CLARK COUNTY PUD NO. 1 v. Wilkinson

CourtUnited States State Supreme Court of Washington
Citation991 P.2d 1161,139 Wash.2d 840
Decision Date03 February 2000
Docket NumberNo. 67533-3.,67533-3.
PartiesCLARK COUNTY PUBLIC UTILITY DISTRICT NO. 1, d/b/a Clark Public Utilities, Petitioner, v. Jane R. WILKINSON, Labor Arbitrator, Defendant, and International Brotherhood of Electrical Workers, Local 125, Respondent.

Davis, Wright & Tremaine, Henry F. Farber, and Jeffrey Bennett Youmans, Seattle, for Petitioner.

Hafer, Price, Rinehart & Robblee, Richard Howard Robblee and Anne Elizabeth Senter, Seattle, Bennett, Hartman & Reynolds, John S. Bishop, Portland, Or., for Respondent.


We must decide in this case the appropriate time limit for filing petitions for constitutional writs of certiorari seeking review of public employment arbitration awards. In this case, even though the public utility district (PUD) filed its petition for review in superior court some six months after the arbitrator's original award and nearly four months after the arbitrator modified a portion of the award, the trial court held the PUD was still entitled to judicial review of the award by constitutional writ of certiorari. By contrast, the Court of Appeals applied by analogy the three-month period for vacating arbitration awards, established in the arbitration act, RCW 7.04.180, to the PUD's petition and found it untimely. We reverse the Court of Appeals, but remand the case to the trial court for a determination of whether the petition was filed within a reasonable time.


(1) Did the Court of Appeals err when it applied by analogy a 90-day statutory time limit to the PUD's petition for a constitutional writ of certiorari?

(2) Did the arbitrator exceed her authority when she ordered the PUD to place laid-off union employees in positions outside of the collective bargaining unit?

(3) Did the PUD waive its claim that the arbitrator exceeded her authority by failing to present the issue to the arbitrator?


Clark County Public Utility District No. 1 is a municipal corporation providing public utilities, including electrical power, to Clark County residents. The International Brotherhood of Electrical Workers, Local 125 (Union) is a labor organization representing certain employees of the PUD. The PUD and the Union are parties to a collective bargaining agreement (CBA) governing the terms and conditions of employment of the represented employees.

On March 21, 1996, the PUD laid off 10 employees covered by the CBA. Pursuant to the CBA, the Union submitted a grievance to the PUD on behalf of the laid-off employees, contending the CBA specifically incorporated provisions of the PUD Personnel Policy Manual, which allegedly mandated placement of laid-off PUD workers in any available position within the PUD staff, even outside the Union's bargaining unit. The parties were unable to resolve the grievance between themselves, so they submitted the matter to arbitration pursuant to the procedures established in the CBA.1

The mutually selected arbitrator held a hearing on September 18, 1996, and issued her opinion and award on December 11, 1996. The award required the PUD to place 3 of the 10 grievants into non-CBA positions and to pay those grievants back pay and benefits from the dates they should have been offered the relevant positions. The arbitrator also retained jurisdiction over the remedial aspects of her decision until March 11, 1997.

On January 20, 1997, the PUD sought reconsideration of the arbitrator's decision with respect to one of the grievants on the ground she was not qualified for the nonunit position she had been awarded at arbitration; the PUD did not seek reconsideration of the award as to the other two employees. On February 28, 1997, the arbitrator granted the PUD's motion for reconsideration and amended the award, which now required the PUD to place only two of the grievants into non-CBA positions.

The Union wrote to the PUD on March 27, 1997, demanding compliance with the arbitrator's award. Allegedly, the PUD neither responded to the letter nor acted in compliance with the award.

Thereafter, on June 11, 1997, the PUD filed a Verified Petition for Constitutional Writ of Certiorari and for Review of the Arbitrator's Decision in Clark County Superior Court. The PUD asked the court to review and vacate the arbitrator's award because it was arbitrary and capricious, and in excess of her authority under the CBA. Specifically, the PUD contended the arbitrator had no authority under the CBA to place Union members in positions outside the bargaining unit. The Union filed an answer and counterclaimed for enforcement of the award, arguing the PUD's petition was untimely2 and the PUD waived the issue of the arbitrator's authority by failing to expressly assert it to the arbitrator. The trial court ruled in favor of the PUD and granted the writ of certiorari, vacating the arbitration award and denying the Union's counterclaim for enforcement. The trial court expressly ruled the arbitrator acted beyond her authority and the PUD had not waived the issue. It also held the PUD's petition was timely, although the basis for the timeliness decision is not readily apparent, as the trial court's written order is silent on the issue of timeliness. The only reference to timeliness in the trial court's oral decision is this summary reference:

Let me indicate to you, Counsel, that I've looked at it, I've thought about it. I feel that your position is correct, Mr. Farber [the PUD's attorney].... I'm not too concerned about the manual as you're not and I will go along with your argument on timeliness. I've got to or I would have to rule in favor of Mr. Bishop [the Union's attorney]. So I will grant your motion, Counsel.

