PLEASE NOTE THIS IS AN EVOLVING BLOG IN RESPONSE TO NEW INFORMATION PLEASE CHCK LATEST ENTRIES FOR CORRECTIONS AND ADDITIONS THAT WILL OCCUR WITH NEW INFORMATION
The federal offense of failure to disclose a felony, if coupled with some act concealing the felony, such as suppression of evidence, harboring or protecting the person performing the felony, intimidation or harming a witness, or any other act designed to conceal from authorities the fact that a crime has been committed.
Title 18 U.S.C. § 4. Misprision of felony. Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
A federal judge, or any other government official, is required as part of the judge’s mandatory administrative duties, to receive any offer of information of a federal crime. If that judge blocks such report, that block is a felony under related obstruction of justice statutes, and constitutes a serious offense.
Upon receiving such information, the judge is then required to make it known to a government law enforcement body that is not themselves involved in the federal crime.
Misprision of a Felony
Misprision of a felony is the offense of failure to inform government authorities of a felony that a person knows about. A person commits the crime of misprision of a felony if that person:
• Knows of a federal crime that the person has witnessed or that has come to the person’s attention, or failed to prevent.
• Fails to report it to a federal judge or other federal official (who is not themsselves involved in the crime).
Another Federal Statute for Forcing A Federal Officer To Perform a Mandatory Duty
Another federal statute exists for reporting high-level corruption in government:
Title 28 U.S.C. § 1361. Action to compel an officer of the United States to perform his duty. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
This federal statute permits any citizen to file a lawsuit in the federal courts to obtain a court order requiring a federal official to perform a mandatory duty and to halt unlawful acts. This statute is Title 28 U.S.C. § 1361.
These two statutes are among the most powerful tools in the hands of the people, even a single person, to report corrupt and criminal activities by federal officials−including federal judges−and to circumvent the blocks by those in key positions in the three branches of government. That statute was also repeatedly blocked by federal judges and Justices of the U.S. Supreme Court.
Top Government Personnel Repeatedly Violating Crime Reporting Statute
For over 40 years, former federal agent Rodney Stich has attempted to report the continuing corruption in the government’s aviation safety offices related to a series of continuing aviation disasters, and of criminal activities inflicting great harm upon the American people and upon the United States, to:
• Management in government aviation safety offices: FAA and NTSB
• Political Board Members
• Members of Congress.
• Employees of the U.S. Department of Justice.
• Federal judges
CORRUPTION, SERIAL VIOLATIONS OF CIVIL AND CONSTITUTIONAL RIGHTS, REPRISALS AND COVER-UPS
Please note: This is from the WEA Arbitration that occurred after a previous Employment Security Department Appeal by Clark College that I lost partly because had WEA exposed in this brief all of the compound injustices and serial violations of basic due process that was the foundation for all that followed including up to now, WEA would have had to also expose themselves to issues of how it was possible for what they say in their briefs were egregious violations of my Constitutional due process and Contractual rights that were not only allowed to occur without protest or Unfair Labor Practices and other legal actions, but in some cases even aided and abetted.
It was at this arbitration that the sworn, and subject to cross-examination by Ms. Bonnie Terada of the AG’s office, testimonies of Lynn Davidson of the WEA and Dr. Marcia Roi then-president of AHE were given. These testimonies directly contradicted in material ways, the sworn testimony of Clark College president Robert Knight at the previous ESD Appeal.
I did not have these sworn testimonies available to me to use in the cross-examination of Mr. Knight at the previous hearing, but Ms. Bonnie Terada, AAG for Clark College, was well aware that the sworn testimonies of Ms. Davidson and Dr. Roi if not perjury, then meant that the sworn testimony of Mr Knight was perjurous per se; and vice versa. And as an Officer of the Court, as a member of the AG’s Office, as a member of the Washington Bar, as well as a public employee, she had an affirmative duty to report the potential perjury and certainly to try to rebut the testimonies of Ms Davidson and Dr. Roi.
I have on tape, presented to law enforcement and Thurston County Superior Court, and it will be made available on this blog, my attempts at various hearings to have Mr Knight address these allegations and Dr. Roi was present when he was asked if inded he had made such statements. Four times he refused to affirm or deny having made the statement while in the presence of Dr. Roi. He could have called her a liar on the spot, and even had her written up for perjury and harassment against him on her part and on the part of Ms Davidson. Finally, my last meeting, I have him denying these alleged statements on tape but only when Dr. Roi was not present and Ms Davidson was not present. That tape also will be put out on this blogsite because this is public business and serious business.
The portions in this brief are noted addenda written by me to show what was omitted from the brief that was relevant to it.
WEA-Riverside UniServ Council
5516 NE 107th Avenue, Suite 200
VANCOUVER, WA 98662
(360) 256-0880 Email: firstname.lastname@example.org
IN THE HEARING BEFORE
ARBITRATOR KATHERYN T. WHALEN
JAMES CRAVEN )
) GRIEVANT’S CLOSING
Vs. ) ARGUMENT ) )
CLARK COLLEGE )
Lisa Lewison hereby submits her Closing Arguments on behalf of James Craven:
On Thursday, November 3, 2010 and Friday, November 4, 2010, an arbitration took place on the Clark College Campus in Vancouver, Washington, involving Clark College (hereinafter “the College”) and the Clark College Association of Higher Education (hereinafter “the Association”).
II. STATEMENT OF THE ISSUE
The Association and the College stipulated to the following issue statement:
“Did Clark College have just cause to impose a 108-day (2-term) suspension to Professor Craven? If no, what is the appropriate remedy?”
III. RELEVANT PROVISIONS OF THE AGREEMENT
* Article III, A. 2 and 5
* Article VIII, G.
Professor James Craven has been a tenured Professor of Economics at Clark College since September 1992. He is featured in multiple academic versions of Marquis “Who’s Who in: the World; America; the West; Science and Engineering; Finance and Industry; American Education and has been nominated as Weilun Visiting Professor of Economics at Tsinghua University in Bejing, the MIT of China (only four given each year in the world) three times. Mr. Craven has served as a visiting professor in China on four occasions, and recently was asked to join the Editorial Board of a journal of the Chinese Academy of Social Sciences.
Mr. Craven has served as the Clark College Business Division Chair from 2001-2009, was a member of the AHE Senate for over seven years, and served on multiple academic committees. Mr. Craven volunteered as the Faculty Sponsor for the Native American Student Association and the Veteran’s Club. Mr. Craven is a traditionally enrolled Blackfoot Indian, from the Apatohsipipiikani (Northern Peigan ) Blackfoot Band in Alberta, has served as a tribal judge, and is published in aboriginal law. Mr. Craven is a Vietnam-era veteran of the US Army from 1963-1966.
On October 15, 2007, Mr. Craven attended an “Open President’s Dialogue.” Mr. Craven asked a question of President Bob Knight, who angrily shouted him down, effectively silencing the audience for the remainder of the forum. Jennifer Wheeler, former President of the Classified WPEA union attended the forum, and testified she took verbatim notes, which she provided to Mr. Craven and his union.
