           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION ONE


FISH AND WILDLIFE OFFICERS'                       No. 72104-6-
GUILD,

                        Respondent,

                  v.                              PUBLISHED OPINION


WASHINGTON DEPARTMENT OF
FISH AND WILDLIFE,

                        Appellant.                FILED: December 7, 2015

       Schindler, J. — The right of state employees to collective bargaining is

governed by statute. The Personnel System Reform Act of 2002 (PSRA), chapter 41.80

RCW, requires exclusive bargaining representatives of bargaining units with fewer than

500 employees to negotiate a master collective bargaining agreement (CBA) as a

coalition. The PSRA requires the representatives for all bargaining units to bargain as a

coalition for health care benefits. The PSRA sets forth the rules for certification of an

employee organization as the exclusive bargaining representative for the employees of

a bargaining unit. If a master CBA is in effect when an employee organization of fewer

than 500 employees is certified, that agreement shall apply and "[n]othing in this section

requires the parties to engage in new negotiations during the term of that agreement."1


       1 RCW41.80.080(2)(a)
No. 72104-6-1/2


The Fish and Wildlife Officers' Guild (FWOG) filed an unfair labor practice complaint

asserting the state of Washington (State) refused to bargain wages and health care

benefits. The Public Employment Relations Commission (PERC) concluded that when

it certified FWOG as the exclusive bargaining representative of approximately 94

employees, the coalition master CBA for the 2011-2013 biennium was in effect and

applied. PERC ruled the State did not alter the status quo or commit an unfair labor

practice by refusing to engage in collective bargaining with FWOG and negotiate a new

agreement on wages and health care benefits. The superior court reversed the PERC

decision. The Washington Department of Fish and Wildlife appeals the superior court

order. FWOG contends PERC erroneously interpreted and applied the PSRA. We

reverse the superior court and affirm the PERC decision.

                                             FACTS


      The facts are undisputed. The Washington Federation of State Employees,

AFSCME,2 Council 28, AFL-CIO3 (WFSE), represented a number of bargaining units

including the Washington Department of Fish and Wildlife enforcement officers,

bargaining unit RU-538. The master collective bargaining agreement (CBA) between

WFSE and the state of Washington (State) for the 2009-2011 biennium expired on June

30,2011.

       During 2010 and early 2011, WFSE and the State negotiated a successor master

CBA for the next biennium, July 1, 2011 through June 30, 2013. On December 14,

2010, WFSE and the State tentatively agreed to a three percent salary reduction for all

bargaining unit employees effective July 1, 2011.


      2 American Federation of State, County, and Municipal Employees.
      3 American Federation of Labor-Congress of Industrial Organizations.
No. 72104-6-1/3


      On January 5, 2011, the State and the coalition of bargaining units with fewer

than 500 employees agreed to a master CBA that included a three percent salary

reduction for the 2011-2013 biennium effective July 2, 2011.

      The State also negotiated an agreement with a coalition of all exclusive

bargaining representatives (Health Care Coalition) to reduce the health care

contributions paid by the State. On December 2, 2010, the State and the Health Care

Coalition agreed to a reduction in the amount the State contributed for health care

premiums from 88 percent to 85 percent effective January 1, 2012.

      WFSE scheduled meetings with bargaining unit employees on the tentative

master CBA. WFSE posted the tentative master CBA on its website with a description

of the three percent wage reduction and the change in health care contributions agreed

to by the Health Care Coalition. On January 24, 2011, WFSE mailed ballots to

members. On February 17, 2011, WFSE announced the bargaining unit members

voted to ratify the 2011-2013 master CBA that included a three percent reduction in

wages and a reduction in health care benefits.4

      On March 4, 2011, the Fish and Wildlife Officers' Guild (FWOG) filed a petition

with the Public Employment Relations Commission (PERC) to represent approximately

94 "full time and regular part time employees in the Enforcement Program" of the

Washington Department of Fish and Wildlife. PERC scheduled a unit determination

hearing for June 7, 2011.

       On May 25, the legislature approved the 2011-2013 WFSE master CBA and the

2011-2013 coalition master CBA reducing the wages paid by three percent.

Engrossed Second Substitute H.B. 1087, 62nd Leg., 1st Spec. Sess. (Wash. 2011).

