  A'l7LC'"                                           Thio opinion was filed for record
./ :   CLERICS OFFICE   '


                                                  a1·~~?1
                                                     .fbr. SUSAN L. CARLSON
                                                       SUPREME COURT CLERK
       IN THE SUPREME COURT OF THE STATE OF WASHINGTON


  MIRANDA THORPE, an Individual         )
  Provider of Washington,               )
                                        )           No. 92912-2
                           Appellant,   )
                                        )
               v.                       )           En Banc
                                        )
  GOVERNOR JAY INSLEE, in his official )
  capacity as Governor of the State of  )
  Washington; WASHINGTON                )
  DEPARTMENT OF SOCIAL AND              )
  HEALTH SERVICES ("DSHS"),             )
  SERVICE EMPLOYEES                     )
  INTERNATIONAL UNION                   )
  HEALTHCARE 775NW ("SEID 775"),        )
  a labor organization,                 )
                                        )
                           Respondents. )
                                        )           Filed       rtw o't    2011

          JOHNSON, J.-This case presents the question of whether the current

  collective bargaining agreement (CBA) between the State of Washington and

  Services Employees International Union Healthcare 775NW (SEIU) includes a

  union security provision statutorily authorized under chapter 41.56 RCW. The trial

  court held that the CBA contains an authorized union security provision and

  dismissed the lawsuit. We affirm.
Thorpe v. Inslee, No. 92912-2


                           FACTS AND PROCEDURAL HISTORY


       Miranda Thorpe is an individual provider (IP) of home care services to her

daughter, a Medicaid beneficiary. IPs contract with the Department of Social and

Health Services (DSHS) to provide personal care, respite care, and other social

services, and are paid by the State. IPs are public employees "[s]olely for the

purposes of collective bargaining." RCW 74.39A.270(1). SEIU is the exclusive

bargaining representative of all IPs in Washington. Pursuant to the current CBA

negotiated by SEIU, the State deducts union dues, or an equivalent fee, from

payment to providers. Before 2014, the CBA contained an agency shop 1 provision

that mandated that all providers either pay dues or equivalent fees, with no opt out

provision. After the United States Supreme Court held that the First Amendment

prohibited mandatory collection of fees from Illinois IPs of Medicaid services who

did not wish to financially support a union, 2 SEIU and the State entered into the

current agreement.




       1
         An agency shop requires bargaining unit members "to pay dues or service charges to the
collective bargaining agent. Nonunion employees, however, are not required to join the union as
a condition of employment." ROBERTS' DICTIONARY OF INDUSTRIAL RELATIONS 14 (rev. ed.
1971).

       2
        Harris v. Quinn,_ U.S. _134 S. Ct. 2618, 189 L. Ed. 2d 620 (2014).

                                              2
Thorpe v. Inslee, No. 92912-2


       The current agreement, which took effect on July 1, 2015, allows any

provider who chooses to not join or financially support the union to opt out.

Anyone who does not opt out is treated as a union member in good standing. On

May 27, 2015, upon notice of Thorpe's hire by the State, SEIU sent her a notice of

her right to not join or financially support the union along with information on

what needed to be done. Thorpe did not respond, and the State deducted dues from

her paychecks until October 2015, when she filed this suit, 3 seeking an injunction

against deductions, damages for dues paid, and costs and attorney fees. She asserts

that withholding union dues without express written authorization violates RCW

41.56.113 because the new CBA of 2014 no longer contains a union security

prov1s10n.

       In November 2015, Thorpe filed a motion for summary judgment. The

hearing was scheduled for February 26, 2016. In January 2016, respondent SEIU

filed a cross motion for summary judgment. In February 2016, respondent State

filed a separate cross motion. After oral argument, the trial court granted




       3
         Thorpe filed the lawsuit against Jay Inslee, in his official capacity as governor of the
state of Washington, DSHS, and SEID. Two response briefs were filed: one by Governor Inslee
and DSHS and the other by SEID. Governor Inslee and DSHS are referred to as the "State."


                                                3
Thorpe v. Inslee, No. 92912-2


respondents' cross motions and dismissed the suit. Thorpe appealed the trial

court's order and requested direct review, which we granted. 4

                                         ANALYSIS

       Chapter 41.56 RCW governs public employees' collective bargaining.