On Friday, November 9, 2007 AHE President, Dr. Marcia Roi and UniServ Director Lynn Davidson met with President Knight and Vice President of Instruction, Rassoul Dastmozd, for a labor management meeting in his office. While in this meeting AHE President Roi, told President Knight there was a “morale problem on the campus.” President Knight responded there is not a morale problem; morale will improve when we get rid of Professor Craven.” This was never refuted by management in the hearing.
“WEA-Riverside Director Lynn Davidson and AHE President, Dr. Marcia Roi testified to a labor management meeting they attended with President Bob Knight and Vice President Rassoul Dastmozd on Friday, November 9, 2007. AHE President Roi testified she told President Knight there was a “…morale problem on the campus.” President Knight responded “There is not a morale problem; morale will improve when we get rid of Professor Craven.” This was never refuted by management in the hearing. Ms. Davidson testified she was “shocked” President Bob Knight would say something like this to union representatives, and based on her expertise was troubled because his statements showed the union “should expect animosity by the President and the College in future dealings” related to Mr. Craven.”
OFFICIAL TRANSCRIPT OF TESTIMONY OF ROBERT KNIGHT IN THE COURT OF ALJ KNUTSON
[NOTE ADDENDUM JC: This testimony, by Dr. Marcia Roi and Ms. Lynn Davidson, sworn under penalty of perjury, directly and irreconcilably contradicted the sworn testimony of President Knight during the previous hearing before ALJ Knutson, that he never made such a statement and that, when asked twice, in two different meetings, about if he had made such a statement, he not only denied having made the statement, he also claimed that he had only refused to answer and affirm or deny the statement (meetings were taped), in two separate meetings, because he was there to ask not answer questions.]
2007, 2008, 2009 were difficult years for Professor Craven on the Clark College Campus, as the College began “piling on” discipline in an attempt to get rid of him. During this time frame, Mr. Craven served as a visiting Professor in China on three occasions and was also on medical leave for great durations due to recovery from one possibly two heart attacks.
[ADDENDUM JC: Please note during this time, while on sick leave, I was given a summary reprimand for posting on the message list, where people advertise their cats etc., with no rhetorical comments, a list of statutes—federal and RCWs—relevant for public employees (the same list the Dean praised me for giving him and a same list posted three times previously on the same message list with no comments or sanctions). Then I was given 7 days off without pay, no Laudermill Hearing, no Stage I and II appeals per the Clark College-AHE contract, thus no opportunity for arbitration self or otherwise financed, and no opportunity to create a record for future venues. This was followed by 8 days off without pay and again, no Laudermill Hearing, no Stage I and II appeals and thus no possibility to go to arbitration or create a record for future venues. The union was basically first assured of delayed timelines for grievances while I was on medical leave and then was summarily played on delayed timelines that were suddenly and un-explicably dropped with no challenge from the union. In refusing to file Unfair Labor Practices as they had done before against Clark College, this resulted not only in my punishment without due process, and while lower levels of discipline had not been imposed without the allowed appeals that I never waived, but the union also allowed my discipline was to be timed and imposed to commence the first week of my return to teaching (two separate quarters) which was then used a pretext to take my classes (I was not available to each the first week of the quarter due to their timing of punishment) and assign them to adjuncts who had been hired un-vetted by anyone qualified to vet them for competence and skill in teaching economics. This cost more loss of pay as I was scheduled to teach overload and this also deprived the students of the teacher for whom they had signed up. This again speaks to the levels of animus and malice driving those who have charged me and engineered accelerated progressive discipline aimed at the object to “get rid of professor Craven”. This is also in my opinion pure Conspiracy to Trade in Public Employment. Further, the union, WEA-AHE acquired a “mutuality of interests” with those they are being paid to oppose in that any competent defense against and investigation of corruption, major felonies, and serial denials of due process (that the union itself alleges in this and other briefs, including sworn testimonies of Marcia Roi and Lynn Davidson that allege perjury by Clark College president Robert Knight), also expose how little the union has done to stand against it, the dangerous precedents the union has allowed to stand against other members, and even how some elements in WEA-AHE have actively and opportunistically colluded with corruption, felonies and dangerous precedents against the general membership]
Mr. Craven suffered a heart attack and from September 2008, and was on medical leave until April, 2009. While on leave, Ted Kotsakis, Dean of Business and Technology, initiated a Division Chair election to remove Professor Craven from the position of Division Chair, which he had held since 2001 and which he was not due to leave until September 2009.
The Collective Bargaining Agreement (Article III. Personnel, I.) Division Chairs provides clear and unambiguous language delineating the process by which a Division Chair is elected. Mr. Kotsakis, contrary to the Collective Bargaining Agreement, inserted himself in the Division Chair election process which resulted in Mr. Craven losing the Division Chair position, wages, and associated benefits. As a result, Professor Adnan Hamideh was elected Division Chair.
In February 2009 Mr. Craven and Mr. Hamideh exchanged emails on College email related to the responsibilities of Division Chair. Professor Craven received a letter from Mr. Kotsakis on February 17, 2009, notifying him that his email dated February 6, 2009 at 10:49 AM “has been brought to my attention as being threatening, harassing, and abusive” and notifying him that upon his return to work he would be given the opportunity to respond to all concerns raised by this investigation. In fact, as the evidence established, the words threatening, harassing, and abusive were the words of Mr. Kotsakis and others in the administration.
Mr. Craven received a letter from Katrina Golder, Vice President of Human Resources, on April 27, 2009, referencing e-mail sent on February 6, February 8, and April 20th, 2009. Ms. Golder informed Mr. Craven, “This is to advise you that the College has received a complaint from Adnan Hamideh regarding the emails of April 20, February 6 and February 8, 2009;” the College enclosed copies of the referenced emails and the April 20th complaint, as attachments.
Clearly the College failed to comply with the Collective Bargaining Agreement (Article III. Personnel, A. #5) which states “Any complaint not called to the attention of the faculty member within ten (10) contracted days of notice to the College, may not be used as the basis for any disciplinary action against a faculty member.” Prior to April 27, 2009, Mr. Craven had received no communication from the College that there was any concern regarding a February 8, 2009 email.
The April 27th, 2009 letter said in part, “this is to advise you that the College has received a complaint from Adnan Hamideh regarding the emails of April 20th, February 6 and February 8, 2009.” This was shown to be untrue through the cross-examination of Mr. Hamideh and Ms. Golder. No complaint was filed regarding the February 6th or 8th emails; the only complaint filed was in regard to an April 20th email sent from Mr. Craven to Mr. Hamideh.