       4 The master coalition also ratified the 2011-2013 CBA.
No. 72104-6-1/4



The legislature also approved the Health Care Coalition agreement reducing the

amount the State contributed to employee health care premiums from 88 percent to 85

percent effective January 1, 2012. Engrossed Second Substitute H.B. 1087, 62nd

Leg., 1st Spec. Sess. (Wash. 2011).

       That same day, on May 25, the legislature adopted Engrossed Substitute Senate

Bill (ESSB) 5860 declaring an emergency and reducing the base salaries for the 2011-

2013 biennium for all executive, legislative, and judicial branch State employees by

three percent. ESSB 5860, 62nd Leg., 1st Spec. Sess. (Wash. 2011).

       On June 24, PERC issued an "Interim Certification" of FWOG as the exclusive

bargaining representative for a bargaining unit of approximately 94 Fish and Wildlife

officers.


       On June 28, FWOG sent a letter to the director of the Financial Management

Labor Relations Office (LRO Director) "to verify that the employer understands the need

to maintain the status quo throughout this period and up until the State reaches a

Collective Bargaining Agreement with the Guild." FWOG asserts the WFSE master

CBA that the Fish and Wildlife officers previously agreed to and ratified did not apply

after WFSE disclaimed representation on June 6, 2011. FWOG demanded collective

bargaining on "a new labor agreement" on wages and benefits.

        In response, the LRO Director states that because the coalition master CBA was

in effect for the 2011-2013 biennium when the bargaining unit was certified, that

agreement applied to bargaining unit employees.

        There is a current collective bargaining agreement in place for the
        Coalition of Unions, which I've attached for your reference. Article 1.2 of
        that master agreement provides:
No. 72104-6-1/5


                  Ifthe Public Employment Relations Commission certifies a new
                  bargaining unit in general government during the term of this
                  Agreement and the exclusive bargaining representative represents
                  fewer than a total of five hundred (500) employees, the terms of this
                  Agreement will apply. The Employer agrees to enter into
                  negotiations regarding mandatory subjects with the newly added
                  group to discuss any bargaining unit specific concerns which are
                  not addressed in this Agreement.

         You raise the issue of the 3% compensation reduction. The master
         collective bargaining agreement in place for the 2011-2013 Coalition of
         Unions agreement provides for a 3% reduction in pay and offsetting
         temporary salary reduction leave. The compensation reduction contained
         in the master agreement has been approved and funded by the
         legislature. The same is true for the 2011-2013 Washington Federation of
         State Employees (WFSE) master agreement.

         The LRO Director states that under the PSRA, the employer did not have "the

ability to bargain over legislatively imposed pay reductions, nor does it have the ability

to bargain a new agreement between the State and the Guild" for the 2011-2013

biennium. However, the LRO Director agreed that under the PSRA, the State would

negotiate "subjects that are unique to [Fish and Wildlife officers] that are not addressed

in the Coalition agreement."5

         RCW 41.80.020(2)(a) establishes that unions with fewer than 500
         employees shall negotiate with the State for one master collective
         bargaining agreement, which covers all such unions. The statute further
         provides that the Governor's designee and the exclusive representative or
         representatives are authorized to enter into supplemental bargaining of
         agency-specific issues for inclusion in, or as an addendum to, the master
         collective bargaining agreement, subject to the parties' agreement
         regarding the issues and procedures for supplemental bargaining.




         5 The LRO Director also noted the legislature adopted ESSB 5860 declaring an emergency and
directing a "3% cut" in wages. The letter states, in pertinent part:
         RCW 41.80.040 prohibits bargaining over actions deemed "necessary to carry out the
         mission of the state and its agencies during [an] emergency]." And, of course, pursuant
         to RCW 41.80.020 (6), the terms of a collective bargaining agreement may not conflict
         with a statute.
(Alterations in original.)
No. 72104-6-1/6


        On July 1, 2011, the State implemented the three percent wage reduction

according to the terms of the master CBAs, the coalition master CBA, and ESSB 5860

for all State employees. The reduction in the amount the State contributed to health

care premiums was scheduled to take effect on January 1, 2012.

