Decision Date28 March 2002
Docket NumberNo. 70344-2.,70344-2.
Citation146 Wash.2d 29,42 P.3d 1265
CourtWashington Supreme Court
PartiesINTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 46, an unincorporated voluntary association, Curt Rider and Tim Key, Respondents, v. CITY OF EVERETT, a municipal corporation, Petitioner.

Charles Eberhardt, Paul Smith, Bellevue, Mark Soine, Everett, for Appellant.

Janet K. May, Des Moines, Amicus Curiae.

James Webster, Lynn Weir, Seattle, for Respondent.


The City of Everett seeks reversal of a decision by the Court of Appeals, Division One, awarding attorney fees pursuant to RCW 49.48.030 to the International Association of Fire Fighters, Local 46, for a successful grievance arbitration action on behalf of union members Curt Rider and Tim Key. We hold that RCW 49.48.030 provides for an award of attorney fees to a labor union that successfully recovers wages or salaries owed to its employee members in a labor arbitration proceeding.


The relevant facts are undisputed. In June 1997, the City of Everett (City) suspended Rider and Key from their employment without pay for a 24 hour shift for willfully tampering with and damaging the electrical system at the fire station where they were assigned. The International Association of Fire Fighters, Local 46 (Local 46), on behalf of Rider and Key, brought a grievance proceeding against the City, arguing that the suspensions violated the collective bargaining agreement (CBA) between the City and Local 46.1

Pursuant to the grievance procedure in the CBA, Local 46 and the City submitted the dispute to arbitration. During the two day arbitration proceeding, Local 46 was represented by counsel. Neither Rider nor Key retained separate counsel. The arbitrator ruled that the City had violated the CBA by suspending Rider and Key without pay and ordered the City to set aside the suspensions and to award back pay. The City complied with the arbitrator's order.

Following the arbitration proceeding, Local 46 requested the City to pay the attorney fees incurred from challenging the suspensions. The City refused. Local 46, Rider, and Key then filed a complaint against the City in Snohomish County Superior Court seeking recovery of the attorney fees. Both sides moved for summary judgment. The trial court denied Local 46's motion and granted the City's. Local 46, Rider, and Key appealed.2

The Court of Appeals, Division One, held that Local 46 was entitled to attorney fees pursuant to RCW 49.48.030, which provides for attorney fees to any person who successfully recovers wages or salary owed for bringing a successful grievance arbitration on behalf of Rider and Key.3 The court examined whether the term "any person" in RCW 49.48.030 included unions. Id. The court found the term ambiguous because the statute does not require that an employee initiate the action and, at the time the statute was amended, it was common practice for collective bargaining agreements to provide that unions bring grievances to arbitration on behalf of their members.4 Thus, the court concluded, the Legislature must have intended that unions could recover attorney fees under RCW It also found that this position was consistent with the determination that "RCW 49.48.030 is a remedial statute that should be liberally construed to effect its purpose."6

The court reversed and remanded the case for calculation of attorney fees for the arbitration and all superior and appellate court proceedings.7 We granted the City's petition for review.


RCW 49.48.030 was first enacted in 1888 and took its current form in 1971. It states:

In any action in which any person is successful in recovering judgment for wages or salary owed to him, reasonable attorney's fees, in an amount to be determined by the court, shall be assessed against said employer or former employer: PROVIDED, HOWEVER, That this section shall not apply if the amount of recovery is less than or equal to the amount admitted by the employer to be owing for said wages or salary.

RCW 49.48.030.

The City argues that the Court of Appeals decision conflicts with this court's holding that courts must enforce the plain meaning of unambiguous statutes. The plain meaning rule requires courts to derive the meaning of the statute from the "wording of the statute itself." Rozner v. City of Bellevue, 116 Wash.2d 342, 347, 804 P.2d 24 (1991). Only if the statute is determined to be ambiguous, will a court look to the legislative intent in enacting it. State v. Thorne, 129 Wash.2d 736, 762, 921 P.2d 514 (1996). However, the City seems to ignore the remedial nature of RCW 49.48.030 and the rules of construction that Washington courts have attached to it.

RCW 49.48.030 is a remedial statute, which should be construed liberally to effectuate its purpose. See Gaglidari v. Denny's Rests., Inc., 117 Wash.2d 426, 450-51, 815 P.2d 1362 (1991)

(recognizing statute's remedial nature and liberal construction requirement); Naches Valley Sch. Dist. No. JT3 v. Cruzen, 54 Wash.App. 388, 399, 775 P.2d 960 (1989). A liberal construction requires that the coverage of the statute's provisions "`be liberally construed [in favor of the employee] and that its exceptions be narrowly confined.'" Peninsula Sch. Dist. No. 401 v. Pub. Sch. Employees, 130 Wash.2d 401, 407, 924 P.2d 13 (1996) (interpreting chapter 41.56 RCW) (quoting Nucleonics Alliance, Local Union 1-369 v. Wash. Pub. Power Supply Sys., 101 Wash.2d 24, 29, 677 P.2d 108 (1984)).