Mr. Craven sent an email on April 20, 2009 to Mr. Hamideh, the members of his Division, AHE President Dr. Marcia Roi, and WEA UniServ Director, Lynn Davidson. In this email Mr. Craven expressed displeasure regarding what he viewed as violations to the Collective Bargaining Agreement related to seniority rights and assignment of classes. Mr. Craven testified he used a metaphor in his email which contained the word Palestinian, referring to behavior, not to a specific individual. Professor Gene Johnson and Professor Gerard Smith both testified to their knowledge of Mr. Craven’s use of metaphors in writing and in speech.
AHE President, Dr. Marcia Roi, sent an email to all AHE Faculty and Adjuncts on the AHE union list on March 18, 2009. President Roi sent the email specifically on a list set up by the College for union business. Ms. Roi, Mr. Johnson, and Mr. Craven all testified to receiving this union communication on the union list. Phil Sheehan, Director of Information and Technology Services, testified to the existence, creation, and purpose of this list, and that this list, indeed, “was specifically meant for union business.”
The title of President Roi’s email was P.S. Academic Freedom and Tenure. Ms. Roi testified she sent the email because there were a lot of rumors and fear on the campus about the denial of tenure of faculty, and that multiple faculty had responded to her email, including Mr. Craven.
Mr. Craven testified that he did, indeed, respond to the union email, on the union list, and the intent of his email was to express concern and empathy for two faculty members, Christina Kopiniski and Ali Aliabadi, who did not receive tenure. In his response, Mr. Craven used the quotation “Chemical Ali” when questioning what may have been the College’s rational for denying a professor tenure. Mr. Aliabadi and Mr. Craven exchanged additional emails based on Mr. Aliabadi’s questioning of Mr. Craven’s use of the term “Chemical Ali.” Email evidence proves Mr. Craven apologized, repeatedly, on union email to Mr. Aliabadi, and explained the context (that Professor Craven was told by Professor John Fite that Aliabadi, whom Professor Craven still has never met and hence no animus between them, had jokingly introduced and referred to himself, in conversations with John Fite and two other faculty members, as “Chemical Ali” because he taught Chemistry and his name was Ali; hence this ascribed nickname “Chemical Ali” was placed in quotes) himself- of his use of quotation marks–and that he meant no harm. Mr. Aliabadi responded, and accepted Mr. Craven’s apologies, and the matter was resolved professionally between the two individuals on the union email. Mr Craven’s apologies to Professor Aliabadi were taken and used as some kind of admission of guilt and consciousness of guilt when they were really no more than Craven’s sensitivity in wanting to apologize for any harm felt even if unintended, unforeseeable and without any malice or animus or intent to disparage Professor Aliabadi in any way.
Ms. Roi and Mr. Johnson testified they interpreted Mr. Craven’s union email as concern for faculty who were denied tenure. Mr. Johnson, in his testimony, likened the union email exchange as “an electronic union meeting.”
Mr. Craven received a letter from Mr. Kosatkis on April 9, 2009, informing him the College had received a complaint and that “the email dated March 18, 2009 at 3:05 PM sent by you to Marcia Roi, Kimberly Sullivan, AHE adjuncts and AHE faculty has been brought to my attention as threatening, harassing, and abusive.”
Mr. Kosatkis testified he received Mr. Craven’s March 18, 2009 email from Julie Lemmond, an Adjunct and AHE member who had received the email on the AHE Union list. Upon receipt Ms. Lemmond forwarded Mr. Craven’s email from the union list to Mr. Kotsakis, her Dean, with a simple message “fyi.”
Ms. Golder, when cross examined about the “complaint” Mr. Kotkakis had referenced in his April 9, 2009 letter testified the… “College never had received a complaint” about the March 18, 2009 email and that “an email in and of itself is not a complaint.” Ms. Golder, when asked about Ms. Lemmond, further testified that “Ms. Lemmond had had issues with Professor Craven” and the College had lost an Unfair Labor Practice filed by the Union/Professor Craven based on Ms. Lemmond’s and the College’s refusal to provide information and evidence that was potentially being used against Professor Craven for disciplinary purposes. The Public Employee Relations Commission’s December 9, 2008 award demanded Ms. Lemmond and the College produce the documents in question.
The College hired an external investigator Amy Stephson in April 2009 to investigate Mr. Craven matters. Ms. Stephson testified she had met with the College in advance of meeting with Mr. Craven, and she had been paid $10,000 for her work.
Mr. Aliabadi was later contacted by Vice President Katriana Golder, on April 28, 2009 and was asked to meet with Investigator Stephson regarding the March 18, 2009 email exchange. Mr. Aliabadi expressed concern regarding how the College was aware of this union communication and interchange on union email; that he had no complaint with Mr. Craven, and he viewed the matter to be resolved. Mr. Aliabadi refused to meet with Investigator Stephson, as he [Aliabadi] “has no grievances with him [Craven]”. AHE President, Dr. Marcia Roi testified she was contacted by Mr. Aliabadi for advice about Ms. Golder’s email, and told her he was greatly disturbed the College was pursuing this, as he viewed this to be a union issue, and that the matter had been resolved. There was testimony that Mr. Aliabadi was offered by Katrina Golder assistance in finding future employment if he would agree to file a complaint and meet with the investigator.
Mr. Craven sent an email titled High Noon, on April 27, 2009 to union members on the union email list. In this email he stated “this happened before with initiatives 601 and 602 that threatened cutbacks and layoffs initially. Union membership went up, the entrepreneurial types jockeyed for close proximity and face-time with administrators, supposed friends betrayed supposed friends, and GI Joe’s did a booming business on “kneepads and chapstick.” Mr. Craven testified he was speaking in past tense, the early 1990’s, and that the email was a reference to the movie High Noon when the townspeople sent the sheriff out by himself to fight for them and then cowered and tried to make deals for themselves. Mr. Craven further testified his email was a call of support for their AHE Union President, Dr. Marcia Roi, and for faculty “to not just stick her out there alone.” Mr. Craven went on further in his email to address criticisms of College President Bob Knight, and congratulated President Roi for her efforts to challenge the issue whether or not Mr. Knight was qualified to serve as President as he had been hired without open competition for the position contrary to the Board of Trustees protocols and handbook and without holding the established minimum credentials for the position.
Mr. Dastmozd received an email April 29, 2009 at 3:38 PM from Adjunct Professor, David Reed about a concern he had regarding an email he had read on the AHE union list authored by Mr. Craven. Mr. Dastmozd, 1 minute after reading the email, forwarded the email to Ms. Golder and Mr. Kotsakis.
Mr. Craven received a letter from Mr. Kotsatkis on May 13, 2009, with a corresponding email, date/time stamped after 5 PM, notifying him the College had received an email from Adjunct Instructor David Reed. The College informed Mr. Craven they had become aware of this matter on May 11, 2009 and that “this email contains comments that may be viewed as inappropriate and of a sexual nature.”
The Collective Bargaining Agreement (Article III. Personnel, A. #5) provides clear and unambiguous language regarding the expectation for the College to provide notice of complaints within 10 days. The date/time stamps of the emails prove the College did not notify Mr. Craven of the David Reed complaint in a timely manner.
