CASE NO. 96-462-ULP

ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
(907) 269-4895
Fax (907) 269-4898

CASE NO. 96-462-ULP

DECISION AND ORDER NO. 217

Digest: An employee who was not rehired after her temporary position ended during a union organizational campaign did not prove any causal relationship to her exercise of protected rights.

DECISION

Statement of the Case

Sharon Lee Shields filed this unfair labor practice charge under AS 23.40.110(a)(1) and (3) on November 3, 1995, against the City of Unalaska, Department of Parks, Culture and Recreation. The Alaska Labor Relations Agency investigated the charge and on May 24, 1996, found probable cause to support the charge. The notice of accusation was issued on May 24, 1996. On June 3, 1996, the City filed its notice of defense denying the charge. The case was heard on November 6, 1996, before a panel of the Alaska Labor Relations Agency. The record closed upon the receipt of written closing statements on November 12, 1996.

Panel: Board members Blair E. Schad, James W. Elliott, and Karen J. Mahurin.

Appearances: Robert B. Mason, Mason & Griffin, for complainant Sharon Lee Shields; Kimberly K. Geariety, Owens & Turner, P.C., for respondent City of Unalaska.

Procedure in this case is governed by the Administrative Procedure Act, AS 44.62.330 -- 44.62.630, AS 23.40.130, and 8 AAC 97.340. Hearing examiner Jan Hart DeYoung presided.

Issues

I. Did the City of Unalaska discharge or discriminate against Sharon Shields during her employment in violation of AS 23.40.110(a)(1) or (3) because of her support for union organizing of the parks, culture and recreation department employees?

A. Can Sharon Shields establish a prima facie case for violations of AS 23.40.110(a)(1) and (3)?

B. Can the City of Unalaska provide evidence that it would have taken the same action even if Shields had not engaged in protected activity?

C. Would the City have discharged Sharon Shields "but for" her support for the unionization of parks, culture and recreation employees?

II. Can a member of the law firm representing a party testify?

The parties agreed to reserve the issue of damages.

Summary of the Evidence

A. Sharon Lee Shields offered the following exhibits, which were admitted into the record (those exhibits noted with a star (*) concern Shields’s claim for damages and were admitted in this proceeding on the issue of credibility).

1. S. Shields, letter to whom this may concern (undated);

2. Payroll change form (Dec. 16, 1994);

3. Termination Report (Feb. 2, 1995);

4. Temporary employee check list (Feb. 6, 1995);

5. City of Unalaska, personnel expenses (July 20, 1995);

6. Notes regarding Lisa Lee and Sharon Shields’s disagreement;

7. L. Princic memorandum to reception desk (July 28, 1995);

8. Whitaker letter to S. Shields (Aug. 4, 1995) (notice of separation);

9. Miscellaneous receipts (various);*

10. America’s Best Contacts & Eyeglasses, receipts (various);*

11. T. Wells, billing statement (May 9, 1996) (various);*

12. T. Wells, attending surgeon’s statement (May 23, 1996);*

13. Preauthorization (Sept. 6, 1996);*

14. P. Wright, estimate (Sept. 11, 1996);*

15. S. Shields, canceled check to Dr. Wells (Aug. 22, 1996);*

16. Miscellaneous canceled checks (various);*

17. City of Unalaska, Department of Parks, Culture & Recreation, 1995 Summer Program Schedule (2 pgs);

18. Mt. Ballyhoo Run announcement;

19. Article from the Dutch Harbor Fisherman (Thursday, July 11, 1995);

20. Department of Parks, Culture & Recreation, organizational chart;

21. J. Spalding, letter to S. Shields (Aug. 15, 1995) (grievance denial);

22. Memorandum to payroll department (Sept. 22, 1994);

23. Memorandum to payroll department (Oct. 17, 1994);

24. Payroll change forms (showing changes in status) (various); and

25. Payroll change forms (showing changes in status) (various).

The City of Unalaska offered the following exhibits, which were admitted into the record:

