By Chris Casillas and Jordan L. Jones
In Kitsap County, PERC Examiner Dianne Ramerman held that the Employer “failed to bargain in good faith and committed a ULP in violation of RCW 41.56.140(4) and derivatively interfered with employee rights in violation of RCW 41.56.140(1).” Examiner Ramerman found that Kitsap County’s “representatives at the table [with the Kitsap County Juvenile Detention Officers’ Guild] did not have sufficient authority to engage in meaningful bargaining.” Specifically, Examiner Ramerman found that Kitsap County’s representatives at the table were:
[1] not adequately informed, [2] could not enter [Tentative Agreements] . . . without consulting with those not at the bargaining table, [3] could not adequately explain the [E]mployer’s proposals or positions, and [4] unilaterally terminated a bargaining session.
In this case, the parties were bargaining an initial CBA. Cline & Casillas’ attorney Christopher Casillas represented the Guild along with its President and Vice President. For Kitsap County, its Labor Relations Manager represented the Employer for wage-related matters and KCSC Juvenile Court Director of Services and KCSC Juvenile Detention Division Manager, represented the Employer for non-wage-related matters. When the Guild attempted to bargain on multiple days over issues such as grievance procedures, overtime, and the language of a nondiscrimination clause, Kitsap County’s representatives would repeatedly state that they would have to get back to the Guild at another time. Kitsap County would tell the Guild that they needed to discuss the matter further with their legal counsel Chief Civil Deputy Prosecuting Attorney Jacquelyn M. Aufderheide and/or others not at the table. Thereafter, Kitsap County would attempt to move to other issues and in one instance, even unilaterally terminated a bargaining session.
The Guild subsequently filed a ULP alleging that Kitsap County was refusing to bargain by failing to send representatives to the table with sufficient authority to engage in meaningful bargaining. In response, Kitsap County argued that the Guild was demanding that it immediately respond to the Guild’s legal contentions without the benefit of legal counsel when the Employer indicated that they would like to consult with their attorney.
Examiner Ramerman noted that “[i]t was . . . not a defense that the [Guild’s] . . . questions were of a legal nature. Like many public employers, . . .[Kitsap County] did not designate or assign to its team a licensed attorney, nor was it required to do so.” Examiner Ramerman further stated that:
Good faith bargaining includes a duty to engage in full and frank discussion of disputed issues, and to explore possible alternatives, if any, that may be mutually acceptable . . . . The parties must vest their negotiations with sufficient capacity and authority to carry on meaningful bargaining. It is an indication of bad faith if the words and actions of a party show that it is merely “going through the motions” of bargaining, also called “surface bargaining;” among them, “fail[ing] to designate an agent with sufficient bargaining authority.” A negotiating team must have authority to make proposals and enter tentative agreements, and the other party has a right to rely on that authority.
Examiner Ramerman held that in bargaining with the Guild, the “Employer representatives at the table did not have sufficient authority to engage in meaningful bargaining” and that this under a totality of the circumstances constituted ULP violations.
It appears that through its action of relying on the opinion and recommendation of the [E]mployer’s legal counsel, the [E]mployer limited the authority of its negotiators at the bargaining table with regard to the issues of grievance procedures and the duty to meet at reasonable times. The [E]mployer team at the table also was not sufficiently informed as to the issue of overtime in the county, nor was it able to reach agreement on the issue of nondiscrimination without consulting with others not at the table.
Examiner Ramerman found that by Kitsap County’s representatives not having sufficient authority to meaningfully bargain prior to reaching a tentative agreement on outstanding issues, the Employer “effectively hamstrung” its representatives at the table.
Readers should be aware that this case is only the latest in a series of decisions involving Kitsap County and findings of bad faith bargaining. The contours of bad faith bargaining have always been difficult to define, in part, because the statutory requirement is only that the parties engage in “good faith bargaining,” which is itself a malleable concept. This recent collection of decisions involving Kitsap County, however, have permitted PERC to more fully elaborate on specific types of actions or positions that cross the line into bad faith bargaining. Please also see our earlier blog articles involving other unions from Kitsap County and bad faith bargaining findings, which can be found at:
and https://www.washingtonlaborandemploymentblog.com/2013/10/23/591/.