Report of Proceedings at 18.

The Union appealed the trial court's decision to the Court of Appeals, Division Two, which reversed the trial court order because the PUD's petition was untimely. The Court of Appeals determined the trial court should have applied by analogy the three-month period for vacating arbitration awards, established by RCW 7.04.180, to the PUD's application for a constitutional writ of certiorari. Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 93 Wash.App. 350, 967 P.2d 1270 (1998). In determining the PUD's petition was untimely, the court did not reach the merits of the arbitrator authority or waiver issues. The PUD petitioned us for review, which we granted.


Washington law on the applicable time limits governing writs of certiorari, both statutory and constitutional, has not always been a picture of clarity. We believe the nature of the writ sought by the petitioner governs the applicable limitation period.

Washington law clearly indicates a distinction between statutory and constitutional writs of certiorari. In general, certiorari is available to provide for judicial review where there is a "statutory and contractual hiatus" that provides no clearly articulated mechanism for obtaining judicial review of a decision. Grays Harbor County v. Williamson, 96 Wash.2d 147, 150-53, 634 P.2d 296 (1981).

A court will issue a statutory writ of review, pursuant to chapter 7.16 RCW, if the petitioner can show that (1) an inferior tribunal or officer (2) exercising judicial functions (3) exceeded its jurisdiction or acted illegally, and (4) there is no other avenue of review or adequate remedy at law. See RCW 7.16.040; Bridle Trails Community Club v. City of Bellevue, 45 Wash.App. 248, 253, 724 P.2d 1110 (1986). If any of the factors is absent, then there is no basis for superior court review. See Bridle Trails, 45 Wash.App. at 252,

724 P.2d 1110; see also Raynes v. City of Leavenworth, 118 Wash.2d 237, 821 P.2d 1204 (1992) (statutory writ granted only when all four factors are present). But if these factors are shown, review is mandatory. See RCW 7.16.040;3

see also Erection Co. v. Department of Labor & Indus., 121 Wash.2d 513, 518, 852 P.2d 288 (1993) (noting the word "shall" in a statute is presumptively imperative and operates to create a duty unless a contrary legislative intent is apparent).

By contrast, the constitutional writ of certiorari embodied in article IV, section 6 (amendment 87) of the Washington Constitution4 is available in somewhat narrower circumstances. See Bridle Trails, 45 Wash. App. at 253,

724 P.2d 1110; see also Saldin Sec., Inc. v. Snohomish County, 134 Wash.2d 288, 294-95, 949 P.2d 370 (1998) (a court may grant a constitutional writ if no other avenue of appeal, such as a statutory writ, is available). Under article IV, section 6 (amendment 87), a superior court possesses the power to review arbitrary decisions by issuing constitutional writs of certiorari. See Saldin, 134 Wash.2d at 292,

949 P.2d 370. The purpose of such a writ is "to enable a court of review to determine whether the proceedings below were within the lower tribunal's jurisdiction and authority." Id. (citing Bridle Trails, 45 Wash.App. at 252-53,

724 P.2d 1110). Thus, a court will accept review only if the petitioner can allege facts that, if verified, establish the lower tribunal's decision was arbitrary and capricious or illegal. See Saldin, 134 Wash.2d at 294,

949 P.2d 370; Pierce v. King County, 62 Wash.2d 324, 333, 382 P.2d 628 (1963). But this form of review lies entirely within the trial court's discretion. Bridle Trails, 45 Wash.App. at 252,

724 P.2d 1110.5 The Legislature may not intrude by statute on this constitutional power. See North Bend Stage Line, Inc. v. Department of Public Works, 170 Wash. 217, 228, 16 P.2d 206 (1932); State ex rel. Cosmopolis Consol. Sch. Dist. 99 v. Bruno, 59 Wash.2d 366, 369, 367 P.2d 995 (1962).6

In the present case, review by certiorari is appropriate initially because there is no statutory mechanism for judicial review of public employment labor arbitrations. Although RCW 41.56.122(2) provides for binding arbitration in public employee labor disputes, it does not provide for judicial review of such...

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