International Federation of Professional and Technical Engineers, AFL-CIO, Local 17 v. State Personnel Bd.

• Decision Date: 22 April 1987
• Docket Number: AFL-CI,LOCAL,No. 8285-3-II,8285-3-II
• Citation: 736 P.2d 280,47 Wn.App. 465
• Court: Washington Court of Appeals
• Parties: INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,17, Appellant, v. STATE PERSONNEL BOARD, Carol Westine, Chairman, Ludwig Lobe, Vice-Chairman, and Della Newman, Member; Washington State Department of Personnel and Washington State Department of Transportation, Respondents.

Page 465

47 Wn.App. 465

736 P.2d 280

INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, LOCAL 17, Appellant, v. STATE PERSONNEL BOARD, Carol Westine, Chairman, Ludwig Lobe Vice-Chairman, and Della Newman, Member; Washington State Department of Personnel and Washington State Department of Transportation, Respondents.

No. 8285-3-II.

Court of Appeals of Washington Division 2.

April 22, 1987.

As Amended on Denial of Reconsideration

May 29, 1987.

Richard D. Eadie, Edmonds, for appellant.

Richard A. Heath, Asst. Atty. Gen., Olympia, for respondents.

PETRICH, Judge.

The International Federation of Professional and Technical Engineers, Local 17, AFL-CIO, (the Union), appeals a superior court order that affirmed a decision of the Washington State Personnel Board (Board) and denied a request for a declaratory judgment. The Board's decision had affirmed the Department of Personnel's decision not to issue an unfair labor practice complaint against the State Department of Transportation (Transportation) based on a charge that Transportation had refused to engage in collective bargaining with the Union. The request for declaratory judgment sought to invalidate the Board's rule defining the term "collective bargaining." With respect to the claimed invalidity of the Board's rule defining collective bargaining, the issue is whether the regulation, which varies in some particulars from the statutory definition of the term, is so contrary to the statutory term as to be invalid. With respect to the Board's decision, the primary issue is the appropriate standard of review of that decision and whether the decision should be affirmed or reversed under that standard of review.

We conclude that the Board's rule defining collective bargaining between the employing agency and the bargaining representative employee is substantially the same as the statutory definition and therefore is valid. We also conclude that the Board's decision affirming the Personnel Department's refusal to issue an unfair labor practice complaint is subject to review for arbitrary and capricious action under the court's inherent power of review, Washington Constitution, Article 4, section 1, and that the Board's decision was not arbitrary and capricious. Accordingly, we affirm the Board's decision and the court's dismissal of the Union's request for declaratory judgment.

The Union is the certified exclusive bargaining representative of Transportation's employees who are in the Transportation Engineer 1 job classification, (TE-1). Nevertheless, during the proceedings described herein and until the unfair labor practice charge was filed, no union contract was under negotiation and none had been proposed.

In February 1978, Transportation began to formulate a training program. On October 2, 1978, Transportation requested that the Department of Personnel designate all TE-1 positions as "in-training." Transportation notified the Union of this request.

Almost one year later, on January 9, 1979, Transportation gave the Union a copy of a memo from the Department of Personnel that indicated that Transportation was establishing a training program. More than two weeks later, the Union notified both Transportation and the Department of Personnel that it considered the training program a bargainable issue. Then on March 1, 1979, Transportation and the Union met with Personnel Department staff to consider the in-training designation request. The Personnel Department subsequently approved the request on March 6, 1979. The Union protested the approval by letter dated March 9 1979.

On April 19, 1979, Transportation sent the Union a copy of Transportation's proposed directive on the training program. The Union reviewed the directive with Transportation on May 1, 1979. At that time, June 1 was discussed as a completion date for solicitation of member input with regard to the directive, and July 1 was discussed as an intended implementation date.

On June 6, 1979, the Union sent a letter to Transportation that listed several proposals concerning the training program and suggested a meeting on June 18, 1979 for the purpose of resolving the differences by negotiation. Then, on June 14, 1979, Transportation sent a letter to the Union indicating that the program would be implemented on July 1, 1979.

In response, the Union filed an unfair labor practice charge with the Department of Personnel on June 29, 1979. The charge alleged that Transportation had committed an unfair labor practice by refusing to engage in collective bargaining.

