By Jim Cline
Kitsap County has once again been found guilty of refusing to abide by bargaining law requirements and its controversial prosecutor, Jacquelyn Aufderheide, was identified by the hearing examiner for being untruthful to an arbitrator. In a recent decision, Hearing Examiner Kristi Aravena found the County’s yearlong refusal to produce records to the Guild was an unlawful refusal to bargain. She also cited the County for refusing to provide requested wage records to the Guild for a pending interest arbitration case. Aravena found that Aufderheide had falsely claimed she was in the process of producing the wage records when, in fact, she was not.
The case involved two separate requests. In January of 2012, the Guild sought records regarding deputy overtime. The Guild claimed the County was “adjusting” deputies’ schedules and not properly paying them overtime, and it wanted records on the scope and context of these changes. The County initially indicated it would take 11 months to identify the records. They slowly began releasing records in the Spring of 2012. After some further discussion with the parties, the County indicated it would continue searching for records and had identified some additional records that were responsive. By October 2012, with no further communication with the Guild, and a pending interest arbitration which involved an overtime language proposal, the Guild filed a ULP.
Months still followed that complaint without a word from the County on any action. Finally, in January 2013, the County wrote an email to the Guild President indicating it had not responded to documents (even though it did) and then sent the email to the wrong email address! At the hearing, the County witnesses attempted to claim that the Guild had withdrawn the request, something the Examiner found not credible:
On January 7, 2013, [Lieutenant] Collings sent [Guild President Jay] Kent an e-mail closing the union’s information request related to adjusted time records.
She said the employer provided documents on May 22, 2012 and after searching further, had not found any other responsive documents. Collings did not mention the 700-800 e-mails the employer had found as a result of its keyword search.
Collings noted in her e-mail, that Kent had modified his request by not asking for documents held by, or generated by union members and that he was not interested in an e-mail search due to the number of e-mails that might be generated from employees including union members. This directly contradicts the memo to file Collings wrote on May 15, 2012, where she noted that Kent was not concerned about documents the deputies had, but was interested in what sergeants and administration had.
The County claimed that the Guild had withdrawn its request but Examiner Aravena found it strange that the request was not ever documented in writing:
Collings testified she wrote that portion of the e-mail based on a conversation she had with [Clerk Karen] Brezler, where Brezler said that Kent told her he did not want any e-mails. Brezler testified that Kent told her he was not interested in looking at the e-mails anymore. Brezler did not document this communication with Kent, even though it is the department’s practice to do so. Brezler could not think of another instance in which she had a verbal modification of an information request but did not document the conversation in writing.
Examiner Aravena also found the attempt to cancel the request to be strange:
Kent testified that at no time did he tell the employer he was not interested in e-mails. Ending the e-mail search would not make sense for the union because some of the most pertinent information related to the adjusted time issue might be found in the e-mails. I credit Kent’s testimony on this matter. Not only did Collings’ January 7, 2013 e-mail contradict earlier communication from the employer, it was sent to an incorrect e-mail address for Kent.
The employer had previously sent multiple communications to Kent’s correct e-mail address, but somehow sent this very critical e-mail to an incorrect e-mail address.
The second was a separate information request concerning the Guild’s extensive requests for the October 2012 interest arbitration. Part of the complaint concerned delays in the County’s production of health insurance and budget information. The examiner found that, despite delays in producing the records, the County’s efforts were sufficiently in “good faith” to not constitute a ULP. But she did cite the County for refusing to produce its Wage charts before the arbitration hearing.
The County claimed the charts were “privileged work product” and that they could keep the Guild from seeing their wage analysis until it was presented at the arbitration hearing. Examiner Aravena explained that the Duty to supply information in arbitration compels the parties to exchange available wage information:
I reject the idea that sharing wage and compensation charts and graphs would reveal the strategy of the employer. Interest arbitration is not an adversarial hearing, rather a production of information on various issues in dispute. Each side has the opportunity to present their position on each issue and show data to backup why they feel their position is warranted. That data should not be anything either side has not seen before. Each side should be sharing such information in mediation before impasse is declared. It is only through persuasive data that parties convince one another that their position has merit. If information is not exchanged, settlement is less likely to occur. One party’s data should not be a surprise to the other party in an interest arbitration hearing. This information should willingly be shared throughout the collective bargaining process.
The Examiner also cited the County and its DPA Auderheide for misleading the arbitrator about the status of the request and being untruthful about their intention to turn over the records:
The employer never intended to exchange wage and compensation exhibits prior to the hearing. Although they gave the impression they were willing to discuss a date for mutual exchange on their conference call with Lankford, Boe testified the employer would not exchange exhibits until they were completed and the exhibits were not going to be completed until the day of the hearing. Jacquelyn Aufderheide, Chief Civil Deputy Prosecuting Attorney, wrote a letter to Lankford, summarizing the employer’s understanding of the status of the information request.
Aufderheide states in the letter that the employer was willing to agree on a date to exchange exhibits prior to the arbitration hearing on the condition that the exchange was mutual. There was, however, no intent from the employer to do this.
Also noteworthy about this decision is the lack of any attorney fee award. The Guild aggressively pursued payments of its fees, asserting that this case met the “extraordinary” ULP standard for awarding fees. The Guild noted the County’s multiple recent violations, in which both the County and Aufderheide had been cited for serious rule violations. It also cited the serious nature of this ULP case, involved an over yearlong refusal to supply record and misleading and untruthful statements made by multiple county actors as to their willingness to produce records. But the Examiner declined the Fee request and discounted the County’s misconduct as mostly “administrative errors:”
While the union points to a recent pattern of administrative errors, there is no evidence of repeated defiance by the employer to produce requested records that would justify an extraordinary remedy of attorney fees. Because a standard remedy is sufficient to remedy the employer’s unfair labor practice violations and because there is no pattern of conduct showing the employer’s patent disregard of its good faith bargaining obligation, no such extraordinary remedy of attorney fees is required to effectuate this order.
The County has now appealed this decision to the Commission, apparently insisting that it did nothing wrong by withholding records for over a year and providing untruthful statements about its records production efforts. The Guild then cross-appealed on the Attorney Fee issue and will argue that the continued misconduct of Kitsap County and its Prosecutor’s Office can only be remedied fully with a Fee order. It is correct that attorney fee awards are not standard and that PERC issues them sparingly, but it is our belief that a large number of other hearing examiners, and perhaps the Commission as well, would have ordered fees in this situation.