or written reprimand. Oral or written reprimands may be given at the initial meeting with the employee regarding discipline, if the County has already determined such discipline is warranted after the investigation.

An employee has the right to have union representation at any investigatory interview of the employee which the employee reasonably believes could lead to disciplinary action against the employee. The role of the union representative shall be limited to those outlined by the Employment Relations Board in Washington County Peace Officers Association vs. Washington County, which are:

1) Inquire about the purpose and subject of the meeting;
2) Asking clarifying questions;
3) Ask clarifying questions at the end of the interview; and
4) Suggest any other witnesses; describe other practices or mitigating factors.

Performance improvement plans, work plans, or other similar performance management tools are not discipline. An employee does not have the right to have a union representative present during meetings regarding a performance improvement plan, work plan, or other similar performance management related tool. Performance improvement plans shall not be kept in the employee's personnel file.

Any regular employee who is disciplined (except for oral reprimands) will receive a written statement of the charges and allegations that the County will rely on to support the decision to discipline. The Association shall be notified that the regular employee has been disciplined and sent a copy of the charge at the time the regular employee is notified unless the regular employee objects. Notification to the Association shall include sending copies of all such notices to the Association President and Service Representative.

Any regular employee in the bargaining unit who is disciplined in writing, demoted, suspended, or discharged shall have the right to appeal the action through the Grievance Procedure. Oral reprimands are not subject to grievance. The Association shall submit such grievance at Step 1 of the procedure no later than ten (10) working days after the effective date of the disciplinary action. Working days for the grievance procedure shall be defined as Monday through Thursday, excluding holidays recognized and observed by the County. The Grievance Procedure shall be the sole and exclusive procedure for resolution of discipline and discharge disputes. The Association requests the County inform employees who are subject to discipline or discharge of their contract rights to the grievance procedure.

If the County has reason to counsel, reprimand or discuss a regular employee's need to correct deficiencies, every reasonable effort will be made to accomplish this in a manner that will not embarrass the regular employee before other employees or the public.

When the employer believes there is just cause for discharge, the regular employee and the Association will be notified in writing at the time the action is taken that the regular employee is subject to discharge. In instances of proposed discharge, the employee should be given ten (10) calendar days advanced (sic) notice of the discharge date as required by County Code. Such notification shall state the reasons for which the regular employee is being discharged. The employer shall provide the regular employee with an opportunity to respond to the charges at an informal pre-dismissal hearing which may be recorded, with the person or persons having the authority to impose or revoke the disciplinary action.

The regular employee may be granted additional time, at the discretion of the employer, to prepare for the pre-dismissal hearing.

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ARTICLE 14 - SETTLEMENT OF DISPUTES

1. Association Grievance and Arbitration Procedure.

Any grievance or dispute which may arise between the parties involving the application, meaning or interpretation of this Agreement, except oral reprimands, shall be settled in the following manner:

STEP 1. An Association representative, with or without the employee, may take up the grievance or dispute with the employee's department head or designee within ten (10) working days of its occurrence. The department head or designee, an Association representative, and the employee, shall meet within 7 (seven) working days of the appeal to Step 1 to discuss the grievance. If the grievance remains unresolved, the department head or designee shall respond to the representative within ten (10) working days of such meeting.

STEP 2. If the grievance still remains unadjusted, it may be presented by the Association representative, or the Association grievance committee, to the Board of County Commissioners, or its designee(s) within seven (7) working days after the response of the department head is due. The Board of County Commissioners or its designee(s), an Association representative, and the employee, shall meet within 7 (seven) working days of the appeal to Step 2 to discuss the grievance. If the grievance remains unresolved, the Board of County Commissioners or its designee shall respond in writing to the representative or grievance committee within ten (10) working days.

STEP 3. If the grievance is still unsettled, either party may within thirty (30) calendar days after the reply of the Board of County Commissioners is due, by written notice to the other, request arbitration, except when the issue at hand is in conflict with the County's Personnel Ordinance, in which case the bargaining agreement shall prevail.

STEP 4. Arbitration. If arbitration is requested, the parties shall forthwith agree upon an arbitrator who shall act as sole arbitrator of the dispute. The parties agree that any decision of the arbitrator which is within the scope of this Agreement shall be final and binding upon them. In the event that the parties fail to agree upon the selection of an arbitrator, a list of seven (7) arbitrators who charge from the Oregon border or only for travel within Oregon, which includes Oregon arbitrators as well as arbitrators who are not Oregon residents and charge from the Oregon border shall be requested from the Employment Relations Board of the State of Oregon. After the flip of a coin has determined which party shall strike first, each party shall, in turn, strike one arbitrator at a time from the list until one name remains. The arbitrator whose name remains shall act as the arbitrator of the dispute. .The arbitrator shall not have the authority to modify, add to, alter or detract from the provisions of this Agreement. The arbitrator shall exercise all powers relating to admissibility of evidence, conduct of the hearing and arbitration procedures, provided that in so doing, the arbitrator shall not contravene any provisions of this Agreement. The compensation of the arbitrator and all expenses incurred by the arbitrator shall be borne by the party against whom the arbitrator's decision is adverse.

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STATEMENT OF THE CASE
Background of the Dispute

This case involves the termination of a long-term employee of the District Attorney's Office who formerly served as a Child Support Enforcement Agent I (herein "Agent") in the Family Support Unit. The Grievant served continuously in the capacity of an Agent fromAugust of 19996 until her termination on November 27, 2019. Prior to June of 2019, the Grievant had no history of prior discipline.7

At the time of these events, the Family Support Unit was managing a total of approximately 8000 cases...

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