        On November 9, 2011, FWOG filed an unfair labor practice complaint with

PERC. The complaint alleged the State interfered with employee rights by refusing to

engage in collective bargaining with FWOG and unilaterally reducing wages and health

care benefits.6

        FWOG and the State entered into a joint stipulation of facts. FWOG and the

State filed cross-motions for summary judgment on whether the State committed an

unfair labor practice by refusing to engage in collective bargaining with FWOG on

wages and health care benefits. The PERC hearing examiner granted the State's

motion for summary judgment. The decision states that "under RCW 41.80.010(2)(a),

upon certification, the union became a party to the coalition collective bargaining

agreement and was not entitled to bargain a separate agreement on wages and health

benefits." The hearing examiner ruled as a matter of law, the State "did not unilaterally

change wages or health benefits or breach its good faith bargaining obligations over

wages and health benefits." FWOG appealed the hearing examiner decision.

        PERC affirmed the decision of the hearing examiner. Decision 11394-B - PSRA,

No. 24387-U-11-6249 (Wash. Pub. Emp't Relations Comm'n Sept. 5, 2013). PERC

rejected the argument that the hearing examiner decision violated the status quo

principles under the Public Employees' Collective Bargaining Act (PECBA), chapter

        6 FWOG also alleged the State changed paid release time and insisted to impasse on ground
rules. The superior court affirmed the PERC decision to dismiss these allegations. Neither the State nor
FWOG appeal dismissal of these allegations.
No. 72104-6-1/7


41.56 RCW. PERC concluded "the unique features of Chapter 41.80 RCW" dictate "a

different result."


       In essence, the union requests that the status quo principles applicable
       under Chapter 41.56 RCW apply to Chapter 41.80 RCW. The status quo
       under Chapter 41.56 RCW would have been the collective bargaining
       agreement negotiated between the employer and the WFSE and that
       status quo would have continued until the employer and the union
       negotiated a new agreement. However, the unique features of Chapter
       41.80 RCW require a different result.

        PERC decided that after certifying FWOG as the exclusive bargaining

representative of approximately 94 Fish and Wildlife officers, the coalition master CBA

established the status quo, and FWOG was not entitled to negotiate a new master CBA

on wages or health care benefits. The PERC decision states, in pertinent part:

       The bargaining unit employees were covered by the WFSE master
       agreement at the time the union filed its petition. During the pendency of
       the representation petition, the status quo wages, hours, and other terms
       and conditions of employment were set by the WFSE master agreement.
       The employer was obligated to maintain the status quo until the union was
       certified as the exclusive bargaining representative. Once the union was
       certified as the exclusive bargaining representative, the WFSE master
       agreement no longer applied because the union represented fewer than
       500 employees.

       The union was not entitled to negotiate a separate master collective
       bargaining agreement. Ifthe employees had chosen to join a union that
       represented more than 500 employees, upon ratification, the employees
       would have been covered by that master collective bargaining agreement.
       RCW 41.80.010(2)(a) and 41.80.080(2)(a). In this case, the employees
       chose to be represented by a union that represented fewer than 500
       employees. When the union was certified, the coalition collective
       bargaining agreement was in effect and became the status quo. Thus, the
       employees were covered by the coalition agreement and will be required
       to bargain successor agreements as part of the coalition.

        PERC affirmed the dismissal of the allegation that the State violated RCW

41.80.110 by refusing to bargain with FWOG on wages and health care benefits. The
No. 72104-6-1/8


PERC decision states, in pertinent part:

      The union did not represent more than 500 employees and was required
      to bargain as part of the coalition. The union was not entitled to negotiate
      a separate master collective bargaining agreement or agreement on
      health benefits. Upon certification, the status quo for employee wages,
      hours, and terms and conditions of employment became the coalition
      collective bargaining agreement. The employer did not unilaterally change
      the status quo on wages, health benefits, or paid release time. The
      employer did not insist to impasse upon ground rules.

       FWOG filed an appeal of the PERC decision in superior court. The court

reversed the PERC decision that the State did not commit an unfair labor practice. The

court concluded PERC erred in concluding the coalition master CBA applied. The court

ruled that under general contract principles, the State had a duty to engage in collective

bargaining with FWOG on wages and health care benefits. The State appeals.

                                       ANALYSIS

      The State argues the superior court erred in reversing the PERC decision.

FWOG contends PERC erroneously interpreted the PSRA in concluding the State did

not commit an unfair labor practice.

       In reviewing an agency decision, we sit in the same position as the superior court

and apply the standards of the Administrative Procedure Act, chapter 34.05 RCW.

Pasco Police Officers' Ass'n v. City of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827

(1997). Accordingly, our review is limited to the record of the administrative tribunal and

the PERC decision, not the decision of the hearing examiner. City of Vancouver v. Pub.

