Lewis County v. Public Employment Relations Commission

• Decision Date: 14 May 1982
• Docket Number: No. 1341,No. 4968-6-II,A,1341,4968-6-II
• Citation: 31 Wn.App. 853,644 P.2d 1231
• Parties: LEWIS COUNTY, Respondent, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION and Washington State Council of County and City Employees and its Localppellants.
• Court: Washington Court of Appeals

Page 853

31 Wn.App. 853

644 P.2d 1231

LEWIS COUNTY, Respondent, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION and Washington State Council of County and City Employees and its Local No. 1341C, Appellants.

No. 4968-6-II.

Court of Appeals of Washington, Division 2.

May 14, 1982.

Richard A. Heath, Asst. Atty. Gen., Olympia, Pamela G. Cipolla, Seattle, for appellants.

Gene Butler, Chief Civil Deputy, Nelson Hunt, Deputy Pros. Atty., Chehalis, for respondent.

PETRIE, Judge.

Local No. 1341C of the Washington State Council of County and City Employees (Union), and the Public Employment Relations Commission (PERC) appeal an order of the trial court which reversed two PERC orders (Decision No. 644 and 644-A PECB) directing Lewis County to bargain with Local 1341C, to cease and desist from unfair labor practices and awarding attorney fees to the Union. The trial court decision also had the practical effect of upsetting an earlier PERC order (Decision No. 368 PECB) which certified the Union as bargaining representative for a group of courthouse employees in Lewis County.

Review of the PERC order was sought by Lewis County under provision of the state administrative procedure act, RCW 34.04.130. Local 1341C counter-claimed for enforcement of the PERC order under RCW 41.56.190, Public Employees' Collective Bargaining Act. We reverse the trial court, and reinstate Decision Nos. 644 and 644-A PECB, because the County was (1) collaterally estopped from attacking the prior certification order and asserting it as a defense to the unfair labor practice charge, and (2) the trial court erred in going behind the immediate administrative order on review.

The County contends here that the certification order did not bind it because Lewis County itself is not a public employer. It urges that the Board of Commissioners and each elected official in the county (Assessor, Auditor, Clerk, Treasurer, District Court Judge) constitutes a separate employer, and that PERC had no jurisdiction over the elected officials. This position was asserted as a defense to the unfair labor practice charge and gave rise to the review sought in the superior court. Background on the bargaining history between the County and the Union is necessary for an understanding of the instant dispute and the issues involved.

On November 30, 1977, the Union wrote the Lewis County Board of Commissioners stating that a majority of courthouse employees had asked the Union to represent them and requesting that the Commissioners join with the Union in signing a Consent for Election Agreement and petitioning PERC for an election. The election agreement described the proposed bargaining unit as "Courthouse employees: Treasurer, Assessors, Auditors, Maintenance, Clerks, District Court, Car Pool" as included employees. Excluded were "Commissioners Office and elected officials and Juvenile Court." On December 2, 1977, the Commissioners responded in writing declining to sign the Consent Election Agreement, explaining

One of the reasons for declining is that the County does not feel that the proposed bargaining unit represents a sufficient number of employees. A unit composed of all eligible courthouse employees, including all departments, would be more appropriate.

On January 3, 1978 the Commissioners withdrew their objections to the size of the unit proposed in the Union's petition and forwarded a copy of the Consent Election Agreement to PERC, thereby stipulating to the appropriateness of the unit for election purposes.

On January 23, 1978 the Union won the representation election to become the bargaining representative for the unit of courthouse employees. Subsequent to the election, the County objected to the election by filing a document labeled "Notice of Protest and Objection to Certification Election." The objections in summary were that "eighteen (eligible voters) did not vote either because of illness, confusion as to the effects of abstention or inadvertance (sic ) due to the pressure of their employment on that particular day." The County argued that the outcome would have been different if the non-voters had exercised their franchise. PERC, on March 7, 1978, in Decision No. 368 PECB, dismissed the County's objections and certified the bargaining unit as "an appropriate unit for the purposes of collective bargaining within the meaning of RCW 41.56.060."

The certified unit was described as:

All Lewis County Courthouse employees in the Treasurer's office, Assessor's office, Auditor's office, Clerk's office, District Court, Maintenance and Car Pool; excluding the Commissioners' office, elected officials and Juvenile Court employees.