Ms. Golder sent an email with attachments to Mr. Craven Tuesday, May 26, 2009 at 6:27 PM notifying him the College would be including the David Reed/High Noon email/complaint in the topics to be investigated by Ms. Stephson.
The AHE and Mr. Craven had repeatedly asked the College to provide any and all documentation that was to be used as a basis for determining any discipline. The Reed/Dastmozd email exchange was never provided to the union. The union became aware of the email/document in a June 2009 meeting with Ms. Stephson when they noticed a stack of papers to which she was referring.
Mr. Reed was crossed examined by Ms. Lewison and when asked if there was any reference to oral sex in the High Noon email Mr. Reed testified, “No, there is not.” Further, Mr. Reed testified he had done a internet search to search the meaning of “Kneepads and Chapstick” in preparation for the hearing. Ms. Lewison asked why he felt the need to do a search of the meaning, if he already was certain of the meaning. Mr. Reed testified “It was part of his due diligence to prepare for this hearing.”
Mr. Reed had no answer when asked why he would/could feel personally named and offended, enough to make a complaint, by reference to a general climate in the early 1990s when he was not at Clark College and with no reference to him personally. And in his “due diligence” on the subject of the common meaning or use of the metaphor “kneepads and chapstick” he apparently failed to find the easily available “Urban Dictionary” entry which lists many meanings having nothing to do with anything sexual.
Ms. Stephson met with Mr. Craven, AHE President Dr. Marcia Roi, and WEA-Riverside UniServ Director Lynn Davidson on June 6, 2009. Mr. Craven, Ms. Roi, and Ms. Davidson testified they asked Ms. Stephson repeatedly for any complaints, documentation, and/or reason(s) Mr. Craven was being investigated, and received the response “It will become apparent as we go along.”
Phil Sheehan, Director of Computing Services, sent an email to all faculty and adjuncts on Thursday, June 11, 2009 reminding them “the two special lists (AHE faculty and AHE Adjunct Faculty) were created for the purpose of conducting union business.”
Ms. Stephson met with several individuals throughout the course of her investigation and prepared a written report, submitted to the College on June 17, 2009.
Mr. Johnson testified he was interviewed by Ms. Stephson. Specifically, Mr. Johnson recalled Ms. Stephson asking him the meaning of “Kneepads and Chapstick” and that he told her about his time in Catholic School with Sister Rose, a Dominican Nun. From his upbringing, the meaning was “kissing the bishops ring, and the protocol when you get presented with his ring you kneel down to kiss it.”
During cross examination, the union asked Ms. Stephson why key information and witness information from her interviews, supportive of Mr. Craven, was not included in her findings of fact. Ms. Stephson testified she had decided the friends and colleagues of Professor Craven were not credible and that they had been given the “Craven Party Line,” and thus, this was her rationale for not including the information. Ms. Stephenson’s response shows she was biased and any possibility of objectivity in regard to her investigation of Mr. Craven was completely compromised.
As further evidence of Ms. Stephson’s predisposition the union specifically asked her about her interview with Mr. Johnson and why she did not include any of the information shared by Mr. Johnson as evidence in her report. Ms. Stephson testified she “…found him to be rude and dismissive and I did not take what he had to say seriously.” Further, Ms Stephson, in her report, made no reference to her ex parte (without the knowledge of the union representing Mr. Craven who thought that the union representing him had been advised and that no lawyer would dare go around someone’s legal representation) request of “Your legal opinion” and legal arguments (Craven not an attorney) that was submitted to her; nor did she address any of the arguments made in the requested submission.
[ADDENDUM JMC: Further, Ms. Stephson made no reference to the four copies of the same letter notifying me of pending discipline (two sent to my home address and two sent to my official mailing address that Clark College had used many times), sent on December 23, 2009, while I was in a critical care unit at Southwest Medical Center as a result of two emergency heart surgeries December 19th and December 23rd 2009. Ms Stephson asked for and was given those four letters and when and to where they had been mailed, as she admitted that this was evidence of serial and extreme malice and animus on the part of those charging me or causing me to be charged through use of proxies.]
On October 29, 2009 the College sent Mr. Craven a certified letter announcing there was merit to impose a 108-day suspension (2-terms) without pay based on the series of emails dated from February, March, and April 2009. This conclusion was announced prior to any hearing, and prior to any meeting for Mr. Craven to respond to any allegations. In the letter the College further notified Mr. Craven it was their intent to terminate his medical benefits from January 4, 2010 through June 18, 2010.
Mr. Smith testified he had sent an email to Mr. Craven on November 4, 2009 in which he expressed frustration with the lack of fundamentals of due process at Clark College, and that the College has a reckless disregard for your well-being . He continued “…many faculty can attest, and classified staff as well, that the administration at Clark despises you and wishes you gone, and will use whatever pretense to make that happen.”
On or about November 12, 2009 Mr. Craven learned the College had changed the online course registration and given firm commitments to replacements, had removed him from his assigned classes for Winter and Spring Quarters 2010. On November 16, 2009 at 7:09 AM Mr. Craven sent an email containing the changed schedules to AHE President, Dr. Marcia Roi and WEA-Riverside UniServ Director, Lisa Lewison. To date, the College had not yet met with Mr. Craven to afford him an opportunity to respond to their assertion that there was merit to impose a 108-day suspension without pay. The one Laudermill Hearing that Mr. Craven got, the verdict, and action on the verdict was made prior to the very hearing on November 20, 2009 to determine if or if not he would be teaching Winter quarter.
The union represented Mr. Craven in a meeting with the College on Friday, November 20, 2009. On December 1, 2009, Clark College formalized its already concluded 108-day suspension without pay in a letter to Mr. Craven, informing him he would serve the suspension at the start of the Winter Quarter 2010 and conclude with the Spring Quarter 2010.
AHE President, Dr. Marcia Roi, interceded on Mr. Craven’s behalf, and informed the College that terminating Mr. Craven’s and his family’s medical benefits was punitive; the union was successful in persuading the College to reinstate Mr. Craven’s and his family’s medical benefits.
Mr. Craven served a 108-day (2-term) suspension without pay, and returned to work teaching summer school in June 2010.
IV. ASSOCIATION ARGUMENTS
The College is a legal partner with the union to the Collective Bargaining Agreement and thus has a legal obligation to uphold the provisions contained therein.
The Collective Bargaining Agreement (Article III. Personnel, A. Discipline/Right to Due Process/Representation, 2) provides that: “No faculty member will be disciplined without just cause.” Mr. Kotsaksis testified he was familiar with the Seven Steps of Just Cause and recalled during the grievance process, Lisa Lewison, WEA-Riverside UniServ Director, had provided a handout of the Seven Steps of Just Cause, and she had verbally walked the College through their obligations of just cause. Dr. Marcia Roi, President of AHE, testified she was trained in the Seven Steps of Just Cause by her UniServ Director, Ms. Lewison, and was present at all steps of the grievance process.