A. Unalaska City Ordinance, title 3 (May 24, 1994);

B. Sharon Shields personnel file;

C. Department of Parks, Culture & Recreation, organizational chart;

D. Shields’s Human Rights Commission complaint (Dec. 20, 1995);

E. Certified employee list (June 21, 1995);

F. City of Unalaska, Summary Plan Description (employee benefits);

G. J. Spalding, memorandum to M. Whitaker (June 9, 1995) (regarding management conduct during organizing campaign);

H. Job announcements (various); and

I. Payroll change forms (administrative assistants) (various).

B. Testimony

Sharon Lee Shields testified and presented the testimony of City employees and coworkers Lorri Leonard (McDuffy), Michelle Clayton, Michaella Phillips, and Bobbie Dinwiddie.

The City of Unalaska presented the testimony of Mike Whitaker, former director, Department of Parks, Culture and Recreation; Laura Princic, former operations supervisor; James Spalding; personnel manager, Lisa Lee, coworker; Mya Renken, coworker; Katherine Price (Maglashin), coworker; and Patrick McCabe, attorney.

Findings of Fact

The panel, by a preponderance of the evidence, finds the facts as follows¹:

1. Sharon Shields was first employed by the City of Unalaska on September 22, 1994, as a new emergency hire administrative assistant I in the Department of Public Works. Exh. 22.

2. Shields was changed from an emergency hire to a temporary hire administrative assistant I on October 17, 1994, in the Department of Public Works. Exh. 23.

3. On December 12, 1994, Shields resigned from her administrative assistant I position in the Department of Public Works to accept a transfer to the emergency hire administrative assistant III in the Department of Parks, Culture and Recreation (PCR). The position she filled was an emergency hire to replace a temporary hire who had to leave Unalaska due to personal reasons. The temporary had been hired to replace Laura Princic who was on maternity leave. Exhs. 1 & 2.

4. On February 2, 1995, Shields’s emergency hire as PCR’s administrative assistant III terminated after Ms. Princic’s return from maternity leave. Mike Whitaker rated Shield "Good" in all categories of performance and recommended without reservation Shields’s rehire. Exh. 3.

5. On February 6, 1995, Shields was rehired as a temporary administrative assistant II in the Department of Parks, Culture and Recreation. She filled one of four temporary positions that head been created to open the new recreation center. Exh. 4; Exh. B, at 15.

6. On August 4, 1995, Shields was separated from her employment six months after her temporary assignment began. Exh. 8; Exh. B, at 15-16.

7. Title 3 sets forth the applicable rules and regulations pertaining to Shields’s employment with the City of Unalaska. Exh. A.

8. According to Title 3, temporary employees may only be employed with the City for up to six months. Id., at 6. The City of Unalaska routinely takes any one of the following actions at the end of a temporary appointment: (a) terminate the employee prior to the end of the six month period due to lack of work of performance problems; (b) terminate the employee at the end of the six month period, permit a break in service, and rehire the individual in the same or another temporary position if the employee’s performance has been satisfactory; (c) terminate the employee at the end of the six month period and not rehire that individual if the employee’s performance was less than acceptable; (d) terminate the employee at the end of the six month period and later hire the employee into a different temporary assignment or even a part-time or full-time position if the employee’s performance had been acceptable.

9. The City, through Shields’s supervisor Laura Princic, was aware that Shields supported the labor organization seeking to represent employees in the City’s parks, culture and recreation department.

10. Shields’s performance, specifically her relationship with her supervisor, was the reason she was separated from her employment at PCR.

11. The City’s action in separating Shields from her employment at PCR was not motivated by Shields’s support for a labor organization.

Discussion

Sharon Shields moved to Unalaska in June of 1994. She was studying cultural anthropology and interested in the Aleut culture. She first worked for the Unalaska senior citizens as a program director. Her duties included a lunch program at the senior center three days each week. Shields was first employed by the City of Unalaska on September 22, 1994, as a new emergency hire administrative assistant I in the Department of Public Works.² On October 17, 1994, her status changed from an emergency hire to a temporary hire. She left the position at public works to take a temporary position as an administrative assistant III in the parks, culture and recreation department on December 14, 1994. She was substituting for Laura Princic, who was on family or other medical leave and who became Shields’s supervisor when she returned to work.

