By Jim Cline
Finding that controversial, Kitsap County Deputy Prosecutor Jacquelyn Aufderheide violated PERC requirements including an after-the-fact “torpedoing” of a tentative agreement reached between the Kitsap County labor negotiator and the Dispatchers’ Guild, in a recently released Kitsap County Decision 11675, PERC Hearing Examiner Guy Coss cited Aufderheide with a ULP and other rule violations.
Aufderheide is currently in the center of a number of pending disputes between Kitsap County and its labor organizations. The dispute in this case, arose after the County refused to ratify an agreement the parties had tentatively agreed to after Aufderheide insisted that there be a change in the parties’ compensatory time language and persuaded the County Commissioners to withdraw their previous informal approval of the agreement. Noting that the County never called its labor negotiator as a witness in the ULP hearing, Examiner Coss found the County Commissioner’s claims that they had been previously unaware of the late disputed comp time clause, not to be credible.
The difficulties for the County started at the hearing when, what normally should have been their primary witness — the County’s labor negotiator — was entirely absent. These difficulties continued into the post-hearing briefing. Ignoring the PERC rule that, absent specific permission, post-hearing briefs be limited to 25 pages, prosecutor Aufderheide filed a 35 page brief:
Prior to filing its brief, the Employer did not seek advance permission from the Examiner, as required by WAC 391-45-290(2), either orally at the end of the hearing, or by written motion, to file an overlength brief. The Employer only sought permission to file an over length brief after the Union objected to the Employer’s brief.
After the Guild attorney complained that Aufderheide had violated the briefing limit and asked that her brief be stricken, Aufderheide dismissively addressed the page limit requirement, and suggested that the only option was to allow the 35 page brief and that the Guild attorney be allowed to retract his brief and re-file a longer one:
The Employer responded to the Union’s motion to strike and, for the first time, filed a motion requesting acceptance of its already-filed, over length brief. The Employer’s Chief Civil Deputy Prosecuting Attorney declared that she had not reviewed the Commission’s page length rules but had presumed “that filing a 35-page closing brief was allowable” because she was “familiar with the Rules for Superior Court, which do not contain page limits for briefs” and with “the Rules of Appellate Procedure, which allow up to 50 pages for an opening brief and 25 pages for a reply.”
The Hearing Examiner rejected Deputy Prosecutor Aufderheide’s defense that she should be allowed to violate the rule because she was ignorant of PERC rules:
The Employer’s assertion of “unintentional oversight” in failing to review the Commission’s rules and instead relying on presumptions based on understandings of the rules in various other forums is also rejected. Accordingly, the Union’s motion to strike the Employer’s closing brief is granted in part. Pages 26 to 35 of the Employer’s closing brief are stricken from the record and shall not be considered in this decision.
The remedy is noteworthy because Aufderheide’s 35 page brief includes a recitation of the “facts” through page 28 and therefore, the Examiner was striking almost the entirety of the County’s actual argument. Apparently, Aufderheide believed the facts were more persuasive than the law, but in this case, her argument on the law, apparently, was never considered by the hearing examiner.
The underlying dispute concerns the County attempting to retract an agreement its labor negotiator and the Guild’s legal counsel had reached covering compensatory time. At issue in the compensatory time clause, was the extent to which the parties’ CBA would incorporate the Department of Labor requirement that compensatory time be allowed unless it would cause an undue hardship. With some modification, the parties wrote the DOL requirement into the labor agreement. Aufderheide later complained about the agreed clause, arguing that the Ninth Circuit had disallowed the DOL opinion and attempted to persuade the County commissioners not to ratify the agreement:
On June 7, 2011, Conill e-mailed Casillas advising that, for the first time, there was an issue with the language of Article 26F that had now been tentatively agreed to and unaltered for 15 months and that had been included in numerous proposals made by the Employer, including a last, best and final offer that the Employer said it would unilaterally implement. Conill’s e-mail advised that Chief Civil Deputy Prosecuting Attorney Jacquelyn Aufderheide had reviewed a draft of the contract as part of the Employer’s contract review process and decided that the tentatively agreed to Article 26F language “needs to be stricken as it is not consistent with current law.” Importantly, Conill stated that he “could not recommend ratification to the BOCC [Board of County Commissioners] until the 26.F language provision is resolved somehow.”