Ms. Roi further testified Mr. Kotsakis, Mr. Dastmozd, Ms. Golder, and Mr. Knight would have been present at various stages of the grievance process, and thus, all were aware of the College’s obligation to the Seven Steps of Just Cause, as articulated by Ms. Lewison, per the Collective Bargaining Agreement.
The College did not have just cause to impose a 108-day suspension for Mr. Craven. The College violated many of the Seven Steps of Just Cause. Judge Robert F. Oberstein in Waste Management of Tuscon, Arizona and UFCW, Local 99 FMCS 09112551718A , who reversed managements’ decision to terminate the grievant, advises:
“The question then becomes, have the parties defined just cause, and if so, how? In the absence of a definition within the CBA the arbitrator finds that without formal stipulation the parties have both framed their post hearing arguments and cited within their respective briefs the often quoted seven tests of just cause developed by arbitrator Daugherty (46 LA 359) either directly or indirectly as expounded upon by other arbitrators. Therefore, those same mutually seven tests will be our standard within this discussion to determine if the employer violated the requirements of the CBA.”
The College repeatedly acted with animus towards Mr. Craven. The College regularly ignored the expectations of due process as it relates to discipline of any employee. The College did not conduct a fair investigation. The College did not afford equal treatment toward Mr. Craven and was not even-handed with their expectations of him v. fellow faculty for union and College email usage. The College’s imposition of a penalty was excessive, and not reasonably related to a proven offense or Mr. Craven’s record.
Mr. Craven attended President Bob Knight’s “Open Public Dialogue” on the campus on October 15, 2007. According to Mr. Craven and Ms. Wheeler’s testimony, because the event was publicized as an “open public dialogue” individuals attended with the assumption it was safe and appropriate to ask questions of President Bob Knight. Mr. Craven testified he asked the President a question about an editorial in the Columbian newspaper, which referred to “hush money” the College paid in recent settlements. Mr. Craven asked the president how did he know if public monies had or had not been used as “hush money” to prevent going to trial where possible crimes might be discovered. Mr. Craven reported the President became “visibly angry” with him and his questioning. Ms. Wheeler testified Mr. Knight responded to Mr. Craven, stating “I am worried about your negative attitude and I think you have an anger problem.” Mr. Knight told Mr. Craven “…he was tired of Jim trying to harass people and he was not going to allow him to monopolize this open dialogue and if Jim wanted to communicate, it should be outside of the public forum.” Ms. Wheeler testified “President Knight was agitated and visibly upset” by Mr. Craven’s questions.
Mr. Craven testified he responded to the President, informing him he had sent emails to him on numerous occasions, but he never received a response. Ms. Wheeler testified the President responded “Jim, when I get an email from you I just hit delete.” Mr. Craven testified he responded to the President, reminding him “I am a Division Chair of multiple departments of the College, and I have the right and duty to speak, ask questions, and receive a response.” Mr. Craven was asked to recall how the President’s comment impacted him, and testified “The Presidents response was a summary censorship of my work and that I have nothing of value to say.”
Ms. Wheeler testified nearly 60-100 individuals attended to the forum, and the Presidents tone, body language, and demeanor was visibly different towards Mr. Craven as compared to others who asked questions at the dialogue. Ms. Wheeler, when asked to describe Mr. Knight’s behavior toward Mr. Craven relayed a story about her son who lives and works in Japan, and an incident in which her son, when being introduced in front of a large audience, forgot to bow to one of the individuals on the panel. Ms. Wheeler explained that her son’s boss approached him privately, after the assembly, and admonished him for the cultural gaff in forgetting to bow to one of the panelists. The boss explained to her son that in forgetting to bow he showed disrespect and embarrassed him, however, he waited to address this with him in private, as he did not want him to lose face. Ms. Wheeler relayed this story, as she believed Mr. Knight did not show equal respect to Mr. Craven, and made him “lose face” in the large audience.
Ms. Wheeler and Mr. Craven testified Mr. Craven’s vocal tone, body language, and demeanor were normal and appropriate throughout the dialogue.
WEA-Riverside Director Lynn Davidson and AHE President, Dr. Marcia Roi testified to a labor management meeting they attended with President Bob Knight and Vice President Rassoul Dastmozd on Friday, November 9, 2007. AHE President Roi testified she told President Knight there was a “…morale problem on the campus.” President Knight responded “There is not a morale problem; morale will improve when we get rid of Professor Craven.” This was never refuted by management in the hearing. Ms. Davidson testified she was “shocked” President Bob Knight would say something like this to union representatives, and based on her expertise was troubled because his statements showed the union “should expect animosity by the President and the College in future dealings” related to Mr. Craven.
[ADDENDUM JC: This testimony of Dr. Marcia Roi and Ms. Lynn Davidson, at the arbitration hearing subsequent to the ESD appeal hearing with ALJ Knutson, directly contradicts the sworn testimony of President Knight that he never made nor would make the statement “There is not a morale problem; morale will improve when we ‘get rid’ of Professor Craven” [is “when we ‘get rid of’ Professor Craven an example of really hostile, threatening, abusive speech and writing especially in the context of someone with known and serious medical disabilities?]
Ms. Davidson was referred to a letter from Mr. Kotsakis to Mr. Craven, and confirmed she had knowledge of this letter and the attachments, as she was the UniServ Director at the time representing Mr. Craven, and had been cc’d on all correspondence. Ms. Davidson testified Mr. Kotsaksi used the words “threatening, harassing, and abusive” over and over again to describe Mr. Craven and his alleged actions. Once again, it is critical to point out that this was never refuted by the College through testimony or evidence at the hearing. Ms. Davidson was questioned whether she was aware of the contents of the attachments, and she testified they were emails between Mr. Craven, Mr. Hamideh, and department members, sent because “Jim felt the Department Chair had been illegally taken from him and posed a financial hardship for him.”
Ms. Davidson was directed to the Collective Bargaining Agreement, and asked if she could speak to the intent of the agreement, and testified, “I helped bargain it, so I can speak to the intent.” Ms. Davidson was directed to Article III. Personnel, I. Divison Chairs, and was asked if there was any section of the language which gave the Dean or Management the authority to conduct Division Chair/Department Head Elections. Ms. Davidson testified “No.” Ms. Davidson was asked if she was aware of what the mandatory subjects of bargaining are in Washington State. Ms. Davidson testified “Wages, hours, and terms and conditions of employment.” Ms. Davidson was asked if anything in the attachments had to do with wages, hours, terms, and conditions of employment. Ms. Davidson testified “Yes, wages and hours of employment.” Ms. Davidson was asked why she was included on these emails between Mr. Craven, Mr. Hamideh, department members, and AHE President Dr. Marcia Roi. Ms. Davidson testified “I had instructed him (Mr. Craven) to cc me on anything that was a union issue. This was, and he included me. I got these because he (Mr. Craven) did not get Department Chair and the fiscal impact to him.” Ms. Davidson was asked if College had received a complaint from Mr. Hamideh regarding the February 6, February 8, and April 20, 2009 emails. Ms. Davidson testified they did not. She continued that the College did not receive a complaint that the February 6, 8, and April 20, 2009 emails were “threatening, harassing and abusive.” The only complaint received was from Mr. Hamideh, in reference to an April 20, 2009 email. In re-direct Ms. Davidson was asked if the College had made a request to bargain new language related to Divison Chair/Department Head elections while the term of the contract was closed. Ms. Davidson testified this was not the case.