This position at the Department of Parks, Culture and Recreation was attractive to Shields because it carried the promise, whether express or implied, of a future permanent position in that department. The City had four such temporary positions of administrative assistant at the Department of Parks, Culture and Recreation. The City was hiring for a new facility to open in March of 1995 and City management expected to have the positions made permanent after it had an opportunity to assess the facility’s actual needs. The positions were to remain temporary until the City Council approved the financial plan. Exh. 5. Shields hoped to obtain a permanent, full-time position with full benefits.

The City makes extensive use of temporary hires, with about six temporary employees on staff at any time. City ordinance restricts temporary hires to six months. Temporary hires do not receive vacation, benefits, moving expenses or a travel allowance. Exh. A. Employees in temporary positions are not evaluated but if performance is satisfactory, they are eligible for rehire as a temporary with consent. In addition, employment in a temporary position could lead to hire in a permanent position. Temporary hires are not told the reason for a decision not to rehire or retain them.

Shields’s work performance, at least initially, was good. When she was supervised by Mike Whitaker, the director of parks, culture and recreation, she was rated good and recommended for rehire. Several of her coworkers described Shields as reliable, diligent and good with community members and the elders, although they acknowledged she had problems with one of her coworkers, Mya Renkin.

On the other hand, Shields had significant problems with her supervisor, Laura Princic. Shields had substituted for Princic when Princic was on leave. Princic was an administrative assistant III when she first began supervising Shields. Sometime later Princic was promoted to operations supervisor of the parks, culture and recreation facility, with responsibility to keep the facility open.

Shields described their relationship as positive when Princic first returned to work. They worked together to prepare for the opening of the new facility. Later Shields came to regard Princic as distracted by personal problems and by a dispute with the City over a promotion or wages. Shields believed that Princic was a poor supervisor. This opinion was shared by other employees. Princic was described as prone to"fly off the handle," and to use foul language. She was described as frustrating because she did not know how to supervise.

Shields criticized Princic openly. One coworker, Mya Renkin, did not believe Shields acted appropriately to Princic as a supervisor. Shields disapproved of the way Princic interacted with members of the community. When Princic sought to counsel Shields about Shields’s attitude, Shields responded that the problem was Princic’s attitude.

The parties raised a number of incidents that illustrate the employment relationship between Shields and Princic. One incident in July of 1995 involved Shields’s return to work after being away. Shields could not return to Unalaska on the date planned due to weather conditions and was delayed. Princic apparently perceived this delay as a performance deficiency because Shields’s absence "put her in a bind" despite Princic’s recognition that the delay could not have been avoided.

A second incident involved the Ballyhoo Run, a community foot race sponsored by PCR. The dispute concerned whether community members could obtain a shirt merely by registering or whether they had to participate in the race. Shields heard a coworker advise someone on the telephone that he or she needed to participate in the race to obtain the shirt. Shields "corrected" her on the basis of the informational flyers distributed by the department. Exhs. 17, 18, & 19. When the coworker told Shields that she was following Princic’s directive, Shields responded that Princic was wrong. Shields sought support for her position from other department employees.

Following this incident, on July 27, 1995, Mike Whitaker, director, and Jim Spalding, personnel manager, met with Shields, asked her about the race, and confronted her with Princic’s notes about the incident. Exh. 6. Shields disputed the accuracy of Princic’s account. Shields was also questioned about her handling of an aerobics punch card in violation of procedures. Shields explained how and why she had not followed procedure: a malfunctioning computer system prevented it. Shields stated she asked if these concerns involved the union and Spalding answered her that during a union drive things get blown up and exaggerated.

