EMPLOYMENT RELATIONS BOARD

OF THE

STATE OF OREGON

Case No. UP-012-18

(UNFAIR LABOR PRACTICE)

TREASURE VALLEY EDUCATION ) ASSOCIATION, ) ) Complainant, ) RULINGS, ) FINDINGS OF FACT, v. ) CONCLUSIONS OF LAW, ) AND ORDER TREASURE VALLEY COMMUNITY ) COLLEGE, ) ) Respondent. )

On April 23, 2019, this Board heard oral argument on Complainant’s objections to a recommended order issued by Administrative Law Judge (ALJ) Julie D. Reading on February 14, 2019. The ALJ conducted a consolidated hearing in this case and Case No. UP-006-18 on September 25 and 26, 2018, in Ontario, Oregon. The records in both cases closed on November 19, 2018, following receipt of the parties’ post-hearing briefs.1

Noah S. Warman, Attorney at Law, McKanna Bishop Joffe, LLP, Portland, Oregon, represented Complainant.

Nancy Hungerford, Attorney at Law, The Hungerford Law Firm, Oregon City, Oregon, represented Respondent.

______

On April 30, 2018, the Treasure Valley Education Association (Association) filed a complaint alleging that Treasure Valley Community College (College or TVCC) violated ORS 243.672(1)(a) and (1)(c). Specifically, the Association alleged that the College retrenched

1We concurrently issue a separate final order in Case No. UP-006-18.

1 three employees in retaliation for engaging in protected activity during a contentious bargaining period. The College filed a timely answer, denying the allegations.2

The issues, as proposed by the ALJ and agreed to by the parties, are:

1. Did the College retrench three employees due to those employees’ engagement in protected union activities? If so, did the College violate ORS 243.672(1)(a) by interfering with, restraining, or coercing employees in or because of the exercise of protected rights?

2. Did the College retrench three employees due to those employees’ engagement in protected union activities? If so, did the College violate ORS 243.672(1)(c) by discriminating with regard to hiring, tenure, or terms of employment for the purpose of encouraging or discouraging membership in an employee organization?

We conclude that the College did not violate ORS 243.672(1)(a) or ORS 243.672(1)(c).

RULINGS

The rulings of the ALJ were reviewed and are correct.

FINDINGS OF FACT

The Parties

1. The College is a public employer within the meaning of ORS 243.650(20). It is a community college serving approximately 3,000 students in Ontario, Oregon. It also has a satellite campus in Caldwell, Idaho.

2. The Association is a labor organization within the meaning of ORS 243.650(13). It is the exclusive representative of College faculty members and librarians who work at least 55 percent of a regular full-time academic year. The Association does not represent adjunct faculty.

3. The College is governed by a publicly elected Board of Education (Education Board). The Education Board appoints a President as the head administrator of the College. The President hires college administrative personnel, including the Vice President of Academic Affairs (VPAA).

4. The College has two primary tracks for students: (1) Career Technical Education (CTE), which includes programs that are intended to prepare students for a career upon completion, such as agriculture, nursing, and natural resources; and (2) Transfer, which prepares students to transfer to four-year institutions.

5. The Association and the College have been parties to a succession of collective bargaining agreements going back decades.

2Although each party included a request for reimbursement of its filing fee in its respective pleading, neither party has pursued its request.

2 6. The parties were subject to a collective bargaining agreement that was in effect from July 1, 2012 through June 30, 2017 (Agreement).

7. The parties began bargaining for a successor agreement in February 2017. When the 2012-2017 Agreement expired on June 30, 2017, the parties were still engaged in successor bargaining. The parties reached a tentative agreement on or about March 9, 2018. The Association ratified the successor agreement on March 19, 2018, and the College ratified the agreement on March 20, 2018.3

Agreement Terms regarding Faculty Employment Status and Retrenchment

8. As described in Article 8 of the Agreement, new bargaining unit faculty must serve a “provisional period,” which is typically three or four years. Each provisional faculty member has a one-year contract, which the College may “non-renew[] for any reason judged in good faith sufficient by the College.” “Upon successful completion of the provisional period, the member shall attain tenured status.”

9. A tenured faculty member’s employment may be terminated for just cause or through retrenchment, as provided for in Article 9.4 Retrenchment is a type of layoff that applies to tenured bargaining unit employees. Article 9 of the Agreement requires the College to retrench faculty in order of inverse seniority within their departments. Under Article 9, a retrenched faculty member has the right to be recalled to a vacant bargaining unit position, and also has the right to teach available courses as a part-time (i.e., adjunct, non-bargaining unit) employee without forfeiting their recall rights.

10. Article 9, Paragraph B, of the Agreement sets forth the retrenchment implementation process. Subparagraph 1 provides:

“When the College considers that retrenchment may be necessary, the College shall notify the Association officers and the affected faculty member(s) in writing or email by February 8. The Association shall be asked to discuss the situation and possible alternatives. This meeting shall be on or before February 15.”

11. Article 9 also includes provisions governing the computation of seniority. Article 9, Paragraph C, Subparagraph 1, provides, “Every member of the Association shall be assigned to at least one (1) department, and every member shall be assigned a seniority rank within his/her department.” Other provisions of Article 9, Paragraph C, establish how seniority shall be

3The record indicates that the parties agreed to some changes to the Agreement during the 2017-2018 successor bargaining. However, the details of those changes are not specified in the record or material to our decision. Accordingly, we refer to the terms of the 2012-2017 Agreement to provide the relevant factual background.

4As described in more detail below, the College initiated the retrenchments at issue in this case after the 2012-2017 Agreement expired and while the parties were engaged in successor negotiations. The parties agree that the retrenchment provisions in Article 9 of the 2012-2017 Agreement remained in force as the status quo during that time period.

3 calculated under various circumstances. Article 9, Paragraph C, Subparagraph 5, sets forth the following requirements for calculating seniority for employees who work in more than one department:

“Association members who have assignments in more than one (1) department shall be listed, for seniority purposes, under the department that represents their predominate assignment.

“i. The predominate seniority assignment shall be derived from an examination of the three (3) most recent academic quarters.