Specifically, RCW 41.56.113(1) governs IP collective bargaining when IPs receive

their pay directly from the State. The certification or recognition of an exclusive IP

bargaining representative triggers the application ofRCW 41.56.113(1)(a). RCW

41.56.113(l)(a) provides in pertinent part:

       Upon the written authorization of an individual provider, ... within the
       bargaining unit and after the certification or recognition of the
       bargaining unit's exclusive bargaining representative, the state as payor,
       but not as the employer, shall, ... deduct from the payments to an
       individual provider, ... the monthly amount of dues as certified by the
       secretary of the exclusive bargaining representative and shall transmit
       the same to the treasurer of the exclusive bargaining representative.

This subsection authorizes the State to make payroll deductions for membership dues

but requires written authorization to do so.

       However, RCW 41.56.113(1 )(b) establishes an exception to this requirement.

RCW 41.56.113(1)(b)(i) states:



       4
         There is a related question of whether the current CBA's opt out clause complies with
Harris or whether Harris applies to the Washington IP system. Thorpe's complaint is limited to
challenging the statutory definition of union security provision, and she does not raise a
constitutional challenge to the opt out system.


                                               4
Thorpe v. Inslee, No. 92912-2


               (b) If the governor and the exclusive bargaining representative of
       a bargaining unit of individual providers, family child care providers,
       adult family home providers, or language access providers enter into a
       collective bargaining agreement that:
               (i) Includes a union security provision authorized in RCW
       41.56.122, the state as payor, but not as the employer, shall, subject to
       (c) of this subsection, enforce the agreement by deducting from the
       payments to bargaining unit members the dues required for membership
       in the exclusive bargaining representative, or, for nonmembers thereof, a
       fee equivalent to the dues.

       RCW 41.56.122, provides in pertinent part:

       A collective bargaining agreement may:
               (1) Contain union security provisions: PROVIDED, That nothing
       in this section shall authorize a closed shop provision: PROVIDED
       FURTHER, That agreements involving union security provisions must
       safeguard the right of nonassociation of public employees based on bona
       fide religious tenets or teachings of a church or religious body of which
       such public employee is a member. Such public employee shall pay an
       amount of money equivalent to regular union dues and initiation fee to a
       nonreligious charity or to another charitable organization mutually
       agreed upon by the public employee affected and the bargaining
       representative to which such public employee would otherwise pay the
       dues and initiation fee.

Under section .122, union security provisions in CBAs are allowed as long as they are

not a closed shop provision5 and that any provision safeguards the rights of religious

objectors.




       5
          A "closed shop" requires all employees to be union members at the time of his or her
initial employment. Such a requirement "closes the shop" to all nonunion employees.


                                                5
Thorpe v. Inslee, No. 92912-2


       The trial court held that the CBA contains a "form of maintenance-of-

membership combination of agency shop" union security provision. Verbatim

Report of Proceedings (VRP) at 40. The trial court interpreted RCW 41.56.122 "as

the source of a union security provision that is authorized." VRP at 38. It further

held that the language in the CBA is not inconsistent with RCW 41.56.113. It

rejected Thorpe's argument that RCW 41.56.l 13(l)(b)(i) operates only where the

CBA contains an agency shop arrangement. The court relied on Public

Employment Relations Commission (PERC) cases to conclude that the

maintenance of membership combination of agency shop here was acceptable. It

held that while some combinations are more protective and some are less

protective of the union, the provision here encourages membership and

predictability, which supports the traditional goals of a union security provision.

       An appellate court reviews summary judgment rulings de novo. Keck v.

Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). An order granting summary

judgment is appropriate where there is "'no genuine issue as to any material fact

and ... the moving party is entitled to a judgment as a matter of law."' Elcon

Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (quoting CR

56(c)). This case presents an issue of statutory interpretation, and no facts are

disputed.


                                           6
Thorpe v. Inslee, No. 92912-2


       "In interpreting a statute, our primary objective is to ascertain and give effect

to the intent of the legislature." Cornu-Labat v. Hosp. Dist. No. 2, 177 Wn.2d 221,

231, 298 P .3d 741 (2013) (citing State v. Watson, 146 Wn.2d 94 7, 954, 51 P .3d 66

(2002)). To determine legislative intent, we begin with the statute's plain language

and ordinary meaning. In determining plain meaning, the court may look to all the

legislature has said in the statute and related statutes that disclose legislative intent.

Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003).