Following the meeting Princic was directed to issue a memorandum stating department policy regarding the Ballyhoo Run shirts. Princic then circulated a memorandum providing that persons who do not "show up to participate" forfeit their shirt. Exh. 7. Regardless, Shields continued to maintain that the Princic’s directive is contrary to the publications. Although the fact may have been poorly communicated, the fact was clear from the City employees with authority that participation in the race was needed to obtain a shirt. Whitaker, director of parks, culture and recreation, considered this meeting one of two in which he had to counsel Shields about problems with her performance.

Another incident was Shields’s relationship with Mya Renkin. Renkin believes that Shields took credit for an idea of Renkin’s. The dispute seems a petty one, about moving the check-in procedure for the facility. Nevertheless, it demonstrates conflict between coworkers.

Yet another incident involved parking. The day before Shields was advised she would not be retained, Princic provided her with a memorandum not to park in a certain location. Shields parked in violation of the memorandum the very next day.

These incidents support a number of possible conclusions: Princic was a weak supervisor; Shields did not take direction well from Princic; and Shields had problems with two employees, her supervisor and a coworker. Unsupported is the conclusion that Shields’s problems in the work place were related to union activism or support.

While Shields did support a labor organization seeking to represent the employees, she does not appear to have been very active on its behalf. Shields was not involved in the collection of interest cards. She did talk about the union with coworkers. Shields’s first conversation about the union was in February of 1995 with Lorri Leonard (formerly McDuffy). Leonard appears to have persuaded Shields to support the union. After Shields returned from leave in July, the union was a topic of conversation. Shields referred coworkers to Leonard, one of the original supporters of the union. However, in June or July of 1995, Leonard’s attitude about the union had changed. Leonard told Shields that her opinion had changed, but would not explain the reason. At the hearing, Leonard testified about the reason; she had become convinced after talking to supervisors that her wages could be frozen until the wages of less senior employees were brought up to them, and she could lose benefits, such as her airfare benefits. Leonard told Princic and Whitaker that she no longer supported the union, and Leonard received assurances that she would be removed from the unit after the union was in place.³ Leonard got frustrated when Shields and other employees inquired about why she changed her mind. Leonard talked to Princic. At the hearing Princic identified Shields as the person "badgering" Leonard, but Leonard stated her concerns were not specific to Shields. Princic distributed a memorandum in response to Leonard’s concerns, and Leonard said that following the memorandum, Shields did not raise the issue of the union with her.

Two active union organizers did testify. Michaela Phillips was employed by the City at the parks, culture and recreation department and was very involved in the organizational campaign. Phillips continues to be employed by the City. Phillips’s partner in organizing the department was Bobbie Dinwiddie. Dinwiddie left the department before the union representation election but is still employed by the City.

Another temporary employee who was not retained by the City after her temporary term ended was Michaela Clayton. She went to work for the City as a temporary employee, initially in November of 1993. Like Shields, she went to work in the parks, culture and recreation department under the assumption that she would be hired in a permanent position. Clayton also was supervised by Princic and seems to have had problems with her as well. She was separated from her employment in May of 1995 after traveling to Anchorage for dental work. Clayton thought Princic had consented to the trip but later Princic reproached her about going. When Clayton returned from Anchorage, she was told her services were no longer needed. Like Shields, Clayton was not provided any explanation. Unlike Shields, Clayton had "absolutely no involvement" with the union.

Princic testified that she initially had supported the union. She dropped her support after she became a supervisor. While Princic questioned the effectiveness of the union seeking to represent the department’s employees, she did not exhibit antiunion animus. One of the employees did quote Princic as stating she would make sure that Shields would be gone before her vote counted with the union. However, Princic disputed making any such statement. She explained that she did remark that Shields "was crazy" if Shields thought she would change anything in the department. Princic’s dislike of Shields was patent but the evidence did not relate her dislike to any antiunion animus.

Princic described Shields as uncooperative, argumentative, "not a team player," and resistant to direct supervision. She discussed her concerns about Shields with her supervisor Whitaker and with Spalding.

On August 4, 1994, Whitaker notified Shields of her separation of employment by handing Shields a notice of her separation. Exh. 8. Whitaker did not explain his action, and Shields believes the reasons were her union activities and what she termed "rampant discrimination." Shields elaborates on this discrimination in a human rights commission complaint in which she alleges that the City discriminated against her due to her age and retaliated against her for opposing race discrimination. Exh. D.

