International Ass'n of Fire Fighters, Local 1445 v. City of Kelso

• Decision Date: 01 May 1990
• Docket Number: No. 12685-1-II,12685-1-II
• Parties: INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1445, Appellant, v. CITY OF KELSO, Cross-Appellant and Respondent, and Public Employment Relations Commission, an agency of the State of Washington, Respondent.
• Court: Washington Court of Appeals

Page 721

57 Wn.App. 721

790 P.2d 185

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1445, Appellant, v. CITY OF KELSO, Cross-Appellant and Respondent, and Public Employment Relations Commission, an agency of the

State of Washington, Respondent.

No. 12685-1-II.

Court of Appeals of Washington,

Division 2.

May 1, 1990.

Mark E. Brennan, Webster, Mrak & Blumberg, Seattle, for appellant.

Kenneth O. Eikenberry, Atty. Gen., and Richard A. Heath, Sr. Asst. Atty. Gen., Olympia, for Public Employment Relations Com'n.

Mark W. Berry, Larry E. Halvorson, Davis, Wright & Jones, Bellevue, Patrick L. Brock, Borders & Brock, Kelso, for City of Kelso.

WORSWICK, Judge.

The Kelso city government has never gotten on well with its firefighters' union, International Association of Firefighters, Local 1445. Perhaps partly because of this troubled relationship, the city decided to turn over its fire protection services to Cowlitz County Fire Protection District No. 2 by annexing to the district pursuant to RCW 52.04. ¹ The city's decision and related activity brought on litigation between the city and the union before the Public Employment Relations Commission. The union now appeals and the city cross-appeal PERC's decision and order that found unfair labor practices by the city. ²

The union contends that PERC's "make whole" remedy for the city's unfair labor practices was inadequate. The city contends that it committed no such practices. The parties' many detailed contentions will be disposed of by our resolution of three issues: (1) when annexation of the city to the fire district became effective; (2) whether the record supports PERC's decision that the city committed an unfair labor practice by discharging two firefighters; and (3) whether the city's refusal to engage in "interest arbitration" was an unfair labor practice. We hold that annexation became effective upon certification of the annexation election, that PERC's decision concerning discharge of the firefighters was supported by the record, and that the city's refusal to engage in interest arbitration was not an unfair labor practice. Accordingly, we affirm part and reverse part of PERC's order.

There was a history of bitter labor relations between the parties, occasionally portrayed in the local press. The record and PERC's unchallenged findings of fact show that the city and the union had been parties to a series of collective bargaining agreements, the latest of which had not been signed until July 30, 1985, although it covered the period January 1, 1984 to December 31, 1986. In fact, during late 1983 and throughout 1984 and 1985, the parties had negotiated to replace an agreement that expired December 31, 1983.

As a result of several disputes between 1982 and 1984, the city had earlier attempted to fulfill its fire suppression requirements by contracting with the fire district, the union had filed unfair labor practices claims under RCW 41.56, and PERC had ruled that the city's attempt to obtain services from the district was a mandatory subject of collective bargaining and that the city had failed to bargain. International Ass'n of Firefighters, Local 1445 v. City of Kelso, Pub. Empl. Relations Comm'n Dec. 2120 PECB (1984), aff'd, PERC Dec. 2120-A PECB (1985). In addition to this favorable ruling from PERC, the union had obtained a superior court injunction in Cowlitz County prohibiting the city from contracting for suppression services with the district.

Soon after this round of litigation, the city laid off its two most junior firefighters, Dean Bolden and Robert Stephenson, claiming a budgetary shortfall. The union filed a new complaint with PERC, alleging that the layoffs were retaliatory and that the city refused to respond to requests to bargain the layoffs. This complaint was pending when, on August 6, 1985, the city announced its intent to annex to the fire district. Proceeding with its annexation plans, the city passed the required ordinance and the fire district passed the required resolution. The Cowlitz County Boundary Review Board approved annexation, and the proposal was placed on the general election ballot for November 5, 1985.

The union demanded bargaining of both the decision to annex and its effects. ³ When the parties met in September 1985, the union proposed that, if annexation occurred, all city firefighters be guaranteed positions with the fire district. The parties failed to agree, and the union requested PERC mediation. Mediation failed, and PERC declared an impasse and referred to interest arbitration the "annexation effects" issues of (1) interim employment and/or severance pay for firefighters displaced by the annexation, and (2) recall rights for firefighters displaced by the annexation should the city reinstate its fire department. See RCW 41.56.430, et seq. Interest arbitration was, however, held in abeyance pending PERC's decision on the union's other complaints against the city.

