By Jim Cline
In another setback for Kitsap County, the Public Employment Relations Commission upheld a previous ruling that a Kitsap County Deputy prosecutor unlawfully undermined an agreement that had been reached between the Kitsap Dispatchers Guild and the County. InKitsap County, Decision 11675-A (PECB 2013), the Commission held that it was a breach of the County’s duty to bargain “in good faith” when it refused to ratify an agreement that it had already informed the Guild was agreeable to the County commissioners.
The Commission started off its decision by striking the last 11 pages of the County’s brief, filed in violation of the Commission’s 25 page brief limit. The Commission rejected the county prosecutor’s defense that she was ignorant of PERC’s rules and warned:
“A party that disregards the Commission’s rules does so at its own peril.”
On the underlying ULP, the Commission noted that the parties had reached a tentative agreement. The County Deputy prosecutor later disagreed with compensatory time language the county negotiator had arrived at, and when faced with the Guild’s insistence that a deal was a deal, the prosecutor advised the County commissioners to vote down the tentative agreement.
The hearing examiner, as described in our previous blog on this case, found that Deputy prosecutor Jacquelyn Aufderheide had “torpedoed” the agreement. The County argued that the agreement was always subject to final ratification by the County. PERC concluded that there was a breach of the duty to bargain in good faith and that the County’s negotiator had already presented the disputed compensatory time language to the commissioners and they had informally approved it.
PERC has repeatedly upheld the right of both parties — union and management — to submit their tentative agreements for ratification. But in this case, despite the right to subject the agreement to ratification, the County breached the duty to bargain by refusing to ratify because it had already expressly that its County commissioners had informally approved the language. In fact, as the hearing examiner pointed out, the compensatory time language the Deputy prosecutor sought to “torpedo” was actually proposed by the County itself as a counterproposal to a more far-reaching Guild proposal. Therefore, the “breach” involved the County reneging on an offer it made itself to get the Guild to compromise on the language.
PERC also rejected the County’s claim that the prosecutor could jump into the middle of the process by insisting on reviewing the tentative agreement after it had been reached and before it was submitted to the County Commissioners. PERC noted the obligation of the employer was to send negotiators to the table with authority and that the Deputy prosecutor’s intervention after the fact undermined that authority. Citing its previous 2011 decision concerning the ratification process in Mason County, the PERC Commissioners explained:
When the employer’s negotiator represents to the union that he or she has full authority to enter into tentative agreements and represents that ratification will be a formality, the union may reasonably expect that the negotiated agreement will result in a complete written and signed agreement.
The Commission further explained:
During the course of bargaining, a negotiator should communicate any areas of agreement that they foresee being problematic during ratification. When being briefed about the status of negotiations, the employer’s governing body should identify any areas it sees as problematic with the agreement. Those problem areas must then be promptly addressed in negotiations. The employer’s negotiators did not communicate that they foresaw any complications in the ratification of the tentative agreement, including Article 26.F.
The Commission did not buy the County Prosecutor’s argument that her right to approve the contract “as to form” allowed her to veto what she didn’t’ like:
When rejecting the tentative agreement, the Board of County Commissioners relied on [Deputy Prosecutor] Aufderheide’s recommendation not to approve the tentative agreement “as to form.” “Approval as to form means approval of the structure of something, as opposed to its substance.” Aufderheide objected to the tentative agreement on Article 26.F on the basis of her legal research. Her objection went to the substance of the tentative agreement, not just to the form.
The Commission provided guidance to parties in the future in such circumstances:
While the employer clearly communicated to the union that any tentative agreements were subject to ratification by the employer’s governing body, the governing body must remain apprised of the status of negotiations and identify proposals or tentative agreements that are problematic when the problem arises. The employer had an obligation to direct its negotiators to alter proposals during the negotiations and not wait until the ratification process to identify significant roadblocks to the agreement.