Shields’s separation was close to the time set for counting ballots in the representation election. Exh. E.

In reviewing the evidence, we note that Shields and Princic did not get along: Princic’s expectations were unreasonable; and Shields was difficult to supervise. A nexus to union organizing, however, is notable only for its absence. The leaders in the organizational campaign were not discharged. Another person separated from employment during this period had no connection to the union. Shields’s support for the union, if it were a factor at all in her discharge, was secondary to her personality conflict with her direct supervisor. Princic and Whitaker vigorously denied any connection between Shields’s union support and her separation, and we credit their testimony.

There was evidence in this case of employment practices, particularly with regard to temporary employees, that we would not endorse. But the job of this Agency is not to evaluate the City’s personnel policies; it is to examine whether the treatment of Sharon Shields was an unfair labor practice under AS 23.40.110(a)(1), because it interfered with protected rights or under 23.40.110(a)(3), because it constituted discrimination to encourage or discourage union membership.

I. Did the City of Unalaska discharge or discriminate against Sharon Shields during her employment in violation of AS 23.40.110(a)(1) or (3) because of her support for union organizing of the parks, culture and recreation department employees?

A. Can Sharon Shields establish a prima facie case for violations of AS 23.40.110(a)(1) and (3)?

1. AS 23.40.110(a)(1)

AS 23.40.110(a)(1) prohibits conduct that could chill or interfere with an employee's exercise of rights that are protected under the Public Employment Relations Act. AS 23.40.080. The employer's motive for acting is less important than whether the action could reasonably have the effect of interfering with the free exercise of a protected right. Munson v. State, Decision & Order No. 206, at 16 (Sept. 20, 1996); 1 Patrick Hardin, The Developing Labor Law at 76 (3d ed. 1992) (examining the similar section 8 (a)(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1)). AS 23.40.080 lists the rights that are protected:

"Public employees may self-organize and form, join, or assist an organization to bargain collectively through representatives of their own choosing, and engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection."

The section specifically protects the exercise of organizational rights. Ms. Shields supported the organizational efforts of the ILWU, which were ongoing during her employment at the City. The facts do not show that the City committed a direct violation of AS 23.40.110(a)(1). The evidence does not suggest, for example, that the City interfered with Shields’s rights to organize or to participate in concerted action by making any unlawful promises of benefits, threats of reprisals, or inducements or by withholding benefits. See generally 1 Patrick Hardin, supra 107-136. The record therefore does not support a direct violation of AS 23.40.110(a)(1).

However, a violation of AS 23.40.110(a)(1) can be proven indirectly. Conduct that is proven to be an unfair labor practice under AS 23.40.110(a)(2), (3), (4), or (5) also can be said to interfere with protected rights under AS 23.40.110(a)(1). These derivative violations of AS 23.40.110(a)(1) are addressed under the primary unfair labor practice charged. Shields’s complaint and evidence raise a question whether she was discriminated against to encourage or discourage union membership in violation of AS 23.40.110(a)(3). If Shields can prove that her discharge or the failure to renew her employment violated AS 23.40.110(a)(3), she will also prove a derivative violation of AS 23.40.110(a)(1).

2. AS 23.40.110(a)(3)

AS 23.40.110(a)(3) is based on section 8(a)(3) of the National Labor Relations Act. 29 U.S.C.A. § 158(a)(3) (West 1996). The elements of a case for discharge or discipline in violation of this section are (a) employer knowledge that the employee is engaged in union activity and (b) employer discharge or discipline motivated by this knowledge. See 1 Patrick Hardin, Supra 215 (3d ed. 1993); ASEA (Raymond Johnson) v. State, Decision & Order No. 193, at 12-13 (Sept. 26, 1995).