“ii. In cases where a faculty member has a substantial and ongoing assignment split between two (2) departments, the faculty member shall be listed in both departments (i.e., substantial is defined as at least one-third [1/3] of an annual load).”

12. Consistent with the Agreement’s retrenchment provisions, the College has annually compiled a seniority rankings matrix that identifies each current full-time faculty member’s “predominate department” and seniority ranking within their respective department.

13. Article 9 of the Agreement also provides a process for resolving a dispute regarding the College’s seniority matrix:

“Any disputes involving seniority shall be resolved by the standing Discipline Committee. The Discipline Committee shall be authorized to resolve all disputes regarding the placement of Association members on the seniority rankings matrix that is appended to this article. The decisions of the Discipline Committee on placement rankings are final and are not subject to the grievance procedure set out in Article 6 or review by any administrative agency.”

14. The College is divided into academic departments. For most purposes, these departments are: (1) English and Humanities, (2) Agricultural and Natural Resources, (3) Fine and Performing Arts, (4) Math, (5) Science, (6) Social Sciences, (7) Library, (8) Nursing and Health, and (9) Business and Computer Sciences.

15. For the purposes of the parties’ negotiated retrenchment matrix, the departments are divided into more categories. Specifically, the retrenchment matrix lists the following departments: (1) Agriculture, (2) Business, (3) Computers, (4) Education, (5) English and Communications, (6) Equine Science, (7) Fine and Performing Arts, (8) Foreign Language, (9) Health and Physical Education, (10) Industrial Manufacturing and Controls (IMAC), (11) Library, (12) Math, (13) Natural Resources and Wildfire Management, (14) Nursing, (15) Science, (16) Social Sciences, and (17) Welding.

16. The College prepared the retrenchment matrix for the 2017-2018 academic year, which the Association did not dispute. According to that matrix, the number of faculty members and least senior faculty member in each department were as follows:

4 (1) Agriculture – two faculty members: Jared Higby (Tenured) (2) Business – three faculty members: Nila Stephens (Provisional) (3) Computers – one faculty member: Dustin Mason (Tenured) (4) Education – one faculty member, Suzanne Bolyard (Tenured) (5) English/Communications – four faculty members: Melissa Vargas (Tenured) (6) Equine Science – one faculty member: Wade Black (Tenured) (7) Fine and Performing Arts – two faculty members: Ted Fink (Tenured) (8) Foreign Language – one faculty member: Claire Holderman (Tenured) (9) Health and Physical Education – one faculty member: Tanya Crawford (Tenured) (10) IMAC – one faculty member: Justin Blazzard (Provisional) (11) Library – one faculty member: Christina Trunnell (Tenured) (12) Math – seven faculty members: Dominique Banner (Provisional) (13) Natural Resources and Wildfire Management – one faculty member: Marcus Nichols (Tenured) (15) Nursing – five faculty members: Hilary Heller (Provisional) (16) Science – six faculty members: Samuel Castonguay (Provisional) (17) Social Sciences – three faculty members: Jessica Breidinger (Tenured) (18) Welding – one faculty member: Kevin Campbell (Tenured)

Faculty Workload and Compensation

17. The VPAA determines which courses will be offered and the course schedule. In each department, the regular (tenured and provisional) faculty select which courses they would like to teach, in order of seniority. Any courses not selected by a regular faculty member are assigned to adjunct faculty.

18. Under Article 17 of the Agreement, a full course load (referred to colloquially as a “full load”) for a regular faculty member is defined as 45 credit hours per regular academic year (or an average of 15 credits per quarter).

19. Under Article 18 of the Agreement, bargaining unit faculty members’ salaries are determined by a 15-step schedule. Initial placement on the salary schedule is based on education level and work experience. The base salaries on the schedule assume that a faculty member is teaching a full load. Faculty receive an additional $1,050 per credit for teaching summer courses. Per Article 17, faculty members who teach more than 15 credits in a quarter are considered to have an “overload” and receive additional compensation at the rate of $720-$770 (increasing annually). A faculty member serving as a department chair also receives additional compensation, typically an amount equal to four additional credits.

20. Article 17, Paragraph E, provides for minimum and maximum class sizes. The parties use the term “make” to describe a course that meets its minimum enrollment requirement. Generally, a course must have at least 13 students enrolled to make and be paid at the full rate. There are several exceptions to the 13-student minimum enrollment standard, including for courses that are required for a specific program and College-approved first-time offerings. The maximum enrollment size for most courses is 30 students.

5 College Budget

21. In recent years, the College’s enrollment has declined significantly due to a variety of factors, including the improving economy and the opening of a competing community college nearby in Idaho.

22. The College’s funding sources are tuition, fees, and state funding referred to as “full-time equivalents” (FTEs). The amount of FTEs paid by the state is based on the number of enrolled Oregon students. The College receives only tuition, not state FTE funding, for courses that are taught in classrooms physically located in Idaho.

23. In the past few years, with declining enrollment, the College has had to borrow money at the beginning of each school year until it receives its state funding. In the most recent school year, the College was not able to borrow the full amount that it requested because the lender determined that the credit risk was too great.

24. During the spring of 2017, when the parties were engaged in successor bargaining, the College was anticipating a half a million-dollar budget shortfall for the 2017-2018 school year.

Association Grievance regarding VPAA Appointment

25. During the spring of 2015, College President Dana Young appointed Edward Alves as an interim VPAA without consulting the faculty. The VPAA acts as the supervisor of the faculty.

26. The Association filed a grievance challenging the appointment, asserting that the selection process violated provisions of the Agreement that require faculty consultation.

27. While the grievance process was progressing, Alves became a permanent VPAA. On July 25, 2017, an arbitrator dismissed the grievance, determining that the Association had not timely filed it.

2017-2018 Successor Bargaining and Faculty Retrenchment

28. As noted above, the parties’ 2012-2017 Agreement was scheduled to expire on June 30, 2017, and they started successor bargaining in February 2017. The bargaining became relatively contentious. In total, the bargaining comprised hundreds of hours over the course of many days. The College sought to reduce benefits and pay for bargaining unit members, asserting that its financial situation placed it in a precarious position.