Emp't Relations Comm'n, 107 Wn. App. 694, 703, 33 P.3d 74 (2001).

      A reviewing court may grant relief only ifthe party challenging the agency

decision shows that the order is invalid for one of the reasons set forth at RCW

34.05.570(3). Yakima Police Patrolmen's Ass'n v. City of Yakima, 153 Wn. App. 541,


                                             8
No. 72104-6-1/9


553, 222 P.3d 1217 (2009). RCW 34.05.570(3)(d) requires relief from the agency order

when the decision is based on an erroneous interpretation or application of the law.

       We review an agency order granting summary judgment de novo. Quadrant

Corp. v. Am. States Ins. Co., 154Wn.2d 165, 171, 110 P.3d 733 (2005). Unchallenged

and stipulated facts are verities on appeal. Fuller v. Dep't of Emp't Sec, 52 Wn. App.

603, 605, 762 P.2d 367 (1988).

       The State argues the right of State employees to engage in collective bargaining

is governed by statute, and the specific and unique provisions of the PSRA control. The

State asserts that under the statutory provision for negotiation and ratification of a

master CBA, RCW 41.80.010(2)(a); and the statute that sets forth the rules following

certification of an employee organization as a new bargaining representative, RCW

41.80.080(2)(a); the State did not commit an unfair labor practice by refusing to engage

in collective bargaining with FWOG on wages and health care benefits for the 2011-

2013 biennium. FWOG contends that under the plain language of the PSRA, the State

committed an unfair labor practice by refusing to bargain and by interfering with the

employees' right to negotiate a new CBA.

       Interpretation or application of the law by an agency is reviewed de novo. Pasco

Police, 132 Wn.2d at 458. Our objective is to ascertain and give effect to legislative

intent. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).

Statutory interpretation begins with the plain meaning of the statute. Lake v.

Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). The

"plain meaning" of a statute is discerned from the ordinary meaning of the language at

issue as well as the context of the statute in which that provision is found, related
No. 72104-6-1/10


provisions, and the statutory scheme as a whole. Lake, 169 Wn.2d at 526. " 'Statutes

are to be read together, whenever possible, to achieve a harmonious total statutory

scheme.'" In re Bankr. Petition of Wieber. 182 Wn.2d 919, 926, 347 P.3d 41 (2015)7

(quoting State ex rel. Peninsula Neighborhood Ass'n v. Dep't of Transp., 142 Wn.2d

328, 342, 12 P.3d 134 (2000)). "While we look to the broader statutory context for

guidance, we 'must not add words where the legislature has chosen not to include

them,' and we must 'construe statutes such that all of the language is given effect.'"

Lake. 169 Wn.2d at 526 (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674,

682, 80 P.3d 598 (2003)). "Where the language of a statute is clear, legislative intent is

derived from the language of the statute alone." City of Spokane v. Rothwell, 166

Wn.2d 872, 876, 215 P.3d 162 (2009). If the statute is unambiguous, the inquiry ends.

State v. Armendariz, 160Wn.2d106, 110, 156P.3d201 (2007).

       When construing a collective bargaining statute, we give "substantial weight and

great deference" to PERC's interpretation in view of its expertise in the area of collective

bargaining. City of Bellevue v. Int'l Ass'n of Fire Fighters, Local 1604, 119 Wn.2d 373,

381-82, 831 P.2d 738 (1992). However, we may substitute our interpretation for that of

the agency. Chi. Title Ins. Co. v. Office of the Ins. Comm'r, 178Wn.2d 120, 133, 309

P.3d 372 (2013).

       The national Labor Relations Act specifically exempts state and local government

employers from coverage. 29 U.S.C. § 152(2) ("The term 'employer'. . . shall not

include . . . any State or political subdivision thereof"). Congress left the decision

concerning collective bargaining rights for public employees to the states. See also City



       7 Internal quotation marks omitted.


                                             10
No. 72104-6-1/11


of Yakima v. Int'l Ass'n of Fire Fighters, AFL-CIO, Local 469, Yakima Fire Fighters

Ass'n, 117Wn.2d655, 666-67, 818 P.2d 1076(1991).

       In 1967, the legislature adopted the Public Employees' Collective Bargaining Act

(PECBA), chapter 41.56 RCW. Laws of 1967, Ex. Sess., ch. 108, § 1. The PECBA

gives cities, counties, and political subdivisions of the State the right to engage in

collective bargaining with employees on wages, hours, and working conditions.

