Am. Fed'n of Teachers v. State

493 P.3d 1212

AMERICAN FEDERATION OF TEACHERS, LOCAL 1950, Appellant,

v.State of Washington, PUBLIC EMPLOYMENT RELATIONS COMMISSION, a Washington State Agency; and Shoreline Community College, Respondents.

No. 81322-6-I

Court of Appeals of Washington, Division 1.

FILED August 23, 2021

Dmitri L. Iglitzin, Kathleen Phair Barnard, Barnard Iglitzin & Lavitt LLP, 18 W Mercer St. Ste. 400, Seattle, WA, 98119-3971, for Petitioner.

John D. Clark, Office of the Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondents.

Mark Spencer Lyon, Office of the Atty. General, 7141 Clearwater Dr. Sw, P.O. Box 40108, Olympia, WA, 98504-0108, for Other Parties.

PUBLISHED OPINION

Bowman, J.

¶1 The American Federation of Teachers, Local 1950 (Union), appeals the decision of the Public Employment Relations Commission (Commission) to defer consideration of the Union's unfair labor practice (ULP) complaints against Shoreline Community College (College) until after an arbitrator resolves the College's affirmative defense of waiver by contract. Because the Commission has broad authority to determine when deferral to arbitration is appropriate, and a substantial question of contract interpretation exists that could influence or control the outcome of the statutory ULP claims, we affirm.

FACTS

¶2 The Union and the College began negotiating a new collective bargaining agreement (CBA) in 2017. A central issue in the bargaining process was how to compensate faculty for past wage increases that had been authorized but unfunded by the legislature since 2008. The College estimated it could contribute $311,000 from its reserve fund, but this amount did not cover summer quarter costs. The Union agreed to reduce its budget for sabbatical leave by $200,000 and add that money to the increment wages pool.

¶3 According to the Union, it communicated its strong desire to the College that "those who had missed the most in terms of unfunded increments would be able to get more [of] a share of the money." This required calculating each teacher's increase using a "weighted average" of workload, number of quarters worked, and several other factors. From the Union's perspective, the College appeared to accept the Union's methodology and was more concerned about the total number of dollars than the manner of distribution.

¶4 In negotiating the wage increases, the Union relied heavily on the work of its treasurer and College faculty member, Brad Fader. Fader taught accounting at the College and had 25 years of experience negotiating contracts and running financial analyses for the Boeing Company. Fader developed a method for calculating distribution of the pool of money and provided it to the College.

He also drafted language related to the unfunded wage increments that the parties later incorporated into the CBA as "Appendix A."¹

¶5 The parties included language in the CBA requiring the College to "make available to the [Union] information needed to assist the [Union] in performing its representative responsibilities," as well as standard waiver and integration clauses. For example, the CBA "constitutes the negotiated agreement between the [College] and the [Union] and supersedes any agreements or understandings, whether oral or written, between the parties." And the "Agreement expressed herein in writing constitutes the entire Agreement between the parties, and no oral statement shall add to or supersede any of its provisions." Finally, the CBA provided that any allegation that the College violated a section or provision of the agreement is subject to arbitration.

¶6 The parties executed the new CBA in May 2017 with an effective date of June 1, 2017. Several times between May and the end of June 2017, Fader asked the College to provide him with details about faculty workloads so he could complete his distribution calculations. The College did not give Fader the information. Instead, it told him it would release its calculations by the end of August.

¶7 When the College released its calculations in August 2017, Fader recognized they did not align with his methodology. According to the Union, the calculations used by the College "grossly underfunded" the pool, did not include summer quarter, "shortchanged long-term faculty increments," and "did not have any sort of weighting ... at all, certainly not for course loads." And part-time faculty members received compensation for certain work, while full-time faculty did not.

¶8 A series of communications between the Union and the College in early September 2017 did not resolve the problem. The College insisted it was correctly implementing the wage increases under the CBA. It asserted the Union was not accounting for benefit costs that the College had to deduct from the faculty payments, which the Union believed had been part of the initial funding. The College also explained that it did not include compensation for the summer quarter because the CBA did not mention summer. The Union asserted that the College used a method to calculate back pay that the Union did not contemplate or agree to during negotiations. The Union also complained that the College's two-month delay in releasing its calculations led to the faculty receiving back pay before the Union could address the discrepancies.