29. Participants on the Association’s bargaining team included Dennis Gill, Ted Fink, Kirby Winters, Jessica Breidinger, Kevin Campbell, and Brett Nair. Participants on the College’s bargaining team included Ann Marie Kelso, Nancy Hungerford, Kevin Kimball, and the former Director of the Caldwell Center. Alves initially did not participate, but as the bargaining continued, he became more involved.

6 30. A number of faculty members who were not on the bargaining team observed the bargaining sessions. Additionally, a number of bargaining unit members who were not on the bargaining team engaged in activism to support the Association’s positions in bargaining and to encourage the College to continue bargaining.

31. Some Association members formed a “Contract Action Team.” The Contract Action Team participants sought to provide information about the bargaining process to Association members and the community at large. Members of this group distributed signs to display in community business fronts and on residential laws. They also organized demonstrations that were held just outside of the buildings where bargaining was occurring.

32. The Education Board met in December 2017 to determine whether the College should declare impasse. Many faculty members attended the meeting, including Christina Trunnell, Becky Replogle, Suzanne Bolyard, Claire Holderman, Kevin Campbell, Melissa Vargas, Dustin Mason, Phil Mahaffey, Ted Fink, Sandy Porter, and Carol Proctor. At that meeting, the Education Board voted to declare impasse.

33. The College submitted its last best offer and cost summary on January 5, 2018. The cost summary submitted by the College showed its current costs and indicated that with its last best offer, it would save $751,832 in Year 1; $873,963 in Year 2; $978,445 in Year 3, and $2,604,240 in Year 4.

34. The Education Board met on January 16, 2018. Several faculty members also attended this meeting, including Greg Borman, Becky Replogle, Suzanne Bolyard, Claire Holderman, Melissa Vargas, Dustin Mason, Phil Mahaffey, Ted Fink, Sandy Porter, Mark Wilson, and Carol Proctor.

35. On February 5, 2018, the College and Association bargaining teams met for mediation. During that session, a number of faculty members protested outside the building where the session was held. These faculty members included Claire Holderman, Dustin Mason, Melissa Vargas, Christina Trunnel, Suzanne Bolyard, Darin Bell, Phil Mahaffey, and Mark Wilson.

36. In or about January 2018, the College determined that non-renewal and retrenchment of some faculty members may be necessary for financial reasons.5 Alves was primarily responsible for identifying which faculty members the College should consider non-renewing or retrenching, in consultation with President Young and Chief Financial Officer Kevin Kimball. Ultimately, Alves made recommendations regarding non-renewal and retrenchment to Young, and Young made the same recommendations to the Education Board.

37. Young testified that she directed Alves to include in the recommended retrenchment list one faculty member from English, Math, and Science. Young and Alves testified that cutting one faculty member from each of those larger departments would have minimal or less impact on students and programs, primarily because enough faculty would remain in those departments to teach the necessary courses. Additionally, decreased enrollment reduced the

5The College has retrenched or non-renewed regular faculty members to respond to financial and enrollment issues in the past, including in 2001, 2002, 2012, 2013, and 2017.

7 number of core courses that needed to be offered in those departments, which in turn reduced the number of regular faculty members needed.

38. For the remaining cuts, Young testified that she directed Alves to identify other programs with lower enrollment or similar issues to consider. Alves testified that when deciding which faculty members to recommend for non-renewal or retrenchment, he sought to identify the cuts that would have the least impact on students and programs.

39. At that time, the least senior members of the English, Math, and Science departments were, respectively, Melissa Vargas, Dominique Banner, and Samuel Castonguay. Vargas was tenured; Banner and Castonguay were provisional. The Agreement permits the College to terminate provisional faculty members’ employment through non-renewal pursuant to Article 8 (instead of retrenchment pursuant to Article 9). In or about March 2018, the College non-renewed Banner and Castonguay.

40. Alves recommended retrenchment of six faculty members from six different departments: (1) Computers, Dustin Mason; (2) English/Communications, Melissa Vargas; (3) Fine & Performing Arts (Music), Rebecca Replogle; (4) Foreign Language, Claire Holderman; (5) Math, Greg Borman; and (6) Welding, Kevin Campbell.

41. On February 7, 2018, the College sent a notice to the Association stating that it would be retrenching six faculty members “because of a substantial program/departmental/college enrollment loss, lack of financial resources and/or departmental modification or consolidation.” The notice provided a meeting time for the parties to discuss the retrenchment as required by Article 9 of the Agreement, and it identified the six faculty members whom Alves had recommended for retrenchment.

42. On that same date, the College sent an individual retrenchment notice to each of the faculty members identified in the notice sent to the Association.

43. Alves recommended Campbell for retrenchment due to declining enrollment in the welding program and because the College intended to demolish the building where its courses were currently being held. After the retrenchment notice, Campbell resigned.

44. Alves recommended Borman for retrenchment because he had been teaching math at the Caldwell campus, where enrollment was low and courses were not eligible for state FTE funding. Additionally, retrenchment of Borman would permit him to bump into a position in Ontario then filled by the Math department’s least senior faculty member (Banner), whose provisional contract was non-renewed. Subsequently, starting in the 2018-2019 academic year, Borman has been able to teach classes that are also broadcast digitally in Caldwell. Additionally, because Borman’s physical location has been relocated to Ontario, his classes have become eligible for some amount of Oregon FTE funding that was not available when he physically taught in Idaho.

8 45. Alves recommended Replogle for retrenchment because of insufficient enrollment in music courses. The College had considered retrenching Replogle the previous year, but gave her an additional year to increase enrollment.6

46. At the time that Mason received his retrenchment notice, he was serving as the department chair for Business and Computer Sciences. However, the 2017-2018 retrenchment matrix lists Mason as the sole faculty member in the Computers department.

47. As department chair of Business and Computer Sciences, Mason had discussed his concern about the process used to select Alves for the VPAA position with President Young. Mason had an adversarial relationship with Alves. Mason and Alves often had conflicting views regarding interpretations of the Agreement.

48. Mason was also an active member of the Contract Action Team. He wore pins in support of the Association, attended Education Board meetings, attended demonstrations, and advocated for the Association’s bargaining interests in the community at large.

