Did Castlewood’s Lawyer Doctor Evidence?

The attorney for the upscale Pleasanton country club that locked out its workers is now on the hot seat.

If there’s one area in which Occupy Oakland excels, it’s bringing sex appeal to seemingly dry populist issues — like fair wages and labor laws. A couple weeks ago the movement cast its eye toward a protracted dispute between workers and management at Pleasanton’s Castlewood Country Club, which, it turned out, served as a perfect allegory of the One Percent attacking the little guy. In fact, it’s even more perfect than occupiers might have anticipated. Court documents suggest that one of Castlewood’s lawyers doctored evidence in the case so the country club wouldn’t have to pay locked-out workers at least $1.7 million in back pay.

The fight actually started two years ago, when Castlewood locked out staff members following a dispute over health care — the club’s new contract demanded hefty contributions from employees who’d previously received it for free. The new fees were $366.93 for single policies per month and $739.08 for families. The conflict remains unresolved and Castlewood has hired a full “replacement” staff while locked-out workers continue to picket every day. By the time Occupy Oakland got involved, the country club had already tried a series of tactics that could be deemed “coercive,” including allegedly pressuring workers to decertify their union.

Now a new wrinkle has appeared, and it can only add fuel to fire. On March 1, Administrative Law Judge Clifford Anderson wrapped up a hearing for a complaint that the National Labor Relations Board had issued against Castlewood, alleging that the lockout was unlawful. It actually isn’t illegal to lock out workers to goad them into submission after a contract dispute, but certain changes that Castlewood allegedly was proposing — like trying to abrogate the country club’s seniority system, and making union membership optional, rather than mandatory — showed that Castlewood wasn’t just trying to win a fight over health care. It appears that it was trying to destroy the union, and replace a full staff of bartenders, janitors, and kitchen helpers with people who will do the same job at a lower price. And, union reps say, the country club has been obfuscating those intentions.

Now the union has evidence that Castlewood’s lawyer Robert Hulteng of the notoriously anti-union firm Littler Mendelson tampered with evidence in the case. During the NLRB hearing last month, both Hulteng and UNITE HERE Local 2850 rep Sarah Norr were called as witnesses and asked to submit their notes from two bargaining sessions — one in August 2010 and one in November 2010. Norr’s notes were typed; Hulteng’s were handwritten, because, he argued, it’s extremely difficult to hold forth at a negotiating table and type notes at the same time.

Yet the two sets of notes differed significantly — not only in their level of detail, but also in terms of critical statements made at the sessions. Norr’s record stated that Castlewood wanted to alter proposals that had nothing to do with health care — that club mangers wanted the freedom to dismiss locked out workers and replace them with new, non-unionized employees who were cheaper and allegedly more efficient. Norr’s August 10, 2010 transcript, obtained by the Express, quoted Hulteng saying as much: “While having a labor dispute is never pleasant, they’ve [club managers] concluded that the people they have working here now have convinced the [club’s] members that they’re getting superior service now,” he said. “This is a very strong feeling among the members. The [club’s] Board has to speak for the members and they believe that they are.”

Hulteng’s statements were pivotal because they provided further evidence that Castlewood was engaging in unfair labor practices in violation of federal law. In fact, the union filed unfair labor practices charges against Castlewood with the NLRB in October 2010, which then launched an official investigation in August of the next year.

But when Hulteng presented his notes to the judge last month, they were much different from Norr’s, and have him speaking more innocuously at the August 10, 2010 bargaining session: “We do believe strongly in our position, in part because members believe service has been sometimes superior during lockout,” he wrote. He’d also specified that “locked out ees will come back” (“ees” is short for “employees”). Such statements would lead a judge to conclude that Castlewood ultimately intended to rehire its locked-out workers, instead of replacing them, and thus was not engaging in unfair labor practices.

The discrepancy between Norr’s and Hulteng’s notes raised alarm bells for union attorney Kristin Martin. She suspected that the Castlewood lawyer had changed his official August 10, 2010 transcript after the fact to make his own statements seem more benign. Martin also noticed that certain lines of Hulteng’s notes had been written in a different type of ink. Hulteng had already testified under oath that he doesn’t usually make such alterations to his notes. When Judge Anderson buttonholed the Castlewood lawyer about his note-taking practices at the February 3 hearing, Hulteng vehemently defended them: “If I do [make changes] it’s always within minutes after it was said, so it’s usually pretty fresh,” Hulteng said, according to a court transcript.

But in this case, though, Hulteng had gone against his own practice. That became abundantly clear after UNITE HERE sent his notes to a forensics expert. The results, obtained from a microscopic examination and released on February 12, showed that Hulteng had, indeed, amended his notes, mostly with modifying words — the word “sometimes” was a later addition, as was the phrase “open to discuss” and “open to ideas.” More damning, however, was the added phrase “locked out ees will come back,” which, Martin noted, changed the whole sentiment of Castlewood’s proposal. Norr’s notes had Hulteng saying that the club wanted to pick and choose which employees it would rehire; Hulteng’s newly revised notes said that all of them will ultimately come back.

But then after the NLRB hearing on February 3, 2012, Hulteng suddenly remembered that he had, in fact, amended his notes “at a date subsequent to August 10 [2010],” as he wrote later in a letter to Judge Anderson. He said that on November 9, 2010 — three months after the bargaining session, and after the union had filed unfair labor practices charges — he added phrases to the August 10 notes. November 9, 2010 was the day that UNITE HERE Local 2850 president Wei-Ling Huber read back the union’s understanding of Castlewood’s proposal: that the club wanted to eliminate seniority as a basis for hires and layoffs, and that the club wanted the liberty of replacing locked-out workers with temps. Hulteng evidently realized, upon reflection, that he actually wanted the tenor of his statements to be a little more — well, legal. “I went back during the November meeting and added three phrases to my notes from the prior meeting,” Hulteng said in a phone interview last Friday.

But here’s the rub: Hulteng had already testified under oath that he seldom, if ever, changes his notes, and that if he were to do such a thing, it would happen immediately after the bargaining session — not three months later. While he insists that the edits were made merely for sake of clarity and were consistent with his recollection of the August 10, 2010 bargaining session, Martin thinks otherwise. She says the edits were willful. She argues, furthermore, that Hulteng’s changes serve to purposefully conceal Castlewood’s intentions.

On February 9 — three days before the forensics report came out — Hulteng wrote a letter to Judge Anderson in which he essentially confirmed all of Martin’s charges, but also tried to undermine them. “The added phrases are consistent with my recollection of the August 10 bargaining session, and were added for the purpose of making sure that the notes captured statements made at the bargaining table,” he wrote. To Martin and the union reps, it read like a form of damage control. It also appeared that Hulteng had admitted to what could be construed as a serious act of misconduct — that he doctored evidence in order to justify the continued lockout of low-wage workers.

Whether Hulteng will face any punitive measures remains unclear. Martin didn’t see it as her duty to report an act of ethical misconduct to the state bar. She said that Judge Anderson has the power to refer Hulteng to an investigating officer of the general counsel of the NLRB, which can, in turn, institute disciplinary proceedings. But at this point it seems unlikely that any such proceedings will take place. That said, the new development in the case provides more evidence of the lengths to which Castlewood has gone to defeat its union, and to avoid paying millions of dollars in restitution. Anderson is expected to issue a written decision in May, and if he rules in the union’s favor, then the NLRB could request more than two years’ worth of worker back pay. Protesters regaled club management with a fake $1.7 million check in September, but Norr said the actual amount could be greater — depending on how long the case languishes in court. 

The attorney for the upscale Pleasanton country club that locked out its workers is now on the hot seat.

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