However, the PECBA gives the right to engage in collective bargaining to only certain

limited categories of State employees. See, e.g., RCW 41.56.473 (Washington State

Patrol officers); RCW 41.56.027 and RCW 47.64.120 (Washington State Department of

Transportation Ferries Division employees).

       In 2002, the legislature adopted the PSRA, chapter 41.80 RCW. Laws of 2002,

ch. 354, § 301. The legislature substantively restructured the administration and

collective bargaining rights for State employees.

       The PSRA of 2002 gives all State employees the right to engage in collective

bargaining with "the governor or governor's designee." RCW 41.80.010(1), .020(1).

"Except as may be specifically limited by this chapter," the PRSA gives State employees

the right to organize and "bargain collectively through representatives of their own

choosing." RCW 41.80.050.

       The PSRA adopts a unique structure that mandates the negotiation of a master

CBA. RCW 41.80.010(2)(a). Exclusive bargaining representatives for bargaining units

with fewer than 500 members must bargain as a coalition for wages, hours, and other

terms and conditions of employment. RCW 41.80.010(2)(a). RCW 41.80.010(2)(a)




                                             11
No. 72104-6-1/12


states:


          If an exclusive bargaining representative represents more than one
          bargaining unit, the exclusive bargaining representative shall negotiate
          with each employer representative as designated in subsection (1) of this
          section one master collective bargaining agreement on behalf of all the
          employees in bargaining units that the exclusive bargaining representative
          represents. For those exclusive bargaining representatives who represent
          fewer than a total of five hundred employees each, negotiation shall be by
          a coalition of all those exclusive bargaining representatives. The coalition
          shall bargain for a master collective bargaining agreement covering all of
          the employees represented by the coalition. The governor's designee and
          the exclusive bargaining representative or representatives are authorized
          to enter into supplemental bargaining of agency-specific issues for
          inclusion in or as an addendum to the master collective bargaining
          agreement, subject to the parties' agreement regarding the issues and
          procedures for supplemental bargaining. This section does not prohibit
          cooperation and coordination of bargaining between two or more exclusive
          bargaining representatives.181

          RCW 41.80.020 defines the scope of bargaining. RCW 41.80.020(1) states:

          Except as otherwise provided in this chapter, the matters subject to
          bargaining include wages, hours, and other terms and conditions of
          employment, and the negotiation of any question arising under a collective
          bargaining agreement.

          The PSRA mandates coalition collective bargaining for health care benefits with

the bargaining representative of aN bargaining units for "the dollar amount expended on

behalf of each employee for health care benefits shall be conducted between the

employer and one coalition for all the exclusive bargaining representatives subject to

this chapter." RCW 41.80.020(3). The amount agreed to with the coalition "shall be

included in all master collective bargaining agreements negotiated by the parties."

RCW 41.80.020(3). RCW 41.80.020(3) provides, in pertinent part:

          Matters subject to bargaining include the number of names to be certified
          for vacancies, promotional preferences, and the dollar amount expended
          on behalf of each employee for health care benefits. However, except as
          provided otherwise in this subsection for institutions of higher education,

          8 Emphasis added.


                                               12
No. 72104-6-1/13



      negotiations regarding the number of names to be certified for vacancies,
      promotional preferences, and the dollar amount expended on behalf of
      each employee for health care benefits shall be conducted between the
      employer and one coalition of all the exclusive bargaining representatives
      subject to this chapter. . . . Any such provision agreed to by the employer
      and the coalition shall be included in all master collective bargaining
      agreements negotiated by the parties.[9]

       Under RCW 41.80.010(3)(a), the master CBA must be submitted to the Office of

Financial Management by October 1 prior to the legislative session before the beginning

of the biennium. The Office of Financial Management must certify that the master CBA

is "feasible financially for the State." RCW 41.80.010(3)(b). "The legislature shall

approve or reject the submission of the request for funds as a whole." RCW

41.80.010(3)(b). RCW 41.80.010(3) provides:

      The governor shall submit a request for funds necessary to implement the
      compensation and fringe benefit provisions in the master collective
      bargaining agreement or for legislation necessary to implement the
      agreement. Requests for funds necessary to implement the provisions of
      bargaining agreements shall not be submitted to the legislature by the
       governor unless such requests:
            (a) Have been submitted to the director of the office of financial
       management by October 1 prior to the legislative session at which the
       requests are to be considered; and
             (b) Have been certified by the director of the office of financial
      management as being feasible financially for the State.
             The legislature shall approve or reject the submission of the
      request for funds as a whole. The legislature shall not consider a request
      for funds to implement a collective bargaining agreement unless the
      request is transmitted to the legislature as part of the governor's budget
       document submitted under RCW 43.88.030 and 43.88.060. If the
       legislature rejects or fails to act on the submission, either party may
       reopen all or part of the agreement or the exclusive bargaining
       representative may seek to implement the procedures provided for in
       RCW 41.80.090.


       Consistent with the requirement under RCW 41.80.010(2)(a) to negotiate a

master CBA, the legislature adopted rules governing certification of an employee


       9 Emphasis added.


                                            13
No. 72104-6-1/14


organization as the new exclusive bargaining representative of a bargaining unit. Under

RCW41.80.080(4)(b), a bargaining unit may petition to change bargaining

representatives during a 30-day window that is "no more than one hundred twenty

calendar days nor less than ninety days" before the expiration of the CBA. RCW

41.80.080(4)(b) states:

       No question concerning representation may be raised if:... [a] valid
       collective bargaining agreement exists covering the unit, except for that
       period of no more than one hundred twenty calendar days nor less than
       ninety calendar days before the expiration of the contract.

       RCW 41.80.080(2)(a) states that when a new employee organization is certified

as the exclusive bargaining representative of fewer than 500 employees and a master

CBA is "in effect for the exclusive bargaining representative, it shall apply to the

bargaining unit for which the certification has been issued." RCW 41.80.080(2)(a)

states, in pertinent part:

       If an employee organization has been certified as the exclusive bargaining
       representative of the employees of a bargaining unit, the employee
       organization may act for and negotiate master collective bargaining
       agreements that will include within the coverage of the agreement all
       employees in the bargaining unit as provided in RCW41.80.010(2)(a).
       However, if a master collective bargaining agreement is in effect for the
       exclusive bargaining representative, it shall apply to the bargaining unit for
       which the certification has been issued. Nothing in this section reguires
       the parties to engage in new negotiations during the term of that
       agreement.[10]

       The parties dispute whether under the plain language of the PSRA, the coalition

master CBA was in effect and applied to FWOG. The State asserts PERC correctly

decided that because the coalition master CBA was in effect when PERC certified

FWOG, it applies, and the State did not have the authority to negotiate a new

agreement with FWOG on wages and health care benefits. The State asserts RCW

       10 Emphasis added.


                                             14
No. 72104-6-1/15


41.80.010(2)(a) authorizes supplemental collective bargaining only for agency-specific

issues, not wages or health care benefits.

       First, FWOG asserts the PSRA gives the State the authority to engage in

supplemental collective bargaining for wages and health care benefits. We disagree.

RCW 41.80.020 establishes the scope of bargaining. RCW 41.80.020(1) specifically

states that "felxcept as otherwise provided in this chapter," wages and conditions of

employment are subject to collective bargaining.11 RCW41.80.010(2)(a) requires

bargaining units with fewer than 500 members engage in collective bargaining as a

coalition and authorizes the State to enter into supplemental bargaining only for agency-

specific issues as an addendum to the master CBA. Wages and health care benefits

are not "agency-specific" issues.

       Next, FWOG contends the PERC decision that the coalition master CBA applied

ignores the right of employees to choose an exclusive bargaining representative and the

right of an exclusive bargaining representative to negotiate a CBA. FWOG argues the

definition of exclusive bargaining representative, RCW 41.80.005(9); the rights of

employees, RCW 41.80.050; and the rights of the certified exclusive bargaining

representative, RCW 41.80.080(3); require the State to engage in bargaining with

FWOG for a new CBA on wages and health care benefits. We disagree.