49. Mason was continually teaching an overload of courses. He frequently taught a basic business and computer science course required for all degrees. That course is alternatively designated as BA131 and CS120. Because that is a very basic computer class, it can be taught by any faculty member in the Business department.7 Mason was the only regular faculty member qualified to teach higher level computer science courses, i.e., the 18 courses required for a computer science degree. Five of those courses were taught by Mason, and 13 were taught by adjunct faculty. For some years, the higher level computer science courses’ enrollment levels had been lower than the College expected.

50. Alves testified that he recommended retrenching Mason because the BA131/CS120 course could be taught by other faculty members in the Business department; many of the upper level computer science courses were already taught by adjuncts; and enrollment in many of the upper level computer science courses had been relatively low for some years.

51. At the time that Holderman received her retrenchment notice, she was teaching Spanish, French, and remedial English writing courses. Although she fell under the purview of the English and Humanities department for all other purposes, the 2017-2018 retrenchment matrix lists Holderman as the sole faculty member in the Foreign Language department.

52. Holderman had been active in the grievance challenging Alves’s appointment in 2015. Holderman was also involved in supporting the Association throughout bargaining. She was a member of the Contract Action Team. She attended Education Board meetings. Holderman also had a number of contacts in the community and distributed yard signs for placement at local businesses and residences.

6The Association does not dispute the retrenchment of Replogle, Campbell, or Borman.

7In the 2018-2019 academic year, Business department faculty member Nila Stephens taught most of the BA131/CS120 courses, in addition to her other business courses.

9 53. Holderman had an adversarial relationship with Alves. She perceived that he engaged with her in a hostile manner. As a result, Holderman would not communicate with Alves unless there was another person present.

54. Holderman was consistently teaching a full load, because she taught both language and remedial writing courses. However, foreign language course enrollment had been decreasing in recent years. The College did not have any foreign language majors, and students seeking to transfer to four-year colleges were not necessarily required to take foreign language courses.

55. Alves testified that he recommended Holderman for retrenchment primarily because of the low enrollment numbers in foreign language courses, which made it difficult for Holderman to teach a full course load.

56. At various times in the past, the College had not employed any full-time foreign language faculty, and instead employed adjuncts to teach those courses as needed.

57. At the time that Vargas received her retrenchment notice, she taught freshman composition and literature courses. She was an active member of the Association, participated in activities with the Contract Action Team, and decorated her office with pro-Association materials. She was outspoken about some of Alves’s decisions. For example, she objected to his decision to cancel Holderman’s sequential Spanish courses.

58. Vargas typically taught a full load or an overload of courses. However, just before the retrenchment, she had experienced some difficulty in achieving a full load. Sometimes she would combine courses in order to offer more subject options and still get a full classroom. The 2017-2018 retrenchment matrix lists Vargas as the least senior member of the English/Communications department.

59. Alves testified that he recommended Vargas for retrenchment only because the College had determined that it needed to cut costs by retrenching faculty, Vargas was the least senior faculty member in the English department, and her course load could be absorbed by other faculty.

60. Although the other retrenched faculty were not as engaged in pro-Association activities as Holderman, Mason, and Vargas, Campbell and Replogle attended the December 2017 Education Board meeting, and Replogle and Borman attended the January 2018 Education Board meeting.

61. In his testimony at hearing, Alves described some of the alternative non-renewal and retrenchment options that he had considered, and his reasons for deciding against those alternatives, as follows:

IMAC (Industrial Manufacturing Automation and Controls): Justin Blazzard is the only regular faculty member in IMAC, and he had provisional status in the 2017-2018 academic year. Alves testified that he decided not to recommend non-renewal of Blazzard because the IMAC

10 program was brand new and looked promising, and the College had just contracted with Simplot to teach employees at its facility.

Equine Science: Wade Black is the only regular faculty member in Equine Science, and he had tenured status in the 2017-2018 academic year. Alves testified that he took a “hard look” at this program because it is also low enrolled. Alves ultimately decided against recommending retrenchment of Black because he had just finished developing an Equine Business degree to attract more students. That program would be offered for the first time in the 2018-2019 academic year, and Alves wanted to give the new program a chance to increase enrollment.

Business: Nila Stephens is the least senior of three regular faculty members in the Business department, and she had provisional status in the 2017-2018 academic year. Alves ultimately decided against recommending non-renewal of Stephens because she teaches in the medical assistant program (among others); the College had just launched that program at the recommendation of area employers that have many medical assistant job openings; the College believes it is an “up and coming” program; and the College had just hired a coordinator to teach the first half of that program.

62. As required by the Agreement, the Association and the College met to discuss possible alternatives to the retrenchment, on or about February 12, 2018. The College produced a document prepared by Alves, titled “Retrenchment Conversation,” which provided information about the positions that the College was considering retrenching.

63. With respect to Holderman’s position, the Retrenchment Conversation stated:

“Foreign Language – “Currently have (2) Foreign Language Students (1110) • TVCC does not have Foreign Language ‘Majors.’ • These two students are actually Associate of Arts – Oregon Transfer students, interested in foreign language. • Foreign Language classes are 4-credit classes. • Full-time instructor should teach 4-full classes each quarter. • Review of classes demonstrate that the instructor has not taught (4) full foreign language classes since Spring 2014-15. • Currently teaching some Developmental Education writing and College Survival (HDEV) classes to meet requirement.

“Facts:

• Place on list due to current budgetary concerns.”

64. With respect to Vargas’s position, the Retrenchment Conversation stated:

“English –

“Facts:

11 • Retrenchment is a partial or full layoff of any Association member which the College deems necessary because [of] a documented substantial program/department/college enrollment loss, lack of financial resources or departmental modification or consolidation. • This position is on the list due to college enrollment loss and lack of financial resources. • This program was not reviewed.”

65. With respect to Mason’s position, the Retrenchment Conversation stated:

“Computer Science – • Currently enrollment in Computer Science should be a growth area for TVCC. • BA 131/CS 120 are the same course with two different numbers. • This course is embedded in almost every degree and/or certificate. • (23) Computer Science (1050) Associate of Science degree seeking students.