Madame Arbitrator, the College, through its witnesses Mr. Hamideh and Mr. Kotsatkis, would have you believe that the string of emails between Mr. Craven, Mr. Hamideh, department members, the AHE President, and the WEA-Riverside UniServ Director were simply about a Palestinian cultural slur that was “threatening, harassing, and abusive “ aimed at Mr. Hamideh.
In reality, testimony provided by Ms. Davidson, Mr. Hamideh, and Mr. Craven ultimately prove the context and content of the emails were discussions stemming from an illegal Division Chair election, orchestrated by Mr. Kotsakis and contrary to the Collective Bargaining Agreement, which resulted in financial and professional loss to Mr. Craven. Mr. Craven testified he used a metaphor, which contain the word Palestinian, decrying an illegal election which left him financially harmed. Mr. Kotsakis confirmed in his testimony that it was he who encouraged the election of a new Division Chair while Mr. Craven was on approved medical leave.
On March 20, 2009, Julie Lemmond, Adjunct Professor, forwarded the March 20, 2009 union communication she received on the union email list to her manager, Mr. Kotsakis; the body of her email simply contained the message “fyi.” Ms. Golder testified Ms. Lemmond “…had issues with Professor Craven” and the College and Ms. Lemmond lost an Unfair Labor Practice the union had filed on Mr. Craven’s behalf based on the College and Ms. Lemmond’s refusal to provide documents that that were to be used for determining discipline. Mr. Kotsakis notified Mr. Craven the College had received a complaint his March 20, 2009 email was “threatening, harassing, and abusive.”
Arbitrator Judge Saundria Bordone, in AK Steel Coor, and USWA, Local 523 AAA 52 300 L 00571 09, found for the Union, taking into consideration:
“It is a well known fact that employers are prohibited from building on their cases after the fact to try and substantiate their decisions for disciplinary action…..It is also a well known fact that when the Union is seeking information as to why a member has received disciplinary action, the Employer is obligated to provide all of the relevant pertinent information to the Union in order to allow the Union to best represent the interest of its members.”
Madame Arbitrator, no complaint was ever received by the College regarding Professor Craven’s March 20, 2009 email. Mr. Kotsakis testified no complaint had been received, and that he received this union email as part of a forwarded email from Ms. Lemmond. Mr. Craven was never presented with a complaint by the College for his union email. Mr. Craven was never presented with any evidence that anyone viewed his union email as “threatening, harassing, and abusive.” Mr. Kotsakis coined this phrase, and used it over and over again, assigning it to Mr. Craven to prove guilt, despite no accusers, no evidence, and no violation on the part of Mr. Craven. Mr. Craven’s email was protected union communication on a union email list that was created by the College, explicitly for the union, according to the testimony of Phil Sheehan, Director of Technology.
Professor Gene Johnson is a faculty member of the Business and Technology Division, under the supervision of Dean Kotsakis. Mr. Johnson approached the union at the arbitration and asked if Mr. Kotsakis could be excused from the room when he gave his testimony, as he was apprehensive about being a witness, and feared retribution and retaliation from Mr. Kotsakis. Mr. Kotsakis stepped out, and Mr. Johnson, while on the record requested his statement regarding concerns with reprisal from the College be included with the record.
Mr. Johnson was asked if he had received the High Noon, April 27, 2009 email on the union list and if Mr. Craven had mentioned or discussed Adjunct Professor David Reed and oral sex. Mr. Johnson did receive and read the union email, and testified neither Mr. Reed nor oral sex was mentioned. When asked what he believed Mr. Craven’s union email was stating, Mr. Johnson testified Mr. Craven had been talking about what had happened in the past tense, in the early 1990’s and how “people were trying to save their jobs and do whatever they could to curry favor.”
Mr. Johnson was asked what was the purpose of the AHE union list, and testified “It is for internal communication for union members….The College should not be able to discipline employees for this. It is union busting.” Mr. Johnson affirmed the list was similar to an electronic union meeting, and testified:
“Yes, just like how e-learning works well for everyone to have their say. I didn’t know it (the union list) would be censored. It should send a chill up everyone’s spine. Union meetings are for union members to discuss, debate, and vote on whatever they want.”
Mr. Johnson was asked if he had received the P.S. Academic Freedom and Tenure email sent March 20, 2009. Mr. Johnson indicated he had, as AHE President, Dr. Marcia Roi and Kim Sullivan had sent it on the union list to all union members. Mr. Johnson testified Kim Sullivan was asking the union members to show up at the Board of Trustee’s meeting to show solidarity based on the recent tenure denials, particularly that of Christina Kopinski, a Journalism Professor, and Advisor to the student newspaper, The Independent. There had been a concern about the College attempting to “…squash free speech.” Mr. Johnson was asked if he had any knowledge of any faculty member being disciplined for speech, and testified:
“No one has ever been disciplined for anything they have said on this list or even the faculty list until now. This is supposed to be a place of free speech, we now have the Nazis here.”
Mr. Johnson was asked if he had any knowledge whether Mr. Craven had been disciplined, and testified: “yes, he was disciplined; he was suspended for two quarters for what he said on the union list. The Administration despises him and want him gone because he questions their authority,” and offered the example of “President Knight, Vice President Dastmozd, and Dean Kotsaki keep walking by the witness area, just to intimidate us.”
Mr. Smith sent an email to Mr. Craven on Wednesday, November 4, 2009 which stated “…but many faculty can attest, and classified as well, that the administration at Clark despises you and wishes you gone, and will use whatever pretense to make that happen.” When asked about his statement, Mr. Smith testified from his experience he has witnessed “…institutional prejudice against the man (Professor Craven)” sharing an example how horrified he was when “Jim was on his death bed and receiving discipline letters (from the College) while in the hospital” in intensive care suffering from a massive heart attack.”
Mr. Kotsakis sent a letter to Mr. Craven on October 25, 2007 informing him “Your behavior at the President’s Open Forum on Monday, October 15, 2007, was witnessed by many employees of Clark College, including myself. You displayed unprofessional behavior by not demonstrating respect for others and the President of Clark College…“Your behavior…created a hostile work environment” and continued to state that the College would be in contact with him to arrange a date, time and location for a meeting.