       RCW 41.80.005(9) defines an "exclusive bargaining representative" as "any

employee organization that has been certified under this chapter as the representative

of the employees in an appropriate bargaining unit." The PSRA grants employees the

right to "bargain collectively through representatives of their own choosing . . . [e]xcept



       11 Emphasis added.


                                             15
No. 72104-6-1/16


as may be specifically limited by this chapter." RCW 41.80.050.12 The statute

addressing the responsibilities of a newly certified exclusive bargaining representative

of an employee organization of fewer than 500 members under RCW 41.80.080(3) also

does not require the State to negotiate a new CBA. RCW 41.80.080(3) states:

      The certified exclusive bargaining representative shall be responsible for
      representing the interests of all the employees in the bargaining unit. This
      section shall not be construed to limit an exclusive representative's right to
      exercise its discretion to refuse to process grievances of employees that
       are unmeritorious.

       If a master CBA is in effect for a newly certified exclusive bargaining

representative representing fewer than 500 employees, the PSRA does not permit the

State to negotiate a separate CBA. RCW 41,80.080(2)(a) specifically states, "Nothing

in this section requires the parties to engage in new negotiations during the term of that

agreement."

      The statutory scheme and plain language of the PSRA make clear the legislative

intent to require negotiating a master CBA by a coalition for bargaining units of fewer

than 500 members, and if that agreement is in effect when a new exclusive bargaining

representative is certified, it shall apply and the State may not negotiate a new

agreement.

       FWOG concedes it did not file the petition for certification until after the WFSE

master CBA and the coalition master CBA were entered into for the 2011-2013

biennium. There is no dispute FWOG represents fewer than 500 employees and a

coalition master CBA for all bargaining units with fewer than 500 employees was "in

       12 RCW 41.80.050 states, in pertinent part:
       Except as may be specifically limited by this chapter, employees shall have the right to
       self-organization, to form, join, or assist employee organizations, and to bargain
       collectively through representatives of their own choosing for the purpose of collective
       bargaining free from interference, restraint, or coercion.


                                                   16
No. 72104-6-1/17


effect" on June 24, 2011 when PERC certified FWOG as the exclusive bargaining

representative. The statute anticipates certification will occur after a successor coalition

master CBA has been negotiated and funded. RCW 41.80.080(4) allows questions

concerning representation only during a "window" period of no more than 120 days nor

less than 90 days before the expiration of a CBA. But the PSRA does not allow the

State and the newly certified exclusive bargaining representative to negotiate subjects

already covered in the master agreement. Instead, if a master CBA is "in effect," it will

apply to the bargaining unit for which certification was issued and "[n]othing in this

section requires the parties to engage in new negotiations during the term of that

agreement." RCW41.80.080(2)(a).

       We conclude the State did not commit an unfair labor practice by refusing to

negotiate a new CBA with FWOG on wages and health care benefits for the 2011-2013

biennium.

       FWOG also asserts the PERC decision violates common law contract principles

and the constitutional First Amendment right of association. We disagree. The

Washington State Supreme Court has consistently held that the terms and conditions of

public employment are controlled by statute. Wash. Fed'n of State Emps.. AFL-CIO.

Council 28, AFSCME v. State, 101 Wn.2d 536, 539-42, 682 P.2d 869 (1984).

       FWOG concedes the First Amendment does not create a right to bargain but

argues that "once a state creates a collective bargaining system it cannot infringe or

retaliate against the exercise of rights under such statutes." FWOG does not meet its

heavy burden to establish the PSRA is unconstitutional. Eugster v. State, 171 Wn.2d

839, 843, 259 P.3d 146 (2011) (We presume a statute is constitutional, and the




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No. 72104-6-1/18


challenging party "bears the burden of establishing a statute's unconstitutionality

beyond a reasonable doubt."). Nonetheless, we conclude the PSRA does not

unconstitutionally infringe on the right to collective bargaining.13

       We hold that under the plain language of the PSRA, PERC correctly concluded

that the State did not commit an unfair labor practice by refusing to separately bargain

with FWOG on wages and health care benefits. We reverse the superior court and

affirm the PERC decision.




                                                         \\XaAa^
WE CONCUR:




    l/^kfey, J                                                \>^e^




        13 We also note the legislature declared an emergency and mandated the three percent salary
reductions under ESSB 5860. RCW 41.80.020(5) provides that "[t]he employer and the exclusive
bargaining representative shall not bargain over matters pertaining to management rights established in
RCW 41.80.040." RCW 41.80.040 provides, in pertinent part:
       The employer shall not bargain over rights of management which, in addition to all
       powers, duties, and rights established by constitutional provision or statute, shall include
        but not be limited to the following:

                (4) The right to take whatever actions are deemed necessary to carry out the
        mission of the state and its agencies during emergencies.


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