“Facts:

• Retrenchment is a partial or full layoff of any Association member which the College deems necessary because [of] a documented substantial program/department/college enrollment loss, lack of financial resources or departmental modification or consolidation. • There are (19) courses required for a TVCC Computer Networking degree. Averaging (6) computer classes per quarter; without counting BA131/CS120 or Work Experience credits. • Six Computer classes should make (i.e. have more than 13 students per quarter) • Data indicates that TVCC has never had all (6) classes make. • This year (2) made in the Fall and only (1) computer science class made this Winter.”

66. At the February 12 meeting, Association members (including retrenchment candidates Vargas and Holderman) asked a number of questions and stated that they felt important information was missing from the Retrenchment Conversation. In particular, there was no financial data regarding Vargas’s position. Association members who attended did not find the College’s explanation of its retrenchment decisions satisfactory or compelling.

67. The Education Board met on February 20, 2018. At that meeting, the College administrators presented a revised version of the Retrenchment Conversation, titled “Retrenchment Packet.” The Retrenchment Packet was primarily prepared by Alves, and copies were provided to all Education Board members.

68. With respect to Holderman’s position, the Retrenchment Packet stated:

12 “Foreign Language – “Foreign Language was reviewed due to the fact that the faculty member has been making a significant part of her workload outside her subject area expertise, which is allowed by contract:

• TVCC does not have Foreign Language – students with an interest in foreign language are actually Associate of Arts – Oregon Transfer students. • We have (2) currently enrolled students that have expressed indicated [sic] a foreign language emphasis/focus. • Foreign Language classes are 4-credit classes. • Full-time instructor should teach 4-full classes each quarter. • Review of classes demonstrate that the instructor has not taught (4) full foreign language classes since Spring 2014-15. • The instructor is teaching some Developmental Education writing and College Survival (HDEV) classes to meet requirements.

“Note: Article 9.E., 3 states: The CBA allows, for the purpose of retrenchment, all courses taught in the College’s developmental education center, or taught under the general supervision or direction of that center, shall be considered courses that are available for assignment for all faculty members subject to retrenchment orders.

“**This means that the foreign language instructor is authorized to teach developmental writing classes, now and if retrenched.

“Facts:

• This position is being considered due to current budgetary concerns. • This position teaches courses outside of foreign language, in order to meet contract requirements. • If a transfer student obtains an AA degree or more than 35 credits – the student is not required to take any foreign language in most four-year schools. Only if the student did not take a foreign language in high school and/or has less than 35 college credits would a transfer student be required to take foreign language courses. • These factors are driving down our need to have (4) courses in foreign language. • Current instructor is making load by teaching Developmental Writing classes and Introduction to College type classes.

“Recommendation:

• Move this position to part-time due to budget. • The Foreign Language instructor has rights to teach Foreign Language and Dev. Writing classes.”

13 69. The Retrenchment Packet included a spreadsheet showing the calculations by which the College estimated that it could save $82,287 by retrenching Holderman and replacing her with a part-time, adjunct instructor.

70. With respect to Mason’s position, the Retrenchment Packet stated:

“Computer Science – • Currently enrollment in Computer Science should be a growth area for TVCC. • BA 131/CS 120 is the same basic computer class that is embedded in every degree and thus this course is not a good indication of the Computer Science degree viability. ○ BA 131/CS 120 is the same course with two different numbers. ○ BA 131/CS 120 courses could be taught by adjuncts, thus we looked at all other Computer Science courses. • TVCC has (23) Computer Science (1050) Associate of Science degree seeking students.

“Facts:

• There are (19) courses required for a TVCC Computer Networking degree without counting CS 120. • Data indicates that TVCC has never had all (6) classes make. • TVCC needs (6) or (7) classes to fill each quarter (i.e. have more than 13 students per quarter). • TVCC currently has only one or two courses filling each quarter. • The Computer Science instructor is working to revise the program to determine why we are unable to attract Computer Science students.

“Recommendation:

• Retrench if needed in order to balance the TVCC 2018-19 budget. • If able to retain, allow an additional year to attempt to resolve the enrollment and recruitment challenges. • The Computer Science instructor has rights to teach Computer Science classes.”

71. The Retrenchment Packet included a spreadsheet showing the calculations by which the College estimated that it could save $40,546 by retrenching Mason and replacing him with a part-time, adjunct instructor.

72. With respect to Vargas’s position, the Retrenchment Packet stated:

“English –

“Facts:

14 • The only reason to retrench[] this position is due to the lack of financial resources available at TVCC. • The data supports a full-time faculty member if affordable. • The College believes that if necessary for financial reasons, these classes can be absorbed by paying overload to the existing three English faculty and/or hiring part-time/adjunct employees.

“Recommendation:

“Retrench if needed in order to balance the TVCC 2018-19 budget.”

73. The Retrenchment Packet included a spreadsheet showing the calculations by which the College estimated that it could save $50,768 by retrenching Vargas and replacing her with a part-time, adjunct instructor.

74. The Education Board met on February 20, 2018, and the proposed retrenchments were on the agenda. During the discussion, Education Board Member Roger Findley stated that it appeared that five of the six positions paid their own way — meaning they earned enough for the College given their course load so that it did not make sense to retrench them. President Young responded that the College had been reviewing the entire financial situation and that the retrenchments were necessary because of a budget crisis.

75. Despite the concerns raised by Findley, the Education Board passed a resolution to authorize retrenchment of Replogle, Campbell, Holderman, Borman, Mason, and Vargas. Four Education Board members voted in favor, and two voted against, including Findley.

76. On March 14, 2018, President Young emailed the campus community announcing the non-renewals of Banner and Castonguay, and the retrenchment of Replogle, Holderman, Mason, and Vargas. Young also noted that Campbell had resigned, and that Borman had been retrenched but “would be allowed to fill the Math position vacated by Dominique Banner.”

77. The College offered Holderman, Mason, and Vargas the opportunity to teach courses as part-time adjuncts for the 2018-2019 school year. Holderman and Vargas elected to teach courses, but Mason declined.

78. As noted above, the parties reached a tentative agreement on or about March 9, 2018, and ratified the agreement on March 19 and 20, 2018. The College estimated that its savings from the terms contained in that successor agreement would be $192,448 in Year 1, $358,386 in Year 2, and $355,652 in Year 3.