¶9 Communication between the two groups deteriorated. The "Joint Union Management Committee" took up the issue but could not resolve the dispute, so on October 23, 2017, the Union filed a ULP complaint before the Commission.

¶10 A Commission manager determined the Union raised viable ULP claims against the College and characterized them as (1) refusal to bargain and breach of good faith bargaining "over the decision of using a new methodology of calculating increased compensation and the total amount of increased compensation owed," (2) refusing to provide relevant information concerning data related to the compensation distribution, and (3) unilaterally changing the amount of compensation and methodology for distribution without providing an opportunity to bargain. The first two claims are statutory ULP complaints in violation of RCW 28B.52.073(1)(a) and (e). The third claim is a contractual dispute subject to arbitration under the terms of the CBA. The manager called for an answer from the College and assigned the matter to a hearings examiner (Examiner).

¶11 The College asserted an affirmative defense of waiver by contract to all of the Union's claims.² It argued that the Union's claims all related to conduct authorized under the CBA, and that interpretation of the parties’ contractual obligations should be resolved through the CBA's grievance and arbitration process. The College moved to dismiss the claims for lack of jurisdiction, or defer them all to an arbitrator.

¶12 The Examiner denied the College's motion, reasoning that claims (1) and (2) are statutory claims subject to Commission jurisdiction and not appropriate for deferral. The Examiner concluded that while claim (3) is a unilateral change allegation characterized as a contract dispute "appropriate" for arbitration, "the Commission does not bifurcate [ULP] complaints where statutory violations are also alleged."

¶13 After a four-day hearing with testimony and posthearing briefing, the Examiner ruled for the Union. While the Examiner did not directly address the College's waiver-by-contract argument, her ruling appears to reject the defense because "the [U]nion and [College] never had a meeting of the minds in regard to compensation for missed increments."

¶14 The College appealed the Examiner's ruling to a three-member panel of the Commission. In a split decision, the Commission vacated the Examiner's ruling and deferred the matter to arbitration to resolve the College's "colorable" waiver-by-contract defense to all three of the Union's claims. One member dissented, arguing the Commission's ruling departs from its policy to defer only unilateral change allegations to arbitration, not statutory ULP claims.

¶15 The Union appeals.

ANALYSIS

¶16 The Union argues the Commission wrongly deferred its statutory ULP claims to arbitration. The College contends that the Commission properly exercised its discretion to withhold consideration of the Union's ULP claims until an arbitrator determines whether the claims were waived by contract. We agree with the College.

¶17 When reviewing a decision of the Commission, we look to the findings and conclusions of the Commission, not those of the Examiner. Int'l Ass'n of Firefighters, Local 469 v. Wash. Pub. Emp't Relations Comm'n, 38 Wash. App. 572, 575-76, 686 P.2d 1122 (1984). The Examiner's findings are part of the record, however, and we may weigh them in considering the evidence supporting the Commission's decision. Pasco Police Officers’ Ass'n v. City of Pasco, 132 Wash.2d 450, 459, 938 P.2d 827 (1997).

¶18 Though we may substitute our own determination for that of the Commission in reviewing questions of law, we give great weight and substantial deference to the Commission's interpretation of the Public Employees’ Collective Bargaining Act, RCW 41.56.010 -.900, RCW 41.06.150. Teamsters Local 839 v. Benton County, 15 Wash. App. 2d 335, 343, 475 P.3d 984 (2020). Along with Washington law, we look to National Labor Relations Board (NLRB) decisions construing the National Labor Relations Act, 29 U.S.C. §§ 151 - 169. Pasco Police, 132 Wash.2d at 458, 938 P.2d 827. Federal precedent is persuasive, but not controlling. Nucleonics All., Local Union 1—369, Oil, Chem., & Atomic Workers Int'l Union, AFL-CIO v. Wash. Pub. Power Supply Sys., 101 Wash.2d 24, 32-33, 677 P.2d 108 (1984).

¶19 We review an appeal from the Commission's decision involving a ULP claim in accordance with the Administrative Procedure Act (APA), chapter 34.05 RCW. Lincoln County v. Pub. Emp't Relations Comm'n, 15 Wash. App. 2d 143, 150-51, 475 P.3d 252 (2020), review denied, 197 Wash.2d 1003, 483 P.3d 774 (2021). Under the APA, we may grant relief from an agency...