During cross examination Mr. Kotsakis was asked if he provided a copy of the referenced complaint to Mr. Craven, and he testified “he did not recall.” The union asked Mr. Kotsakis if there was a copy of the complaint in question, and to whom it was given. Mr. Kotsakis could not produce any copy of a complaint and was unresponsive in his testimony. Mr. Kotsakis was asked if he understood the Collective Bargaining Agreement, the provisions of due process, and what was required of him. Mr. Kotsakis testified he had held the investigation by asking himself questions about what he had witnessed at the Presidents Open Forum, and concluded Mr. Craven’s behavior was unprofessional. Mr. Kotsakis was asked who he talked to as a part of his investigation, when had he talked to them, and whether he had any documents to show to whom he had talked. Mr. Kotsakis became visibly angry with the line of questioning, was unresponsive, and did not produce any evidence to support his investigation related to the President’s Open Forum and Mr. Craven’s participation.
Mr. Kotsakis sent an email to Mr. Dastmozd and Ms. Golder on November 13, 2007, asking “I have a technical/procedural question. If I am the accuser as it relates to Jim’s behavior in the President’s Forum can I be the one that investigates this incident which could lead to discipline? It seems to me this could be an area that could be questioned? …..If I were in investigating someone’s else’s claim against Jim that seems appropriate.” Ms. Golder responded, “I’m not sure it is an investigation per se. It is a supervisor following up with an employee whose behavior you observed to be inappropriate.” Mr. Kotsakis responded, “I think we have to be squeaky clean here. Jim has already raised the question of how I can be the accuser, judge, and jury. My asking him questions about the meeting will more than likely lead to discipline in some form or another. Let’s not kid ourselves. We all know the behavior he exhibited was unacceptable.”
As of November 13, 2007, no meeting had occurred with Mr. Craven to inquire about his participation in the forum. No complaint(s) had been provided to Mr. Craven. The email exchange between Mr. Kotsakis, Mr. Dastmozd, and Ms. Golder, in advance of any meeting with Mr. Craven had already concluded his guilt, and massaged, in advance, how the College was going to get around its contractual due process obligations related to a fair investigation.
Mr. Smith testified Mr. Craven was known for using metaphors and was an expert in figurative language. Particularly, Mr. Smith, in his November 4, 2009 email to Mr. Craven, stated, “Your reference to Palestinians was not directed at Adnan. You did not mention his name, and you can point to similar metaphors in which you use the term “hang-around-the-fort” Indian to illustrate the same principle. Again, you have been found guilty without due process….These fundamentals of due process do not exist at Clark College.” When Mr. Smith was asked to comment on the purpose of his statement, he testified “Due process is not always followed when it comes to Jim.”
Mr. Craven sent an email to Ms. Lewison on November 16, 2009, sharing two printed versions of the College’s published class schedules. The first version showed Mr. Craven teaching Winter Quarter 2010, while the second version showed a correction, with Mr. Craven’s name removed from the schedule, and adjuncts replaced in the schedule in the sections originally intended as a part of Mr. Craven’s Winter 2010 teaching load. Mr. Craven and Ms. Lewison were not scheduled to meet with the College until Friday, November 20, 2009 as the first opportunity for Mr. Craven to respond to the Colleges allegation there was merit to impose a 108-day suspension without pay.
Ironically, Mr. Craven had foreshadowed the future events in his November 16, 2009 email, stating, “This shows the upcoming meeting to be a fraud and the result already a fait accompli – that is conspiracy per se.”
Mr. Craven testified to and shared in an email with Ms. Lewison a poignant vignette from Alice in Wonderland that captured, disturbingly well, the College’s actions and approach to due process and the investigation of the allegations made of Mr. Craven. Chapter 12. Alice’s Evidence:
In the meantime Alice has grown so much that she upsets the jury box when she gets up. She hastily tries to put them back in their places. She tells the King that she knows nothing about the stolen arts, which he considers very important. The White Rabbit has to correct him again.
Then the King reads from his notebook, stating that all persons more than a mile high must leave the court. Alice refuses to leave because she suspects that he made up this rule, and the King tells the jury to consider their verdict.
Then the White Rabbit brings in a letter, which serves as evidence. The letter contains a verse, written in someone else’s handwriting, which clears up nothing at all. However, the King thinks that it is very important but Alice corrects him and explains the verse proves nothing. Eventually the King asks the jury for the third time to consider a verdict, and now the Queen contradicts him and says that there should be a sentence first and a verdict afterwards.”
Alice is a fictitious character, yet the reader can find both empathy and humor in her predicament. Sadly, for Mr. Craven, there is no humor to be found in the lack of due process he was afforded, causing him to suffer significant financial and professional injury due to the Colleges flippant and cavalier managerial actions.
Ms. Stephson’s June 17, 2009 report and her appearance as a witness in the arbitration provided ample evidence that she has no credibility as a neutral investigator. Throughout questioning, Ms. Lewison directed Ms. Stephson page by page through her report, questioning the nuances of her word choice in describing and referring to Mr. Craven and identifying glaring information or evidence that was purposefully excluded or specifically elevated in the report. Ms. Stepson assigned loaded words and assumed worse intent when describing Mr. Craven such as, “He continues to maintain this and to complain that he has been hurt financially” and ‘Craven denied being intimidating and threatening, saying he was just “talking straight” and ‘it is clear that Craven had talked to them both about his grievances against Hamideh and the College and the email language in question’ and ‘given the fact that Craven has had a history of verbal attacks on others in the College and of defying the College administration.”
Ms. Stephson was asked if she had read the contract, testifying she had “…Only read parts of it.” Ms. Stephson was asked if she understood due process and was familiar with the Seven Steps of Just Cause; she testified she was familiar with these concepts. Following this line of questioning, Ms. Lewison asked Ms. Stephson why she gave weight to issues and “evidence” in her finding of fact that clearly had been violations of the Collective Bargaining Agreement, thus should be void in consideration of wrong doing or guilt of Mr. Craven related to the various allegations. Ms. Stephson did not understand the substance of the question, and was unresponsive in her answers.
Ms. Lewison further inquired as to why Ms. Stephson included information in her findings of fact, but did not name the witnesses used, but still relied on their testimony as fact. Ms. Stepson testified they did not want their name included in the report.
AHE President, Dr. Marcia Roi testified she was present at every investigative interview with Ms. Stephson involving an AHE member. Ms. Roi testified “in every meeting I asked what was the purpose of the meeting, and she (Ms. Stepshon) replied “It will be revealed.” Ms. Roi was asked to describe her understanding of Ms. Stephson in the investigative interviews, and testified “as a clinical therapist, I found her to be sarcastic” and dismissive with her statements that “It will become apparent to you.” Ms. Roi was asked if this response had any impact on her as AHE President and testified “Lynn and I looked at each other in disbelief…our feeling was that it violated Labor Law as the purpose to the meeting was not stated.” Ultimately, AHE President Roi testified “The investigation was conducted in a “gunny-sacking manner” and it was her opinion that it was a “fishing expedition and she (Ms. Stephson) was baiting folks and giving flippant answers.”
