Green River Community College, Dist. No. 10 v. Higher Educ. Personnel Bd.
| Decision Date | 18 December 1986 |
| Docket Number | No. 52605-2,I,AFL-CI,52605-2 |
| Citation | 730 P.2d 653,107 Wn.2d 427 |
| Parties | , 124 L.R.R.M. (BNA) 3106, 36 Ed. Law Rep. 975 GREEN RIVER COMMUNITY COLLEGE, DISTRICT NO. 10, Appellant, v. HIGHER EDUCATION PERSONNEL BOARD, Respondent, Washington Federation of State Employees,ntervenor Respondent, and Cross Appellant. |
| Court | Washington Supreme Court |
Kenneth Eikenberry, Atty. Gen., Joel M Greene, Asst. Atty. Gen., Olympia, for appellant.
Kenneth Eikenberry, Atty. Gen., Richard A. Heath, Sr. Asst. Atty. Gen., Olympia, for respondent Higher Educ. Personnel Bd.
Dean A. Floyd, Tacoma, for intervenor-respondent and cross-appellant Washington Federation of State Employees.
Kenneth Eikenberry, Atty. Gen., Rick D. Woods, Asst. Atty. Gen., Seattle, amici curiae for appellant Highline Community College.
During labor negotiations the Green River Community College committed acts which were alleged to comprise an unfair labor practice. The Higher Education Personnel Board (HEP Board) held the acts were in fact an unfair labor practice. This decision was appealed by the college to the Superior Court, which dismissed as moot the substantive portion of the college's appeal. The court also remanded the HEP Board decision awarding attorney fees for reconsideration. The parties then sought appellate review. The Washington Federation of State Employees (WFSE) acted as an intervenor in the proceedings and appeals the trial court's remand of the award of attorney fees. We reverse the trial court on the issue of mootness, affirm the unfair labor practice decision, and uphold the award of attorney fees.
WFSE was designated the exclusive bargaining representative of the college classified employees in accordance with RCW 28B.16.100(11). On July 19, 1976, a dispute arose between the parties concerning the issue of paid release time to negotiate a proposed contract. Employee members of a negotiating committee receiving paid release time are able to participate in negotiations during working hours and receive their normal compensation. On December 8, 1976, the HEP Board's labor relations specialist conducted a meeting at the college following receipt of a request from WFSE for mediation of an impasse. The HEP Board specialist concluded that, pursuant to WAC 251-14-100, the request for mediation was premature, as there had been no collective bargaining impasse over articles in a proposed contract, but rather an impasse over an issue that concerned the arrangements for negotiations.
On February 16, 1977, WFSE filed an unfair labor practice charge with the HEP Board over the college's alleged refusal to negotiate on the release time issue. In the interim, on May 16, 1977, WFSE requested the HEP Board to schedule an arbitration hearing. The college filed suit in Thurston County Superior Court requesting a declaratory ruling on the authority of the HEP Board to engage in arbitration. The judge rendered an opinion upholding the validity of WAC 251-14-100 and -110, and an order to that effect was entered. The trial court decision was affirmed by this court in Green River Community College v. Higher Educ. Personnel Bd., 95 Wash.2d 108, 622 P.2d 826 (1980).
The matter went to arbitration under case No. HEPB-RA No. 9. Following the hearing, on August 30, 1978, the HEP Board issued an order dismissing the request for arbitration pursuant to WAC 251-14-110(1) because the dispute did not constitute a collective bargaining impasse, as the parties were deadlocked over a prenegotiation dispute. Nonetheless, the HEP Board proceeded to enter findings of fact, conclusions of law, and an order to the parties to commence bargaining immediately in good faith at reasonable times.