CONCLUSIONS OF LAW

1. This Board has jurisdiction over the parties and the subject matter of this dispute.

2. The College did not interfere with, restrain, or coerce employees in violation of ORS 243.672(1)(a) when it retrenched three faculty members.

15 ORS 243.672(1)(a) Legal Standards

Under the Public Employee Collective Bargaining Act (PECBA), it is an unfair labor practice for a public employer or its designated representative to “[i]nterfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662.” ORS 243.672(1)(a). ORS 243.662 guarantees public employees “the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations.” Subsection (1)(a) has two prongs, commonly referred to as the “because of” and “in” prongs.

If an employer takes action “because of” employees’ exercise of protected rights, the employer’s actions are unlawful. To determine if an employer interfered with, restrained, or coerced employees “because of” the exercise of protected rights, we examine the employer’s motives or reasons for taking the action at issue. International Association of Firefighters, Local 890 v. Klamath County Fire District #1, Case No. UP-049-12 at 18, 25 PECBR 871, 888 (2013). It is not necessary for a complainant to prove that the employer acted with hostility or anti-union animus, or that the employer was subjectively motivated by an intent to restrain or interfere with protected rights. Id.

We determine the employer’s reasons for acting by examining the record as a whole. Amalgamated Transit Union, Division 757 v. Tri-County Metropolitan Transit District, Case No. UP-48-97 at 8, 17 PECBR 780, 787 (1998) (TriMet I) (cited with approval in Portland Assn. Teachers v. Mult. Sch. Dist. No. 1, 171 Or App 616, 626, 16 P3d 1189 (2000)). If, after considering all of the evidence from both parties, the facts persuade us that the employer acted for lawful reasons, the “because of” claim must be dismissed. Id.; see also Oregon AFSCME Council 75, Local 3742 v. Umatilla County, Case No. UP-18-03 at 9, 20 PECBR 733, 741 (2004). If the record persuades us that the employer actually acted for unlawful reasons, such that the employer’s stated reasons are a pretext for unlawful conduct, we will find a “because of” violation of subsection (1)(a). If we find that the employer acted for both lawful and unlawful reasons, we apply a mixed motive analysis. In that analysis, we determine whether, in the absence of the employee’s protected activity, the employer would have taken the same action. Portland Assn. Teachers, 171 Or App at 639; Amalgamated Transit Union, Division 757 v. Tri-County Metropolitan Transportation District of Oregon, Case No. UP-39-10 at 15-16, 25 PECBR 325, 339-40 (2012) (TriMet II).

When we analyze whether an employer’s actions restrained, interfered with, or coerced employees “in” the exercise of their protected rights, “the employer’s motive is irrelevant.” Id. at 15, 25 PECBR at 339. “We focus only on the effects of the employer’s actions on the employees. If the employer’s conduct, when viewed objectively, has the natural and probable effect of deterring employees from engaging in PECBA-protected activity,” the employer violates the “in” prong of subsection (1)(a). Id. An “in” violation may be either derivative or independent. An employer who commits a “because of” violation generally also commits a derivative “in” violation because an action taken in response to employees’ exercise of protected rights has the natural and probable effect of chilling the exercise of those rights. Id. An independent violation is typically “based on an employer’s threat or implied threat of interference with employees’ exercise of protected rights.” Tigard Police Officers’ Association v. City of Tigard, Case No. UP-59-10 at 11,

16 24 PECBR 927, 937 (2012). In order for a reasonable employee to be chilled in the exercise of protected activity, that employee must see some relationship between the protected activity and the employer’s actions or statements. Id. (citing Teamsters Local 223 v. Tillamook County Emergency Communications District, Case No. UP-46-95 at 8, 16 PECBR 397, 404 (1996)).

Analysis

The Association contends that the College retrenched three faculty members because they engaged in protected activity. The College does not dispute that those faculty members engaged in protected activity, but it maintains that it retrenched them for lawful reasons. The Association does not dispute that the College made the threshold decision to retrench faculty for a lawful reason, namely, its financial condition. Rather, the Association contends that the College violated section (1)(a) only when deciding which faculty members to retrench.8

More specifically, the Association contends that the Vice President of Academic Affairs, Edward Alves, selected certain faculty members for retrenchment because of their protected activity. The record establishes that Alves was primarily responsible for identifying which faculty members should be retrenched, and that President Dana Young and the Education Board adopted Alves’s recommendations. Thus, we focus our inquiry on Alves’s reasons for selecting the faculty members at issue.9

In this case, as in most “because of” cases, the parties have proffered competing explanations for Alves’s selections, and “our role in weighing the evidence and finding facts is to decide which party’s explanation of the employer’s reasons we believe.” TriMet I, UP-48-97 at 8, 17 PECBR at 787; Portland Assn. of Teachers, 171 Or App at 626 (“[R]esolution of the [“because of”] claim * * * ultimately reduces to which party’s explanation is the more persuasive and credible.”).

After reviewing the record as a whole, we find that the College’s explanation of the retrenchment selections is persuasive and credible. To begin, we note that there were two objective constraints on Alves’s discretion when making the selections. First, Alves needed to recommend enough retrenchments or non-renewals to address the College’s financial need. Alves ultimately recommended the non-renewal of two provisional faculty and retrenchment of six tenured faculty from seven different departments. The Association challenges only three of the retrenchments:

8The recommended order found that the College made the threshold decision to retrench six faculty because of its financial condition, not because of employees’ protected activity. The Association did not object to that finding, and at oral argument, the Association confirmed that the only remaining issue in the case is whether the College selected three particular faculty members for retrenchment because of their protected activity.

9The Association does not contend that Young or the Education Board adopted Alves’s recommendations for unlawful reasons. However, as the Association correctly notes, this Board has held that when a supervisor or other employer representative has taken or recommended action for unlawful reasons, the ultimate decision maker’s neutrality does not necessarily negate the unlawful conduct. See, e.g., Oregon School Employees Association v. Medford School District, Case No. UP-60-80, 10 PECBR 402 (1989) (because neutral decision-maker would not have taken action but for supervisor’s unlawful motivation and conduct, employer liable for unfair labor practices).

