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Treasure Valley Education Associa 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
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