The parties failed to come to an agreement and WFSE filed a second unfair labor practice charge with the HEP Board in November 1978. On August 15, 1979, the HEP Board found the college guilty of an unfair labor practice for failing to bargain in good faith on the issue of paid release time. The HEP Board ordered the college to commence bargaining immediately in good faith and at reasonable times, and to pay WFSE's attorney fees and litigation costs. Following entry of the decision, the parties negotiated a contract which is in effect at the present time. The college did not, however, pay WFSE's litigation costs as ordered by the HEP Board.
The college filed a petition for review with the Superior Court on September 10, 1979. The trial court declined to reach the merits of the unfair labor practice charge, ruling that all issues would be moot if it were not for the issue of the award of attorney fees to WFSE. The trial court remanded the fee issue to the HEP Board for reconsideration of its award in light of State ex rel. Washington Fed'n of State Employees v. Board of Trustees, 93 Wash.2d 60, 605 P.2d 1252 (1980). The present appeals were then filed with the Court of Appeals, which transferred them to this court in accordance with RAP 4.3.
As a preliminary matter, WFSE notes that the college's brief does not comply with the rules of appellate procedure in that it fails to assign error to the administrative agency's findings of fact or conclusions of law. For this and other alleged irregularities, WFSE moves to dismiss the college's appeal or to strike the college's brief. Generally, an appellate court will only review claimed error included in an assignment of error. See Lehmann v. Board of Trustees, 89 Wash.2d 874, 576 P.2d 397 (1978). Scrupulous observance of RAP 10.3 and RAP 10.4 would require the college to cite to the HEP Board's findings and conclusions. However, under RAP 1.2(a) a " " State v. Williams, 96 Wash.2d 215, 220, 634 P.2d 868 (1981) quoting from Daughtry v. Jet Aeration Co., 91 Wash.2d 704, 710, 592 P.2d 631 (1979). The nature of the challenge is clear and the challenged findings are, in fact, set forth in the college's brief and we will turn to the merits.
Four issues are raised in this appeal: (1) Whether the subsequent negotiations and contract between the parties rendered the HEP Board's unfair labor practice finding moot; (2) If not, what standard of judicial review applies to the agency's findings and conclusions; (3) Under that standard, was the HEP Board correct in holding that the college committed an unfair labor practice in refusing to bargain in good faith over the issue of paid release time; (4) Whether the HEP Board abused its discretion in awarding attorney fees to WFSE.
Both the college and the HEP Board argue that the trial court erred in dismissing as moot that portion of the HEP Board's order finding that the college had committed an unfair labor practice. Following entry of the HEP Board's order, the college paid for some release time for negotiations over the contract currently in effect.
Both the HEP Board and the college analogize to a well-established body of federal labor law, and contend that an unfair labor practice appeal is not rendered moot by the passage of time or the subsequent compliance of the employer. We agree. In State ex rel. Washington Fed'n of State Employees v. Board of Trustees, supra, we held that Washington's Public Employees' Collective Bargaining Act, RCW 41.56, is substantially similar to the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169 (1976) (). While not controlling, decisions under the NLRA are persuasive in construing state labor acts which appear to be based on or are similar to the federal act.
In Massillon Pub. Co., 215 N.L.R.B. 380 (1974), the NLRB rejected an employer's argument that subsequent execution of a collective bargaining agreement mooted the issue of an unfair labor practice filed by a probationary employee who was excluded by the new agreement. In that case, the board strongly stated that it is entrusted with the protection of public rights under the NLRA and not merely with the settlement of private disputes.
[I]t is well settled that an employer's execution of a contract with a union with which it previously refused to bargain in violation of the Act [the NLRA] does not render the issue of such violation moot. [Southern Tours, Inc., 167 N.L.R.B. 363 (1967) ] This principle is premised on the theory that the Board does not oversee the settlement of private disputes but, rather, is entrusted with the responsibility of protecting public rights under the Act. These rights are not protected, and the effects of the unfair labor practices found are not expunged, merely because of a private settlement of the dispute by the parties, which may or may not serve to remedy the adverse effect on the Section 7 rights of the employees.