The County’s argument was that the Guild attorney, Christopher Casillas had somehow “taken advantage” of the County’s bargaining team’s lack of legal knowledge by inserting the DOL standard into the tentative agreement. Coss concluded that the applicable rules and precedent on compensatory time were subject to different interpretations and that Casillas had simply “diligently advocated” for his clients:
Finally, the Employer does not assert that the Chief Civil Deputy Prosecuting Attorney’s late entry into the good faith bargaining process was necessitated by the negotiating team’s lack of authority to bargain. Instead, the Employer asserts that it was its negotiating team’s lack of legal knowledge and labor negotiations experience relative to the Union attorney’s legal knowledge and experience that necessitated her late entry into the process. In its brief, the Employer points out that Conill, Kirton, and Jameson-Owens had limited, or no, labor contract bargaining experience. The Employer asserts multiple times in its brief that the Union attorney somehow took advantage of the Employer’s team by “mistakenly, carelessly, or knowingly fail[ing] to inform the Employer” of the “crucial fact” that, according to the Employer, the Ninth Circuit Court of Appeals had rejected the DOL Opinion Letter in Mortensen v. County of Sacramento, 368 F.3d 1082 (2004). In doing so, the Employer alleges that Casillas “knowingly withheld information crucial to the bargaining process.” Kitsap County Commissioner Josh Brown testified that Conill and Kirton “thought the law said one thing, they didn’t realize that the courts had decided otherwise, they’re not attorneys. They certainly were at the negotiating table with individuals who were attorneys, probably knew that there had been a change, but they didn’t. And I don’t blame them for that.” To the extent that the Employer appears to be attempting to use their negotiating team’s lack of legal education or knowledge as a defense to this unfair labor practice claim, it is rejected. What the Enion and the Employer disagreed on concerning the DOL Opinion Letter, concerned the interpretation of a court’s legal opinion, not a “crucial fact”. Legal opinions are capable of being analyzed and interpreted and that is what the Union attorney did: he presented a legal position/opinion based on legal research done on behalf, and in the interest of diligently advocating for the interests of his client.
Coss rejected the Employer’s argument that Casillas was aware of the differing Ninth Circuit opinion (Mortensen v. Sacramento County), and that he had a duty to disclose that different case law to the County:
The Employer claims in its brief that “the Guild’s attorney testified that he was aware of the Ninth Circuit’s decision in Mortenson, but he did not inform Mr. Kirton about it or advise Mr. Kirton to consult with the prosecutor’s office.” The Employer cites no statute, rule, code or case law, Commission or otherwise, supporting its assertion that Casillas, as the legal representative for the Union, had any duty to provide the Employer’s negotiating team with legal counsel, legal research, statutory/case analysis, or to recommend that the Employer’s chosen labor relations professionals were in need of, or should consult with, legal counsel. The Union attorney was presented with an Employer assigned negotiating team that he was safe to assume had such knowledge and/or access to legal counsel. The Employer’s negotiators were free to believe the Union attorney’s legal opinions and/or interpretations on the subject or to do their own research or seek their own counsel. They did not. Conill did not testify so there is no evidence as to what he, as the Employer’s Labor Relations Manager and principal negotiator for this labor contract, understood or believed.
Aufderheide’s ULP was committed when, having been aware of the language for a lengthy period of time, the County tried to pull the rug out under the agreement and attempted to persuade the County commissioners to renege on the tentative agreement. Examiner Coss noted that the language the County was now objecting to, was actually a counterproposal that the County had presented on the issue in an attempt to resolve it:
What is reasonable to believe is the Union viewed all of the Employer’s clear words, writings, actions and conduct as indicating that approval of the tentatively agreed to language, which had remained unchanged for 17 months, was simply a formality because it had already been reviewed and/or approved by the ratifying body. These beliefs were reasonably inferred due to the Employer’s own policy directive concerning the negotiation of labor agreements, the very lengthy amount of time the parties had a tentative agreement on the language in Article 26F, the repeated inclusion in Employer-drafted summaries of the status of negotiations and the repeated inclusion of the language in the Employer’s own contract proposals, including the announcement of impasse and the issuance of an Employer last, best and final offer. Adding further support to the reasonableness of the Union’s belief that the tentative agreement’s approval was simply a formality, is the fact that the tentatively agreed to language was the result of give and take, good faith bargaining between the parties: the Employer agreed that the Union’s proposed language would be acceptable if the Union agreed to the Employer’s counter-proposal to add the phrase “in and of itself” to the Union’s proposed language. The Union accepted the Employer’s counter-proposal to form the parties’ tentative agreement.
Examiner Coss concluded that by inserting herself into the bargaining process to derail an agreement already reached, Aufderheide committed a ULP:
Chief Civil Deputy Prosecuting Attorney Aufderheide, who was not present during negotiations, spoke against the tentative agreement which led the Board of County Commissioners to reject the tentative agreement. Like the superintendent in Shoreline School District, Aufderheide recommended rejection of the proposal at the end of a lengthy bargaining process even though she had not been a designated and/or participating member of the Employer’s negotiating team. When she “recommended that the [Board of County Commissioners] not ratify the contract, [s]he ‘torpedoed’ an agreement made by [the Employer’s] own bargaining team, and the effect of that recommendation clearly prejudiced the Union . . . and under these particular facts, [s]he was not permitted to recommend rejection of the [tentative agreement].”
PERC caselaw requires that parties come to the bargaining table with negotiators with the authority to enter tentative agreements. Although there is an understanding that tentative agreements are subject to formal ratification, PERC has found Employers to commit ULPs when they provide tacit support to proposals by allowing them to go forward with their knowledge and then later changing their minds and backing out of those proposals. That is what happened in this case. A Deputy Prosecutor who was in no way directly involved in the bargaining process, elected to insert herself into an agreement that the parties had already reached. While parties are free to consult their attorneys during the bargaining process, providing such attorneys rights to veto agreements after-the-fact and away from the bargaining table is, as this hearing examiner found, an Unfair Labor Practice.