Mr. Johnson testified he was interviewed by Ms. Stephson, and was troubled from the very beginning, as “She wouldn’t tell me what the meeting was about.” When asked what questions Ms. Stephson asked of him, Mr. Johnson said “she had an agenda and was trying to put words in my mouth. I felt she was fishing and had preconceived ideas about Jim.”
Judge Robert F. Oberstein in Waste Management of Tuscon, Arizona and UFCW, Local 99 FMCS 09112551718A , cautioned:
“Ultimately, and in spite of all of the valiant and creative efforts by its very experienced and able counsel, it was still not enough to rehabilitate this sow’s ear of a so-called investigation into a silk purse. After all, and in their defense, they are only attorneys, not magicians. As a result the Employer’s investigation was everything but objective, impartial, and fair. The apparent bias, inaccuracies, omissions, and attitudinal influences which permeated the entire investigation noted above are crucial because the employer relied on Spillbury’s report to make the discharge decision. Since the report was tainted and materially inaccurate, the decision to discharge was fatally flawed. The discharge, or for that matter any other form of discipline based on that investigation cannot be for just cause.”
Ms. Stephson’s investigation was “fatally flawed.” In no way can the College use her “silk purse” of an investigative report as the basis to impose a 108-day (2-term) suspension without pay for Mr. Craven.
Arbitrator, Judge Martin E. Henner in Honolulu (HI), City and County of, Police Department and State of Hawaii Organization of Police Officers SHOPO Case No. 0-2007-003 (2009) reminds us:
“…it is well established that “due process as part of just cause requires that an employer conduct a fair investigation, so that when a decision is made involving discipline, the employee can be assured that the facts were fairly and properly gathered and considered.” Cooper City, 118 LA 842 (2003). Also see City of Atlantic Beach, Florida and Fraternal Order of Police, 121 LA 105 (2005); Broward County Sheriff’s Office, 112 LA 609 (Hoffman, 1999).
Phil Sheehan, Director of Computing Services, sent an email to the master list on October 11, 2010. The purpose of Mr. Sheehan’s email was to notify all faculty and staff about appropriate email usage and to cease all conversation on the master list related to the most-recent white supremacist activity that had occurred on campus.
Mr. Smith testified that after Mr. Sheehan’s notice, several faculty continued the debate on the master list, contrary to his directive. Mr. Smith sent an email to several faculty, after Mr. Sheehan’s notice, reminding them they could be disciplined for using the master email list, and that Mr. Craven had been disciplined for just such a violation. Mr. Smith testified to his knowledge “Jim is the only faculty member who has ever been disciplined for such use” and that “they will target certain people who are outspoken and a pain in their side. He points out what is unfair and hypocritical and thus has become their target. The College wants him gone.”
To date, the union has never been contacted by any other union member seeking representation related to discipline for email usage, other than Mr. Craven.
The College does not understand labor law or the Collective Bargaining Agreement. AHE President, Dr. Marcia Roi testified the Collective Bargaining Agreement
(Article II. Business, B. Association Rights) allows the union to use mail and College facilities to conduct union business. Ms. Roi testified College President Knight memorialized this right of the union, in another, unrelated union matter, in writing as recently as Spring 2010.
The College is clearly confused. Vice President Rassoul Dastmozd testified hypothetically he had the right to “discipline a union member for comments he/she made at a union meeting which occurred in a campus meeting room the union had leased from the College for union business.” Mr. Dastmozd further testified he had this right whether he was or was not present at the meeting, and had simply heard of the union speech.
The College does not understand it cannot use the internal union list serve, which it created explicitly for union use, and gave repeated and explicit notice to faculty that this list was meant specifically and only for union use, to discipline faculty for union protected speech. At some point giving the union a list to communicate with members on becomes a “virtual union meeting.” Faculty testified votes were taken on the union email system, used for debate, etc. While the College “owns” the email system, they granted a “lease” of part of that system for use by the Association. There was some expectation of Association privacy on the use of that union email. Professor Craven cannot be singled out and disciplined for his communications on a union email list, contrary to the Collective Bargaining Agreement.
SEVERITY OF PENALTY
The College entered in to the record multiple exhibits which chronicled previous matters related to Mr. Craven. The union objected to their admission, as we believed the exhibits in and of them self proved nothing regarding whether the College had just cause to impose a 108-day (2-term) suspension without pay.
Madame Arbitrator, we ask you to consider an employee’s record of previous offenses must not be used to discover whether he was guilty of the immediate or latest one. Arbitrator Joseph Daly in AXIS MN, Inc. and SEIU, Healthcare Minnesota, FMCS 61154-3 (2010) reminds us:
“Without notable exception, arbitrators emphasize the word “just” in the term [just cause] compelling employers to tailor discipline to the individual and not only to the misconduct. They see ‘just cause’ as job security language that requires penalties to be corrective rather than punitive.”
The College tacitly argued Mr. Craven’s record was proof he was guilty of the new allegations. The only proper use of Mr. Craven’s record is to help determine the severity of discipline, when, and only if he has properly been found guilty of the immediate offense(s). Mr. Craven, with over eighteen years of service to students, and Clark College, undoubtedly has established a reputation as a top scholar in the field of economics, is popular and highly regarded with students, and holds an esteemed record of volunteer service on campus and the community.
We were gravely troubled by the College’s punitive and insensitive pronouncement they would be taking away Mr. Craven’s benefits through the duration of his 108-day suspension. Such harshness was particularly troubling considering Mr. Craven, at the date of receipt of this notice, had not yet had the due process afforded by the College to respond to the allegations in advance of their decision. The College was well aware Mr. Craven suffers from a heart condition, and had, within the last year, been on medical leave due to a near-death hospitalization.
A 108-day suspension without pay and loss of medical benefits was never meant to remediate any behaviors of concern allegedly exhibited by Mr. Craven, rather it was meant to harshly punish, financially crush, and professionally ruin him.
Minimally, if you conclude the College did have just cause to impose discipline, we ask you to consider Elkouri & Elkouri, How Arbitration Works 6th ed. 960 (BNA 2003) and their advisement that most arbitrators will change a penalty if it is clearly out of line with generally accepted standards of discipline.
When just cause for disciplinary action is found lacking, a customary remedy is a “make whole” order restoring to the employee those wages and benefits that were lost by virtue of unjust action. A “make whole” order is appropriate in this case.
The Association has proved that the College violated the Agreement when it imposed a 108-day (2-term) suspension without pay to Professor without just cause. The Association requests the following relief:
1. Rescind discipline.
2. Retroactive restoration of any/all compensation withheld from the grievant.
3. Destroy all documents, both electronic and hard copy, related to the discipline.
4. Any and all remedies deemed appropriate by you, Madame Arbitrator.
Respectfully submitted this 14th day of January, 2011 on behalf of Grievant, James Craven, by the undersigned, designated representative in this matter.