Shields supported the union, although she was not one of the leaders of the organizational campaign. Her immediate supervisor, Laura Princic, was aware of that support but other members of management were not, such as director Mike Whitaker and personnel director Jim Spalding. Princic’s knowledge, however is sufficient evidence of employer knowledge to satisfy this element.

The second element, that this knowledge motivated the employer to act, is harder to prove. The Alaska Supreme Court has stated that, "[T]o establish a violation of section 8(a)(3) of the Labor Management Relations Act, the employer’s action generally must have been based on an antiunion motive." Alaska Community Colleges’ Federation of Teachers, Local 2404 v. University of Alaska, 669 P.2d 1299, 1307 (Alaska 1983); ASEA (Raymond Johnson) v. State, Decision & Order No. 193, at 12-13. The City in this case maintains that Shields’s work performance motivated its decision not to rehire or retain her. Establishing causation where the motivation might be mixed can be very difficult. In such cases we employ the Wright Line test: In NLRB v. Wright Line, a court of appeals reviewed the National Labor Relations Board’s test in these so-called mixed motive cases, stating,

The Board may properly provide, therefore that "Once [a prima facie showing] is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." The "burden" referred to, however, is a burden of going forward to meet a prima facie case, not a burden of persuasion on the ultimate issue of the existence of a violation.

NLRB v. Wright Line, 662 F.2d 899, 902, 108 L.R.R.M.(BNA) 2513, 2517 (1st Cir. 1981), cert. denied, 455 U.S. 989, 109 L.R.R.M.(BNA) 2779 (1982) (citations and footnotes omitted); ASEA (Raymond Johnson) v. State, Decision & Order No. 193, at 12-13.

The threshold question is whether the employee can establish a prima facie case. If the employee can show a prima facie case, the burden shifts to the employer to show evidence that it would have acted the same way despite the protected activity. The ultimate question is whether the employer would have terminated the employee "but for" the protected activity. NLRB v. Wright Line, 662 F.2d, at 906, 108 L.R.R.M.(BNA), at 2518 (footnotes omitted); ASEA (Raymond Johnson) v. State, Decision & Order No. 193, at 12-13.

Applying these principles to this case, we note that Shields’s evidence of antiunion motivation was weak. A witness claimed to overhear Princic state she would get rid of Shields before there was any union. This evidence was denied convincingly and we did not credit it. There was some suggestion that the City had influenced Lorri Leonard to withdraw her support for the union by threatening the loss of wages or benefits. Although ambiguous, this evidence may lend some support to finding City animus although the animus was not linked to any action concerning Shields. We conclude that the evidence of antiunion motive does not support the conclusion that this animus motivated the nonretention of Shields and that Shields did not prove a prima facie case under the Wright Line test.

If there is no union animus, the employer is not required to provide a reason for its action. 1 Patrick Hardin, Supra 216 & n. 175. However, we do examine the reasons the City has provided in justification for its action under the Wright Line test.

B. Can the City of Unalaska provide evidence that it would have taken the same action even if Shields had not engaged in protected activity?

If Shields had proven a prima facie case, the burden would shift to the City to provide evidence that it acted independently of Shields’s support for the union. The City has come forward with substantial evidence that its actions were motivated by concerns about Shields’s performance. The manager responsible for the decision not to retain or rehire Shields was Mike Whitaker. He was not aware of Shields’s union support. He was very aware of the conflicts between Shields and her supervisor. He testified that the decision not to rehire Shields was his decision and he was motivated by Shields’s performance.

Shields had a poor relationship with her supervisor. She demonstrated unwillingness to follow Princic’s instructions, and her conduct bordered on insubordination in the Ballyhoo and parking incidents. A willful refusal to obey reasonable instruction can be grounds for discharge. Helmuth v. University of Alaska Fairbanks, 908 P.2d 1017 (Alaska 1995); Bishop v. Municipality of Anchorage, 899 P.2d 149 (Alaska 1995); Central Alaska Broadcasting v. Bracale, 637 P.2d 711, 713 (Alaska 1981). Moreover, Shields did not yet have a permanent position. Whether we agree with how the City chose to handle the problems between its supervisor and Shields, we believe its action was motivated by these problems and independent of any union animus. We conclude that the evidence showed lawful reasons for the City’s actions. Rent Me Trailer Leasing, Inc., 305 N.L.R.B. No. 169, 139 L.R.R.M.(BNA) 1106 (1992).