       Thorpe asserts that the new CBA does not contain a union security provision

authorized in RCW 41.56.113(1 )(b )(i) and therefore, the State must acquire written

authorization before deducting dues from payments. Under RCW 41.56.113(1 )(b)(i),

the first criteria for a qualifying union security provision is that it must be authorized

inRCW 41.56.122. Thorpe argues that the language ofRCW 41.56.122 requires a

union security provision that imposes a mandatory financial obligation of every

bargaining unit member, i.e., an agency shop provision. We disagree. RCW

41.56.122 is not as narrow as Thorpe claims.

       While chapter 41.56 RCW does not define "union security provision," the

meaning of that phrase has been addressed in other proceedings. PERC has

recognized that the legislature intended the term "union security provision" in

RCW 41.56.122 to have the same meaning as that term has been given in the


                                             7
Thorpe v. Inslee, No. 92912-2


decisions of the National Labor Relations Board (NLRB) interpreting the National

Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169. City ofSeattle, No. 3169-A,

1990 WL 693213 (Wash. Pub. Emp't Relations Comm'n Mar. 27, 1990).

Generally, an agency's definition of an undefined term is given great weight where

that agency has the duty to administer the statute. Phillips v. City of Seattle, 111

Wn.2d 903, 908, 766 P.2d 1099 (1989). Here, PERC has the duty to administer

chapter 41.56 RCW. Piel v. City ofFederal Way, 177 Wn.2d 604,633,306 P.3d

879 (2013) (J.M. Johnson, J., dissenting) (citing RCW 41.56.160). PERC's

interpretation of collective bargaining statutes is "entitled to substantial weight and

great deference." City ofBellevue v. Int'! Ass 'n ofFire Fighters, 119 Wn.2d 373,

382, 831 P.2d 738 (1992).

       In 1973, when the legislature enacted RCW 41.56.122, the term "union

security provision" had a well-established meaning under federal labor law. City of

Seattle, 1990 WL 693213, at *6. In City ofSeattle, PERC noted that the definition

of "union security" set forth in Roberts' Dictionary ofIndustrial Relations

captured the meaning of the term as used in RCW 41.56.122(1). That dictionary

defines "union security clauses" as "[p]rovisions in collective bargaining

agreements which aim to protect the union against employers, non-union

employees, and/or raids by competing unions." ROBERTS' DICTIONARY OF


                                           8
Thorpe v. Inslee, No. 92912-2


INDUSTRIAL RELATIONS 555 (rev ed. 1971). In other words, union security is

"'designed to bolster the membership and :finances of a union."' Resp. Br. at 7

(quoting ROBERT A. GORMAN & MATTHEW w. FINKIN' BASIC TEXT ON LABOR

LAW, UNIONIZATION, AND COLLECTIVE BARGAINING 900 (2d ed. 2004)). In

Roberts' Dictionary, "closed shop," 6 "union shop," 7 "agency shop," 8 and

"maintenance of membership" 9 clauses are all considered union security

prov1s1ons.

       Relevant to this case, federal labor law has long recognized maintenance of

membership clauses as common union security provisions. E.g., Horwath v. Nat 'l


       6  A closed shop requires membership in the union as a condition of employment. The
employer "is required to hire only employees who are members of the union .... The closed
shop is illegal under federal labor statutes." ROBERTS', supra, at 72.

       7
         A union shop allows the employer to "hire whomever he [or she] pleases but requires all
new employees to become members of the union within a specified period of time." ROBERTS',
supra, at 556. It also "requires the individual to remain a member or pay union dues for duration
of the collective bargaining agreement." ROBERTS', supra, at 556.

       8
           Defined supra note 1.

       9
          A maintenance of membership "require[s] all employees who are union members at the
time the contract is executed or at a specified time thereafter, and all employees who later
become members, to retain membership as a condition of employment. Nonmembers have no
duty to join. The 'membership' requirement is satisfied so long as the employee continues to pay
dues....                               ·
         "Maintenance-of-membership compulsion may run for the duration of the agreement. ...
However, where a contractual 'escape period' is provided, members who resign according to the
specified procedures are no longer subject to the agreement." 2 THE DEVELOPING LABOR LA w:
THE BOARD, THE COURTS, AND THE NATIONAL LABOR RELATIONS ACT 2260-61 (John E.
Higgins, Jr. et al. eds., 6th ed. 2012) (footnotes omitted).