Former WAC 356-42-080(3), then applicable, provided:

Upon receipt of an unfair labor practice charge, the Board or its designee shall conduct an investigation to determine whether or not the charges are frivolous or substantially without merit. If it is found that the charges are not frivolous or are not without substantial merit, a complaint shall be issued and a hearing scheduled, as provided by the Rules.

The Department of Personnel, as the Board's designee, after investigation of the charge, determined that the charge lacked merit and decided not to issue a complaint.

The Union then appealed to the Board, which granted Transportation's motion to dismiss the appeal on the basis of mootness. The Union then sought review from the superior court. The superior court reversed the Board's dismissal and remanded the matter for hearing.

Subsequent to the hearing, the Board on June 30, 1982 again issued an order dismissing the Union's unfair labor practice charge. This order stated that an unfair labor practice had not occurred and affirmed the Department of Personnel's decision not to issue an unfair labor practice complaint. The Union then sought review of the Board's decision by the superior court, coupled with a claim for declaratory relief to invalidate the Board's rule defining collective bargaining. The superior court affirmed the Board's decision and denied the request to declare invalid the Board's regulation defining collective bargaining. The Union now appeals to this court.

Board's Rule Defining Collective Bargaining

The Union contends the Board exceeded its authority in adopting WAC 356-06-010 ¹ defining collective bargaining for state employees and their employing agency. The Union does not question the Board's authority to adopt a rule defining the term. However, it contends that the definition adopted by the Board conflicts with the legislative definition of the term found in RCW 41.56.030(4) ² and that the Board thereby exceeded its authority. We disagree.

Administrative rules are presumed to be valid and should be upheld on judicial review if they are reasonably consistent with the legislative directive. Fahn v. Cowlitz Cy., 93 Wash.2d 368, 374, 610 P.2d 857 (1980). A party attacking the validity of an administrative rule has the burden of presenting compelling reasons that the rule is in conflict with the legislative purpose. Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314-17, 545 P.2d 5 (1976). Finally, a rule should be interpreted so that it is not void. Hayes v. Yount, 87 Wash.2d 280, 290, 552 P.2d 1038 (1976).

The Union argues that the difference in terminology creates an irreconcilable conflict between the two definitions. It points out: that while the statutory definition requires the parties to meet at reasonable times and to confer and negotiate in good faith, the rule's definition merely requires the parties to meet in an attempt to reach an agreement; that while the statute identifies the issues to be bargained as grievance procedures and personnel matters including wages, hours, and working conditions, the rule simply identifies the issues as all personnel matters over the which appointing authority may exercise discretion; and while the statute mandates a written agreement on the issues, the rule merely requires the parties to attempt to reach an agreement on such issues.

We conclude that, notwithstanding a difference in terminology, the two definitions are substantially the same. Implicit in the obligation to meet as defined in the rule is the obligation to meet at reasonable times as required by the statute. The obligation to attempt to reach an agreement as required by the rule requires that the parties confer and negotiate; otherwise there could be no attempt to reach an agreement. The absence of the term "good faith" in the rule does not create a substantial variance between the two definitions. Just as there is an implied covenant of good faith and fair dealing in every contract, Miller v. Othello Packers, Inc., 67 Wash.2d 842, 410 P.2d 33 (1966), we are satisfied that implicit in the requirement to attempt to reach an agreement is the obligation to do so in good faith. The rule's identification of the bargainable issues as all personnel matters over which the appointing authority may exercise discretion is broad enough to embrace the bargainable issues specified in the statute. Finally, while the statute mandates the execution of a written agreement, that directive is tempered by the admonition that neither party shall be compelled to agree or be compelled to make a concession. The rule accomplishes the same objective by simply requiring the parties to attempt to reach an agreement. Once an agreement is reached, however, the required formality of the statute that it be in writing must be complied with.

In the face of the presumed validity of the rule, we are satisfied that the Union has not demonstrated compelling reasons why the rule conflicts with the legislative purpose. While the words of the rule are not identical with those of the statute, the definitions are substantially the same and the Union's challenge to the validity of the rule must fail.

Unfair Labor Practice Charge

A. Standard of Review

The Union makes several assertions with regard to the appropriate standard of review of the Board's refusal to issue a complaint.

First, it argues...