The HEP Board plays a role analogous to the NLRB. RCW 28B.16.230 requires the HEP Board to apply the unfair labor practice provision of RCW 41.56.140-.190 to classified employees of higher education institutions as part of a detailed statutory scheme to promote peaceful public employment relations. Public Employment Relations Comm'n. v. Kennewick, 99 Wash.2d 832, 836-37, 664 P.2d 1240 (1983). A violation of such public statutory rights is not cured simply because the offending party later conforms its conduct to the statutes.
The NLRB cases find support in a long line of United States Supreme Court cases holding that an employer's compliance with an NLRB order does not render the cause moot. See, e.g., NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970). Numerous cases in the 5th, 7th, 8th, 9th, and D.C. Circuits apply these United States Supreme Court decisions holding that...
To continue reading
Request your trial
-
Multicare Medical Center v. State, Dept. of Social and Health Services
...when the agency is charged with the responsibility for administering the statute. Green River Comm'ty College Dist. 10 v. Higher Educ. Personnel Bd., 107 Wash.2d 427, 438, 730 P.2d 653 (1986); Moses v. Department of Social & Health Servs., 90 Wash.2d 271, 274, 581 P.2d 152 (1978). Here, we ......
-
Jongeward v. BNSF Ry. Co.
...Thus, these states' interpretations are persuasive in interpreting our own statute. See Green River Cmty. Coll., Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wash.2d 427, 432, 730 P.2d 653 (1986); cf. State v. Carroll, 81 Wash.2d 95, 109, 500 P.2d 115 (1972). Oregon has long interpreted the ......
-
Tiffany Family Trust Corp. v. City of Kent
...it is so totally devoid of merit that there was no reasonable possibility of reversal." Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Personnel Bd., 107 Wash.2d 427, 442-43, 730 P.2d 653 (1986) (quoting Streater v. White, 26 Wash.App. 430, 434-35, 613 P.2d 187 (1980)). We find that t......
-
Eugster v. City of Spokane
...Pursuing a frivolous appeal justifies the imposition of terms and compensatory damages. Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wash.2d 427, 442-43, 730 P.2d 653 (1986) (quoting Boyles v. Dep't of Ret. Sys., 105 Wash.2d 499, 509, 716 P.2d 869 (1983) (Utter, J., c......
-
Table of Cases
...19.5(7) Green v. Lupo, 32 Wn. App. 318, 647 P.2d 51 (1982): 19.2(2)(a) Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 730 P.2d 653 (1986): 16.3(13) Greenwood v. Olympic, Inc., 51 Wn.2d 18, 315 P.2d 295 (1957): 19.3(2), 19.3(5)(d) Grill v. Meydenbauer Bay Yach......
-
Table of Cases
...Greening, In re, 141 Wn.2d 687, 9 P.3d 206 (2000): 24.5(1)(c), 24.6(1), 24.6(2)(a) Green River Cmty. Coll. v. Higher Educ. Personnel Bd., 107 Wn.2d 427, 730 P.2d 653 (1986): 17.7(7) Greer v. Nw. Nat'l Ins. Co., 36 Wn. App. 330, 674 P.2d 1257 (1984), aff'd in part, rev'd in part, 109 Wn.2d 1......
-
§ 16.3 - Litigation Under the Land Use Petition Act
...law and is reviewable de novo. Leschi Improve. Council, 84 Wn.2d at 284; Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 434-35, 730 P.2d 653 Under LUPA "[t]he court may affirm or reverse the land use decision under review or remand it for modifications or fur......
-
§ 17.7 Rejuesting Appellate Fees
...if it raises other issues about which the outcome is not debatable. See, e.g., Green River Cmty. College v. Higher Educ. Personnel Bd., 107 Wn.2d 427, 443, 730 P.2d 653 (1986). An appeal is not frivolous if an appellant can cite a reasonably applicable case in support of his or her argument......