                                                9
Thorpe v. Inslee, No. 92912-2


Labor Relations Bd., 539 F.2d 1093, 1098-99 (7th Cir. 1976); Standard Oil Co. of

Cal., W. Operations, Inc. v. Nat'! Labor Relations Bd., 399 F.2d 639 (9th Cir.

1968); Perkins Mach. Co., No 1-CA-3894, 141 N.L.R.B. 697 (1963); Int'! Ass 'n of

Machinists, AFL-CIO v. Nat'! Labor Relations Bd., 247 F.2d 414 (2d Cir. 1957);

Standard Lime & Stone Co., No. 8-RC-1231, 95 N.L.R.B. 628 (1951);

Westinghouse Elec. Corp., No. 8-C-2174, 80 N.L.R.B. 945 (1948); Gen. Elec. X-

Ray Corp., No. 13-C-2902, 76 N.L.R.B. 64 (1948).

       In addition, PERC has repeatedly recognized that a maintenance of

membership clause is a union security provision authorized in RCW 41.56.122.

Kephart v. Pierce County, No. 1840-A, 1985 WL 635617 (Wash. Pub. Emp't

Relations Comm'n May 14, 1985); City of Seattle, 1990 WL 693213; Wash. State

Council of County & City Emps. Council 2 AFSCME, AFL-CIO v. Northshore Util.

Dist., No. 10534, 2009 WL 3111376 (Wash. Pub. Emp't Relations Comm'n Sept.

10, 2009); see also PUB. EMP'T RELATIONS COMM'N, PRACTITIONER GUIDE 29

(Dec. 2007) 10 (permissible union security provisions include the union shop, the

agency shop, and maintenance of membership).




       10
           Available at http://www.perc.wa.gov/quicklinks/Practitioner-Guide.pdf,
[https://perma.cc/HGQ7-3ZNB].


                                               10
Thorpe v. Inslee, No. 92912-2


       Thorpe argues that the religious objector protection would be unnecessary

where there is no mandatory financial obligation on every bargaining unit member.

However, the NLRB's and PERC's broad interpretation of"union security

provision" is consistent with the wording ofRCW 41.56.122, which prohibits

closed shop union security clauses but permits public employers and unions to

negotiate union shop, agency shop, and maintenance of membership union security

provisions as long as the clause recognizes the rights of religious beliefs. If a CBA

excuses religious objectors from a financial obligation entirely, the CBA has

satisfied the religious objector protection requirement ofRCW 41.56.122. The

religious objector protection does not require that a CBA impose a mandatory

financial obligation on every bargaining unit member. As established by NLRB

and PERC rulings, union security provisions can be crafted within a range of

options, some broader, some narrower, so the wording of the statute is not as

narrow or restrictive as Thorpe asserts.

       Next, Thorpe argues that even ifRCW 41.56.122 authorizes a broad variety

of union security provisions, RCW 41.56.113(1)(b)(i) establishes a limitation on

the types of union security provisions that override the prior written authorization

requirement. Thorpe argues that RCW 41.56.l 13(l)(b)(i) authorizes only one type

of provision that overrides the prior written authorization requirement: agency


                                           11
Thorpe v. Inslee, No. 92912-2


shop provisions. She highlights section .113 's requirement that the "state ... shall .

. . enforce the agreement by deducting from the payments to bargaining unit

members the dues required for membership." RCW 41.56.113(1)(b)(i). Thorpe

argues that there must be a mandatory fee on every IP in the bargaining unit,

otherwise the State cannot enforce an agreement that deducts payments from

bargaining unit members. We disagree. RCW 41.56.l 13(1)(b)(i) states that the

employer "shall ... enforce the agreement." (Emphasis added.) The State's

statutory obligation to deduct dues or fees applies only to bargaining unit members

on whom the CBA imposes financial obligations related to union memberships.

Here, the CBA does not require dues for union membership; therefore, the State

has no obligation to impose deductions from payments.

       The next question is whether the CBA here contains an authorized union

security provision. Here, the trial court correctly held that the CBA contains a

maintenance of membership combination of agency shop union security provision

authorized under RCW 41.56.113(l)(b)(i). The legislature's use of the plural

"union security provisions" in RCW 41.56.122 "contemplates parties bargaining

about the various types of union security clauses to determine one that both parties

find is agreeable." Kephart, 1985 WL 635617, at *8. Parties may combine certain

elements of one type of union security provision with elements of another type to


                                          12
Thorpe v. Inslee, No. 92912-2


tailor to the particular needs of their collective bargaining relationship. For

example, in Kephart, PERC held that a CBA provision that combined elements of

"maintenance of membership" and "union shop" provisions was a union security

provision authorized by RCW 41.56.122. PERC explained:

       The union and the employer had the right under RCW 41.56.122 to
       bargain the inclusion of a form of union security into the contract.