17 Claire Holderman, Dustin Mason, and Melissa Vargas. However, as noted above, the Association concedes that the retrenchments were financially necessary, and it no longer disputes the College’s threshold decision to retrench six faculty positions. As a result, we must assume that Alves had to identify at least six faculty to retrench, and that if he had not selected Holderman, Mason, and Vargas, he would have had to select three other faculty instead. Second, the parties agree that the College was required to comply with the retrenchment provisions of Article 9 of the 2012-2017 Agreement, including the provisions requiring the College to retrench faculty members in order of inverse seniority by department, using the 2017-2018 retrenchment matrix. Alves testified, and the Association does not dispute, that he complied with those provisions when making his retrenchment recommendations.

Alves further testified that when deciding which faculty members to retrench or non-renew (which would reduce costs), he tried to identify the faculty cuts that would have the least impact on students and programs. To minimize such impacts, Alves considered factors such as course enrollment levels; program popularity or potential; and whether the affected courses could readily be covered by remaining faculty or adjuncts. The record indicates that all of the non-renewals and retrenchments, including the disputed ones, met Alves’s stated selection criteria — that is, in each case, there were objective reasons to conclude that the retrenchment or non-renewal would have less impact on students and programs than the alternatives — and the Association offered no evidence that proves otherwise. We address each of the disputed retrenchments in more detail below.

At the time of the retrenchment, Vargas was tenured, but the least senior faculty member in the English department. According to Young and Alves, they agreed that Alves should select one faculty member from each of three larger departments—English, Math, and Science—because core courses in those departments could be consolidated (due to enrollment loss) and covered by the remaining faculty or adjuncts, and, as a result, faculty cuts in those departments would have relatively minimal impact on students and programs. Consistent with that rationale, Alves recommended the retrenchment of Vargas, the least senior faculty member in English; the non-renewal of Samuel Castonguay, the least senior faculty member in Science; and the non-renewal of Dominique Banner, the least senior faculty member in Math. Although the Association disputes only the retrenchment of Vargas, the fact that the College laid off the least senior faculty members in English, Math, and Science, tends to show that the College’s selection of Vargas was based on the stated, objective selection criteria, not on her protected activities.

Holderman was the only (and therefore the least senior) regular faculty member in Foreign Language. Alves testified that he recommended retrenchment of Holderman primarily because enrollment in foreign language courses was low. Alves also explained that the College had, in previous years, employed only adjuncts to teach foreign language courses, and that the College did not have any foreign language majors. As a result, the selection of Holderman also appears consistent with the College’s stated selection criteria: Holderman’s courses could be covered by adjuncts with relatively less impact on students and programs.

The third faculty member at issue, Mason, was the only (and therefore the least senior) regular faculty member in the Computer Science department. Alves testified that he selected Mason because the introductory computer course that Mason frequently taught could be covered

18 by other faculty members in the Business department; enrollment in Mason’s upper level computer courses was generally low; and the majority of upper level computer courses were already taught by adjuncts. Again, the selection of Mason appears consistent with Alves’s stated selection criteria.

The Association nonetheless contends that Alves’s stated reasons for selecting Vargas, Holderman, and Mason are a pretext for prohibited retaliation. However, the Association does not contest the factual bases of the rationales used by Alves, and ultimately adopted by the Board. That is, the Association did not rebut the College’s evidence that retrenching Vargas, Holderman, and Mason would reduce costs; that the courses taught by these three faculty members could be covered by the remaining faculty or adjuncts; that enrollment was low in the foreign language and computer science programs; and that these three retrenchments would have less impact on students and programs than the alternatives.10 Instead, to show pretext, the Association relies solely on circumstantial evidence of Alves’s alleged anti-union animus and purported deficiencies in Alves’s selection process. As explained below, the Association’s evidence and arguments do not convince us that Alves, and ultimately the College, selected the faculty at issue because of their protected activity.

The Association questions why Alves did not do an individualized “cost-benefit” analysis for each faculty member, and asserts that such an analysis would have shown that the faculty members at issue generated enough revenue to cover the costs of their employment plus overhead. The Association did not conduct that analysis itself or otherwise prove that each faculty member actually generated net revenue for the College. But even assuming that the Association’s assertion is correct, it is beside the point. The College has never claimed that it selected particular faculty members for retrenchment because they failed to generate enough revenue to cover the costs of their own individual employment and overhead. Rather, the College retrenched regular faculty members because it concluded that it could minimize the impact on students and programs while reducing costs (which would generate more net revenue) by employing fewer regular faculty members and replacing them with adjuncts (to the extent necessary). The Association did not introduce any evidence to refute that conclusion. To the contrary, the Association has repeatedly conceded that the College could reduce costs by replacing regular faculty members with adjuncts.11

Given that the College could have saved comparable costs by replacing any regular faculty member with an adjunct, the Association correctly contends that the cost savings alone do not fully

10The Association disputes only one of the facts that Alves relied on to explain his selections: contrary to Alves, Mason testified that other Business department faculty were not qualified to teach the basic computer course that was cross-listed in the Computer and Business programs. However, Alves testified that Business department faculty taught that course in the fall of 2018, and the Association did not rebut that testimony. Accordingly, on this record, we credit Alves’s testimony.

11The Association also points out that after the retrenchment, in the fall quarter of 2018, the College offered Mason the opportunity to teach six computer classes as an adjunct. The Association argues that the fact that the College did not recall Mason as a regular faculty member, even though six courses constitute a full course load, proves that the College’s motive for retrenchment was “something other than finances.” We disagree because the record indicates, and the Association does not dispute, that employing Mason as an adjunct would cost less than employing him as a regular, full-time faculty member. Thus, the College’s decision not to recall Mason is entirely consistent with its threshold reason for retrenching him (and other faculty members)—to save money.

19 explain how Alves selected which individuals to retrench. The Association incorrectly asserts, however, that Alves provided no other explanation (and therefore, it suggests that we should infer that Alves must have selected the individuals at issue because of their protected activity). Alves explained that he selected the faculty members who could be replaced by adjuncts or remaining faculty with the least impact on students and programs. Again, there is no evidence showing that retrenching or non-renewing faculty members other than Holderman, Mason, and Vargas would have had less impact on students and programs.