The County never sought judicial review of that certification Decision (No. 368). Furthermore, the County never raised the issue of "proper employer" at any time before the election, in its objections to the election, or during the certification process.

Subsequent to Decision No. 368, the parties were told to commence bargaining. No bargaining occurred between March 1978 and February 1979, chiefly because of two intervening unfair labor practice charges. The County's unfair labor practice complaint against the Union was dismissed as baseless in September 1978. Decision No. 464-A PECB. In February 1979, PERC upheld the Union's complaint against the County charging a refusal to bargain, Decision 556-A PECB, but stayed enforcement of the order pending the resolution of the instant case, No. 644.

In early 1979 the County adopted for the first time the positions (1) that only the Board of Commissioners could bargain on wage-related matters, and (2) that each independent elected official (Assessor, etc.) was a separate employer who controlled other working conditions. The County's new-born defense to its obligations to bargain was that the certification in Decision No. 368 bound only the Commissioners, and that the Assessor, et al., were separate public employers not bound by the certification and with no duty to bargain. Because the Commissioners, on behalf of the County, would bargain only on wage matters, the Union in February 1979 filed a second unfair labor practice complaint charging the County with refusal to bargain, thus giving rise to the instant administrative order under review.

PERC notified the parties that a complaint would issue and that the matter would be decided on an agreed statement of facts. In May 1979 PERC issued an order finding an unfair labor practice on the part of the County by its continued refusal to bargain in good faith, Decision No. 644 PECB, and ordered the County to pay the Union's attorney fees as an extraordinary remedy. Decision No. 644-A PECB. PERC based its decision on the following: (1) Lewis County is a public employer within the meaning of RCW 41.56.030(1) ¹; (2) the unit for collective bargaining described in Decision No. 368 PECB was agreed upon by the County, was not offensive to RCW 41.56.060, and, per the stipulation to the unit, bound the County; (3) no petition for judicial review of the certification of the representative having been sought, the certification was a final order and no longer subject to collateral attack; and (4) "collective bargaining" as defined in RCW 41.56.030(4) was not limited to wage-related matters but included hours and working conditions. PERC found (1) that the County's attempted limitation of bargaining to wages and wage-related matters was unlawful ² and (2) that because of the continued course of conduct and the year-long delay of bargaining, a cease and desist order would be inadequate to effectuate the remedial purposes of the collective bargaining act. Therefore, in Decision No. 644-A, PERC imposed the extraordinary remedy of ordering payment of attorney fees in the sum of $1,388.75.

The County petitioned the Superior Court for Lewis County for review of PERC's decision in No. 644 and 644-A pursuant to RCW 34.04.130. Pursuant to subsection 4 of that statute, PERC certified the record in No. 644 and 644-A, the instant unfair labor practice charge, to the superior court. Through discovery efforts, the County sought certification of the PERC's record in Decision No. 368, the union certification case, and the two earlier unfair labor practice cases. PERC and the Union resisted such discovery and supplementation of the agency record as being beyond the scope of the immediate agency decision on review, No. 644. The trial court disallowed the objections. Accordingly the additional record in the earlier agency cases was subsequently supplied to the superior court.

The superior court considered the record in No. 644, the instant unfair labor practice, and the earlier certification case, No. 368, overturned both PERC determinations and held (1) there was no refusal to bargain, and (2) the certification was not binding on the elected officials. The trial court's reversal of Decision No. 644 was based on the following factors as it viewed them: (1) PERC had denied the independently elected officials due process of law when it found they were bound by the certification and obligated to bargain; (2) PERC's denial of a "separate employer" status to the elected officials was an error of law; (3) PERC exceeded its jurisdiction in the award of attorney fees; and (4) the decision in No. 644 was clearly erroneous in view of the agency's records of proceedings leading to Decisions Nos. 368 and 644.

The following issues are presented for our review. (1) Whether the superior court erred when it did not confine its review of Decision No. 644 to the immediate record certified by PERC but, instead, considered earlier agency determinations and record; (2) whether Lewis County was collaterally estopped from attacking the earlier certification decision as a defense to the unfair labor practice and, if not, whether the designation of "Lewis County" as employer was proper; and (3) whether PERC's award of attorney fees to the Union was a proper exercise of agency...