"When interpreting statutory language, the goal of the court is to carry out the intent of the Legislature." Ellerman v. Centerpoint Prepress, Inc., 143 Wash.2d 514, 519, 22 P.3d 795 (2001) (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 6, 721 P.2d 1 (1986)). "In ascertaining this intent, the language at issue must be evaluated in the context of the entire statute." Id.

We have previously recognized Washington's "long and proud history of being a pioneer in the protection of employee rights." Drinkwitz v. Alliant Techsystems, Inc., 140 Wash.2d 291, 300, 996 P.2d 582 (2000). The Legislature "evidenced a strong policy in favor of payment of wages due employees by enacting a comprehensive [statutory] scheme to ensure payments of wages." Schilling v. Radio Holdings, Inc., 136 Wash.2d 152, 157, 961 P.2d 371 (1998) (referencing RCW 49.48.030). "[A]ttorney fees are authorized under the remedial statutes to provide incentives for aggrieved employees to assert their statutory rights." Hume v. Am. Disposal Co., 124 Wash.2d 656, 673, 880 P.2d 988 (1994). Furthermore, remedial statutes "should be liberally construed to advance the Legislature's intent to protect employee wages and assure payment." Ellerman, 143 Wash.2d at 520, 22 P.3d 795. Therefore, the terms of RCW 49.48.030 must be interpreted to effectuate this purpose.

In light of the liberal construction doctrine, Washington courts have interpreted RCW 49.48.030 broadly. Attorney fees are recoverable under RCW 49.48.030 for breach of an employment contract, Gaglidari, 117 Wash.2d at 450,815 P.2d 1362; Kohn v. Georgia-Pacific Corp., 69 Wash.App. 709, 727, 850 P.2d 517 (1993) and more specifically, for the breach of a labor contract, Naches Valley, 54 Wash.App. at 399,775 P.2d 960. The term "wages or salary owed" in RCW 49.48.030 has been construed to include back pay, Gaglidari, 117 Wash.2d at 449-50,815 P.2d 1362; front pay, Hayes v. Trulock, 51 Wash.App. 795, 806, 755 P.2d 830 (1988); reimbursement for sick leave, Naches Valley, 54 Wash.App. at 398,775 P.2d 960; and commissions, Dautel v. Heritage Home Center, Inc., 89 Wash.App. 148, 151-53, 948 P.2d 397 (1997).

Furthermore, we have held that an award of attorney fees to employees who successfully recover wages or salary owed should not be reduced by the amount contributed to the employees by their union. Hume, 124 Wash.2d at 673, 880 P.2d 988 (awarding attorney fees under RCW 49.48.030). In Hume, we stated that "because attorney fees are authorized under the remedial statutes to provide incentives for aggrieved employees to assert their statutory rights, it would be counterproductive to reduce attorney fee awards based on union support." Id.

Definition of "Action"

The Court of Appeals relied on Hitter v. Bellevue School District No. 405, 66 Wash. App. 391, 399, 832 P.2d 130 (1992) in concluding that "[t]here is no question that the arbitration was an `action' and the arbitrator's ruling was a `judgment' under RCW 49.48.030." Fire Fighters, 101 Wash.App. at 746 n. 4, 6 P.3d 50.8 In Hitter, the plaintiff union member successfully challenged a disciplinary action as a violation of his collective bargaining agreement and was entitled to back pay. Hitter, 66 Wash.App. at 394-95, 832 P.2d 130. Although the Hitter court held that RCW 49.48.030 applied to arbitration proceedings, it found that the plaintiff had waived his right to attorney fees through his collective bargaining agreement, which expressly stated that each side would pay his own fees. Id. at 397, 832 P.2d 130.

Now, for the first time, the City asserts that the term "action" in RCW 49.48.030 does not include arbitration proceedings.9 Specifically, the City argues that the decision below and Hitter are in conflict with Thorgaard Plumbing & Heating Co. v. King County, 71 Wash.2d 126, 426 P.2d 828 (1967) and the common law definition of "action."

This court will generally decline to decide issues that were not raised below. State v. Clark, 124 Wash.2d 90, 104-05, 875 P.2d 613 (1994); RAP 2.5(a). The reasons for this rule are well settled: (1) to ensure that "an appellant `ha[s] an opportunity to elect to stand on his theory or apply to the court to amend his theory and present some other one';" and (2) to "encourage parties to raise issues before the Court of Appeals, thereby ensuring the `benefit of developed arguments on both sides and lower court opinions squarely addressing the...

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