C. Would the City have discharged Sharon Shields "but for" her support for the unionization of parks, culture and recreation employees?

Once there is evidence of a proper motive for the employment action, the burden shifts to the employee to show that the City would not have acted "but for" its antiunion motive. In this case, the evidence supports the conclusion that the real reason for the City’s action was Shields’s relationship with her supervisor. We find particularly persuasive evidence that the principal union organizers remain employed with the City and evidence that the other employee who was not retained for performance issues was indifferent on the question of union representation. The poor relationship between Shields and Princic was demonstrated by a number of incidents, none of which were linked to Shields’s union support or to any City antiunion animus.

We therefore conclude that the City’s notice to Shields that she would not be retained would have taken place regardless of her support for the union. We further conclude that the City’s action was not to encourage or discourage membership in the union in violation of AS 23.40.110(a)(3). ASEA (Raymond Johnson) v. State, Decision & Order No. 193, at 14.

Because we have concluded that the City did not commit an unfair labor practice under As 23.40.110(a)(3), we also must conclude that the City did not thereby commit a derivative violation of AS 23.40.110(a)(1).

II. Can a member of the law firm representing a party testify?

The City of Unalaska’s witness list included the name of Patrick McCabe, an attorney with the law firm of Owens & Turner, representing the City. McCabe had interviewed a witness in these proceedings, Lori Leonard (formerly McDuffy), and prepared an affidavit based on her statements. Leonard was an administrative assistant in PCR. She worked at the front desk, was an assistant to Laura Princic, and filled in for Princic during her absence. Although the affidavit was unsigned, the City filed the affidavit with the Agency in support of representations in its submission to the investigator. The City later filed its investigation submission as its prehearing statement.

Leonard testified at the hearing. In her testimony she specifically disagreed with statements in the affidavit about a conflict with Shields over support for the union. Leonard stated that many employees approached Leonard about the change in her views about the union. Leonard said she did not specifically single out Shields and she did not ask Princic to intervene on her behalf about the union. Leonard also disputed that Princic was her supervisor. It seemed to be a matter of pride with Leonard that she was supervised by Mike Whitaker rather than Laura Princic. She stated she never told anyone differently. Leonard stated she was not sent an affidavit to sign, and that, when a City attorney asked her to testify in this case, Leonard said that she would not. She said she told a woman who telephoned that she supported Shields in her action.

The City called McCabe to testify, and Shields’s attorney objected to the testimony on the basis of the Alaska Rules of Professional Conduct. The hearing examiner took the testimony, reserving ruling on the objection and asking the parties to provide briefing on the application of the Code to the admissibility of evidence in an administrative proceeding.

Rule 3.7 of the Alaska Rules of Professional Conduct provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except when:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Applying Rule 3.7, we note that McCabe was not the advocate in the case. The prohibitions in subsection (a) therefore do not apply. Turning to subsection (b), we note that McCabe’s testimony was not in conflict with the City’s interests and that the City is not a former client of the law firm. The prohibitions referred to in subsection (b) in rules 1.7 or 1.9 therefore would not preclude the law firm from serving as an advocate for the City in this matter. Thus, Rule 3.7 does not bar McCabe’s testimony.

Nevertheless, the testimony is troubling. McCabe was not called as a percipient witness. He investigated the facts in preparation for the law firm’s representation of the City in this matter. McCabe’s testimony was in rebuttal to Leonard’s testimony. Leonard’s testimony conflicted with the affidavit drafted by McCabe and submitted unsigned to the Agency. McCabe testified he drafted the affidavit after a telephone conversation with Leonard, and that he had accurately set out the facts as she stated them.