The Association argues that the College’s explanation lacks credibility because Alves did not use one common metric to make all of the retrenchment selections. However, we find that Alves did use a common metric: as discussed above, he selected faculty who could be retrenched with minimal impact on students and programs. Individual faculty members satisfied that metric for different reasons. For example, Vargas did because she worked in a large department (so the remaining faculty could cover at least some of her courses), while Holderman did primarily because foreign language enrollment was low (so relatively few students would be affected). Considering those differences, we do not find any inconsistency or contradiction that undermines the College’s explanation.

The Association also contends that the College’s stated reasons for the retrenchment selections are pretextual because they have changed over time. However, we find that the stated reasons have been consistent. For one example, in the document that Alves prepared for the February 12, 2018, retrenchment meeting with the Association, Alves wrote that Vargas’s position “is on the list due to college enrollment loss and lack of financial resources,” and that “[t]his program was not reviewed.” In the February 19, 2018, document that Alves prepared for the Education Board, Alves wrote that the “only reason” to retrench Vargas’s position was “lack of financial resources”; that the “data supports a full-time faculty member if affordable”; and that, “if necessary for financial reasons,” her courses could be “absorbed by” paying overload to existing faculty or hiring adjuncts. At the hearing in this matter, Alves testified that he recommended Vargas for retrenchment only because she was the least senior member of the English department and her course load could be absorbed by the remaining faculty (in part due to the College’s enrollment loss), and that there was no reason to retrench Vargas other than financial necessity. Although Alves’s initial written explanation of his reasons for selecting Vargas was minimal and blunt, we find that his stated reasons for selecting Vargas have been, in material respects, consistent over time.

The Association also contends that it proved that the three faculty at issue engaged in protected activity that “directly challenged Alves more aggressively than their peers,” and argues that this is circumstantial evidence that Alves harbored anti-union animus against them. We note that it is not necessary to prove anti-union animus to establish that an employer took action “because of” protected activity. However, evidence of animus may be relevant, and in this case, the Association contends there is sufficient evidence of animus to prove that Alves’s stated reasons for his selections are a pretext for unlawful retaliation. The College maintains that the Association failed to demonstrate that Holderman, Mason, and Vargas engaged in protected activity that challenged Alves more aggressively than other faculty. We need not resolve that factual dispute, because even assuming that they did, such circumstantial evidence of animus is not, on this record,

20 sufficient to persuade us that Alves’s stated reasons for his selections are a mere pretext for retaliation.12

We also note that some of the evidence tends to show that Alves did not harbor anti-union animus against the faculty at issue. For example, in the Retrenchment Packet that Alves provided to the Education Board, Alves recommended that the College retrench Mason only “if needed to balance the TVCC 2018-19 budget,” and if the College were “able to retain” Mason, Alves suggested that it “allow [Mason] an additional year to attempt to resolve the [Computer Science department’s] enrollment and recruitment challenges.” The Association does not dispute that Computer Science had enrollment and recruitment challenges, and we find it unlikely that Alves would have advised the Education Board to give Mason another year to address those challenges if he actually intended to retaliate against Mason for his protected activity.

Moreover, even if the Association had proved that Alves acted for both lawful and unlawful reasons, we would apply a mixed motive analysis to determine whether Alves would not have selected Holderman, Mason, and Vargas “but for” their protected activity. To make that determination in this case, we would first consider whether there were any other faculty (1) who engaged in less protected activity (or challenged Alves less), and (2) who could have been retrenched (or non-renewed) with comparable (or greater) cost savings, and comparable (or less) impact on students and programs. Because the record does not reveal any such alternatives, and there is no other evidence establishing a “but for” causal link between the employees’ protected activity and Alves’s selections, we are persuaded that Alves would have made the same selections even if the faculty members had not engaged in protected activity.13

In sum, after considering the record as a whole, we find that the College did not retrench Holderman, Mason, and Vargas because of their exercise of protected rights.14 Accordingly, we dismiss the Association’s section (1)(a) claim.

12The Association has also argued that the timing of the retrenchments is circumstantial evidence of animus or retaliatory motive. Although the retrenchment selections occurred close in time to the protected activity, and in some cases timing can be evidence of causation, in this case, the timing has an independent explanation: the Agreement’s retrenchment process deadlines required the College to act when it did. After considering the timing under the totality of the circumstances, we decline to draw an inference of animus.

13In reaching this conclusion, we note that Alves identified various alternatives that he considered, and explained why he decided against recommending retrenchment or non-renewal of those faculty members. The Association did not rebut any of the factual bases of Alves’s explanations. As a result, we find them credible and persuasive. For example, the Association asserts that the College could have retrenched Nila Stephens, the least senior faculty member in the Business department, instead of Mason. However, Alves testified that he concluded that retrenching Stephens would have a greater impact on students and programs because Stephens teaches courses in two priority programs, and she could also teach the introductory business and computer science course that Mason frequently taught. The Association did not prove otherwise.

14Because the Association has never argued that the College’s actions independently violated the “in” prong of section (1)(a), we do not address that issue.

21 3. The College did not violate ORS 243.672(1)(c) by discriminating against three employees on the basis of their protected activity.

ORS 243.672(1)(c) makes it an unfair labor practice for a public employer to “[d]iscriminate in regard to hiring, tenure or any terms or condition of employment for the purpose of encouraging or discouraging membership in an employee organization.” The elements of a subsection (1)(c) violation and a subsection (1)(a) “because of” prong violation are similar. A complainant proves a violation of subsection (1)(c) by showing protected activity, employer action, and a causal connection between the two. International Longshore and Warehouse Union, Local 28 v. Port of Portland, Case No. UP-35-10 at 14-15, 25 PECBR 285, 298-299 (2012).

We concluded above, based on the record as a whole, that there was not a causal connection between Holderman’s, Mason’s, and Vargas’s protected activity and their retrenchment. For the same reasons, we also conclude that the College did not violate ORS 243.672(1)(c), and we dismiss this claim.

ORDER

The complaint is dismissed.

DATED: June 26, 2019.

______Adam L. Rhynard, Chair

______Lisa M. Umscheid, Member

______Jennifer Sung, Member

This Order may be appealed pursuant to ORS 183.482.

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