By Therese Norton
In Clallam CountyPERC Examiner Emily K. Whitney found that the Washington State Council of County and City Employees AFSCME Locals (unions) did not breach their obligation to bargain in good faith with the employer Clallam County. The employer alleged that the unions refused to reform a mutual mistake to memorandums of agreements (MOAs), excluded the employer’s bargaining representative from the bargaining process and refused to provide relevant information. Clallam County, Decisions 11829 and 11830 (PECB, 2013).
Examiner Whitney concluded that for there to be a mutual or shared mistake in forming an agreement, the County had to prove that the signed agreement did not reflect what both of the parties intended the agreement to reflect. If there was a mutual mistake, an examiner could reform or correct the agreement to reflect what the parties’ intended that the real agreement state.
The alleged mistake at issue in Clallam County was whether a term of the collective bargaining agreement applied for one, or two years. The parties had agreed to reopen the labor contract to avoid layoffs, but came to a different understanding as to the extent of the concessions negotiated. The employer claimed there were mutual mistakes between the parties when the commission ratified and signed an MOA that erroneously provided for the 2012 COLA concession during 2012, only because it had intended for the concessions to continue into 2013. Examiner Whitney concluded that the MOA reflected the parties’ intent and were ratified by both the unions and the employer. As a result, AFSCME had no duty to revisit the agreement.
The County also alleged that the union had bypassed its labor negotiator by going directly to a Commissioner. However, the Commissioner had in reality been a member of the bargaining team, speaking on behalf of the County, known by the County and without objection from the County. Furthermore, the Examiner found that the union did not bypass the County’s bargaining representative when the union representative copied the County’s bargaining representative on a letter that was addressed to the Commissioner.
Lastly, the Examiner concluded that the union did not improperly reply to the County’s request for information because the union had a practice of communicating directly with the Commissioner. The Examiner explained that the Commissioner “knew how to assess and process the impact of the union’s response to the employer’s information request,” by definition, the Commissioner is the employer, and, when the union representative contacted the Commissioner, the Commissioner did not advise her that she should not communicate directly with him.