Meanwhile, the voters approved annexation in the November 1985 general election. On November 14, 1985, four days before the election results were certified, the city notified its remaining firefighters that they would be laid off effective December 1, 1985. The fire district assumed responsibility for Kelso fire protection beginning December 1, 1985, pursuant to an oral contract with the city, although the district would not be entitled to tax revenue from city territory until January 1987. See RCW 84.09.030.

The issues raised by the union's PERC complaint were presented to a hearings examiner. The examiner entered findings of fact and conclusions of law and essentially ordered the city to: (1) cease and desist from interfering with former firefighter employees in the exercise of their collective bargaining rights; (2) make Bolden and Stephenson whole for the layoff period of February 1, 1985, to December 31, 1986; (3) make whole fire suppression personnel laid off after annexation for wages and benefits lost between December 1, 1985, and December 31, 1986; (4) bargain the effects of annexation and proceed to interest arbitration if an impasse was reached; (5) reimburse the union for costs and reasonable attorney fees. International Ass'n of Firefighters, Local 1445 v. City of Kelso, Pub. Empl. Relations Comm'n Dec. 2633 PECB (1988). Both parties sought PERC review of the Examiner's decision.

On October 17, 1988, PERC issued a decision that altered the examiner's in only two respects: it found that the Bolden and Stephenson layoffs were in retaliation for their complaints of unfair labor practices, and it concluded that the city committed unfair labor practices in laying off Bolden and Stephenson on the pretext of a budget shortfall and in refusing to bargain the layoffs. International Ass'n of Firefighters, Local 1445 v. City of Kelso, Pub. Empl. Relations Comm'n Dec. 2633-A PECB (1988).

The major economic issues in the case, PERC's make whole remedies for all firefighters including the two junior men laid off first, are controlled by a determination of when annexation became effective. ⁴ PERC accepted the union's contention that the effective date of annexation was within the city's discretion, and that the district had no obligation to assume fire protection services until it was entitled to tax revenue from the city territory. This conclusion underpinned the requirement that the firefighters be compensated through December 31, 1986. We agree with the city that annexation became effective upon certification of the election, and that PERC committed an error of law in holding otherwise. ⁵

The interpretation of a statute is a question of law for the court. Codd v. Stevens Pass. Inc., 45 Wash.App. 393, 398, 725 P.2d 1008 (1986), review denied, 107 Wash.2d 1020 (1987). Under RCW 34.04.130(6)(d), issues of law are reviewed de novo, and the reviewing court may substitute its judgment for that of the administrative body. Franklin County Sheriff's Office v. Sellers, 97 Wash.2d 317, 325, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983).

In its present version, the pertinent portion of the annexation statute, RCW 52.04.071, says nothing about the effective date of annexation, but only that

[i]f a majority of the persons voting on the proposition in the city or town and a majority of the persons voting on the proposition in the fire protection district vote in favor thereof, the city or town shall be annexed and shall be a part of the fire protection district. ⁶

We hold, however, that this language makes annexation of a contiguous city or town to a fire district effective upon certification of the election results.

RCW 52.04 was amended in 1984 to "[m]odernize archaic language and obsolete references in sections involving fire protection." Laws of 1984, ch. 230, § 16; Legislative Digest and History of Bills, 48th Session 1983-84, p. 613 (No. 4; final edition). This cosmetic surgery left an unfortunate scar: clear legislative intent was obscured, because the amendment removed the word "thereupon" from the critical language, which had read "the city or town shall thereupon be annexed and shall be part of the fire protection district." (Emphasis ours). Under the pre-amendment wording, annexation clearly was effective immediately upon certification of the vote. An undefined word in a statute is given its ordinary meaning. State ex rel. Graham v. Northshore School Dist. No. 417, 99 Wash.2d 232, 244, 662 P.2d 38 (1983). "Thereupon" means "immediately ...; at once." Webster's New World Dictionary 1475 (2nd college ed. 1976). The usual presumption that a change in statutory language shows a change of legislative intent is overcome by the stated purpose of the amendment. See Fisher Flouring Mills Co. v. State, 35 Wash.2d 482, 213 P.2d 938 (1950); State v. Alberts, 51 Wash.App. 450, 754 P.2d 128, review denied, 111 Wash.2d 1006 (1988); 1A C. Sands, Statutory Construction § 22.31 (4th ed. rev. 1985). Nothing in...