By Chris Casillas and Sarah Derry
In Kitsap County, PERC overturned Examiner Ramerman’s decision that Kitsap County engaged in bad faith bargaining. The Commission considered two separate issues: (1) whether to consider Kitsap County’s brief even though it was submitted late; and (2) whether Kitsap County breached its duty to bargain in good faith with the Juvenile Detention Officers’ Guild. On the first issue, the Commission refused to consider the employer’s late brief, emphasizing that its procedural rules are to be followed in every case. PERC characterized the late-filing as acting “in complete disregard of our procedural rules” and that it had “previously cautioned the employer that it disregards the Commission’s rules at its own peril.”
Turning to the second issue, the Guild’s had filed an unfair labor practice alleging Kitsap County negotiated in bad faith by failing to send a representative with proper authority. The parties were bargaining an initial CBA; the Guild was represented by its President and Vice President and by attorney Christopher Casillas of Cline & Casillas, while Kitsap County was represented by its Labor Relations Manager, its Juvenile Court Director of Services, and its Juvenile Detention Division Manager. Throughout numerous negotiation meetings, Kitsap County stated it needed to consult with individuals who were not present before answering the Guild’s questions. The parties met on ten separate occasions spread over many months. Examiner Ramerman agreed with the Guild, concluding Kitsap County “effectively hamstrung” negotiations by failing to send individuals with more knowledge and authority. But PERC disagreed and dismissed the Guild’s ULP.
The Commission held that “[t]he record does not demonstrate a lack of authority to bargain the grievance procedure. It does demonstrate that the employer set firm parameters and explained its reasoning.” Although the employer sometime took months to respond to the Guild’s questions and to provide its position on various issues, PERC did not find this to be evidence of bad faith or of a lack of authority. PERC reasoned it is normal for parties to take time to review proposals, and that the length of time between meetings explained the time between responses. The Commission emphasized:
[w]hile the employer’s rationale may have been delivered months [later], …the rationale provided answered the union’s questions.
The Commission also ascribed the delays to the lack of trust between the parties because of their new relationship, rather than to bad faith on the employer’s part:
While this was a long standing bargaining unit, the change of representation created a new dynamic that altered the parties’ relationship. This is not a situation in which the parties had years of experience working together and trust in each other and in the process. From the record we can deduce that there was a lack of trust and, as bargaining progressed, the relationship became strained.
This case reminds us of the heavy burden (typically placed on unions) in proving bad faith bargaining charges under PERC’s totality of the circumstances standard. Despite the fact that Kitsap County’s behavior, on repeated occasions, frustrated and delayed the bargaining process, the Commission determined it still did not rise to the level of a ULP. Nevertheless, the decision is now on appeal to Thurston County Superior Court because, among other reasons, the hearing examiner, who actually received all the evidence in the case, believed the County’s behavior crossed the line of good faith bargaining. The Commission, despite its own precedent to the contrary, afforded the Examiner’s credibility determinations almost no credence and substituted its stale review of the record for that of the Examiner. Such an approach will likely be closely scrutinized by the courts.
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