We have several problems with these events. Our first concern is that the City’s representative allowed an unsigned affidavit to remain in the record after learning that the affiant had denied that parts of it were true. Usually an unsigned affidavit is submitted after approval by the affiant but before a signed copy is available. The promise, usually express, is that a signed copy will be submitted as soon as possible. The City did not follow up with a signed affidavit in this case. This failure or the original absence of a signature on the affidavit could have been overlooked, and the affidavit could easily have mislead the panel in this case. We believe the better practice is to inform the Agency that the affiant would not sign the affidavit, substitute a corrected affidavit, or withdraw the affidavit. Attorneys who knowingly make "a false statement of material fact" violate Rule 4.1 of the Code. Regardless whether the City’s failure to correct a potentially misleading affidavit actually violates this rule, we believe the City’s representative should have taken steps to avoid misleading us.

Second, defending the affidavit was not the best step to avoid misleading the panel. The testimony provided an explanation for the unsigned affidavit and the conflict between it and Leonard’s testimony, but at great cost. The attorney, who appears as an advocate before the board, put his integrity at issue when he testified in conflict to Leonard, and he exposed himself to cross examination. By exposing himself to impeachment in one proceeding, he potentially jeopardized his future effectiveness as an advocate.

A third concern is that old saw, the slippery slope. By opening the door to this kind of testimony we could open the door to the self-serving statements of attorneys every time a witness changes a statement or does not testify as expected. We suspect that such testimony would be less likely to serve the quest for the truth than to disclose sloppy preparation. It is also vulnerable to the perception that the attorney is "distorting the truth for the sake of a client or enhancing his or her own credibility as an advocate by taking an oath as a witness." See Annotated Model Rules of Professional Conduct 356 (3d ed. 1996) (Comment to Rule 3.7).

Because of our reservations about the probative value of this testimony, we accord it no weight.

Conclusions of Law

1. The City of Unalaska is a public employer under AS 23.40.250(7), and this Agency has jurisdiction under AS 23.40.110 to consider this matter.

2. The City did not violate AS 23.40.110(a)(1), which provides that interference, restraint or coercion against an employee's exercise of rights protected in AS 23.40.080 is an unfair labor practice.

3. The City did not violate AS 23.40.110(a)(3), which prohibits conduct that discriminates "in regard to hire or tenure of employment or a term or condition of employment to encourage or discourage membership in an organization."

4. The Alaska Rules of Professional conduct does not preclude the testimony of Patrick McCabe, an attorney in the law firm representing the City in this matter.

ORDER

1. The unfair labor practice complaint of Sharon Lee Shields is DENIED and DISMISSED; and

2. The City of Unalaska is ordered to post a notice of this decision and order at all work sites where members of the bargaining unit affected by the decision and order are employed or, alternatively, serve each employee affected personally. 8 AAC 97.460.

ALASKA LABOR RELATIONS AGENCY

Blair E. Schad, Vice Chair

James W. Elliott, Board Member

Karen J. Mahurin, Board Member

APPEAL PROCEDURES

An Agency decision and order may be appealed through proceedings in superior court as provided in the Alaska Rules of Appellate Procedure and the Administrative Procedures Act.

The decision and order becomes effective when filed in the office of the Agency, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of SHARON LEE SHIELDS vs. CITY OF UNALASKA, PARKS CULTURE AND RECREATION, CASE NO. 96-465-ULP, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 25th day of February, 1997.

Victoria D. Scates

Administrative Clerk III

This is to certify that on the 25th day of February, 1997, a true and correct copy of the foregoing was mailed, postage prepaid to

Robert B. Mason, counsel for Sharon Shields

Kimberly K. Geariety, City of Unalaska

Signature

¹The parties stipulated to facts (1) through (8).

²Shields left her part time job at the senior center on February 28, 1995. Whether the City required her to leave her job to maintain her position at the City was disputed. However, the reason Shields left the senior center is not relevant, and we do not decide the question.

³We are compelled to note that employer statements during an organizational campaign that existing benefits may be reduced or lost if the union prevails can in some circumstances be an unfair labor practice. See 1 Patrick Hardin, The Developing Labor Law 113 (3d ed. 1992).

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