       Nor is the article subject to attack on the basis that it does not call for
       full union security. The contract imposes a "maintenance of
       membership" obligation coupled with "union shop" obligation on new
       hires, but appears to impose no obligation on employees who were not
       members on the contract's effective date, and so might be described as
       a "modified union shop" clause.

Kephart, 1985 WL 635617, at *8; see also Northshore Util. Dist., 2009 WL

3111376.

       Here, article 4.1.A of the current CBA provides:

       In accordance with RCW 41.56.l 13(1)(b)(i), the State as payor, but
       not as the employer, shall cause the appropriate entity or agency to
       deduct the amount of dues or, for non-members of the Union, a fee
       equivalent to the dues from each home care worker's payment for
       services (paycheck or direct deposit).

Clerk's Papers (CP) at 95.

       Article 4.1.B provides, in summary, that any IP who does not wish to join or

financially support the union may opt out of union membership, and the obligation

to pay union dues, by notifying the union within 30 days of being informed of the


                                           13
Thorpe v. Inslee, No. 92912-2


right to opt out. If an IP chooses not to opt out, he or she will be assessed monthly

union dues until such time as he or she opts out. I I An IP who has not opted out of

paying dues is treated as a member in good standing of SEID regardless of whether

he or she signs a membership card.

       Article 4 .1. C of the CBA provides that an IP who chooses to sign an SEID

membership card must pay all assessed union dues and fees unless and until the

card is validly revoked. Article 4.1.C further states, "The Employer shall honor the

terms and conditions of each home care worker's signed membership card."

SEID' s membership card provides in pertinent part:

       I hereby request and accept membership in SEID 775. I authorize 775
       to act as my exclusive representative in collective bargaining over
       wages, hours and other terms and conditions of employment with my
       employer(s). I authorize my employer(s) to deduct from my wages all
       Union dues and other fees or assessments as shall be certified by 775
       under its Constitution and Bylaws and to remit those amounts to 775.
       This authorization is irrevocable for a period of one year from the date
       of execution and from year to year thereafter unless not less than
       thirty (30) and not more than forty-five (45) days prior to the annual

       11
          Article 4 .1.B states in full:
        "The union shall notify each home care worker covered by this Agreement that he or she
is not required to join or financially support the Union. New home care workers will be notified
as soon as possible, but no later than fourteen (14) days from the Union receiving the home care
worker's contact information. The Union shall escrow the fee paid by a new home care worker in
an interest-bearing account. The fee shall remain in this account until the home care worker is
notified of the opportunity to opt-out and given thirty (30) calendar days to do so. If the home
care worker objects to paying the fee within thirty (30) days of the notification from the Union,
the Union shall, within twenty (20) days of receiving the notice from the home care worker,
refund the fee with interest (at the rate of interest it has received). The Union will notify the
Employer to cease further deductions in accordance with the Subsection 4.lC below." CP at 95.


                                               14
Thorpe v. Inslee, No. 92912-2


       anniversary date of this authorization or the termination of the
       contract between my employer and the Union, whichever occurs first,
       I notify the Union and my employer in writing, with my valid
       signature, of my desire to revoke this authorization.

CP at 382.

       Article 4.1.C thus requires every IP who has signed this membership card to

contribute to the union via a payroll deduction for the duration of the CBA, unless

he or she revokes this dues authorization within the annual 15-day "escape period"

specified on the card.

       Here, the CBA is very similar to the maintenance of membership union

security provision the NLRB upheld in Standard Lime. The language in the

Standard Lime CBA stated:

       All employees in the eligible unit at the plant shall have the right to
       belong to or not to belong to the Union, and upon receipt of written
       authorization from any employee who is a member of the Union the
       Company agrees that such employee shall maintain his membership in
       the Union for a period not to exceed one (1) year from the date of the
       written authorization, or the length of this contract if terminated prior
       to one ( 1) year after the date of said authorization, and the payment of
       dues shall satisfy this requirement.

Standard Lime, 95 N.L.R.B. at 629. The relevant union membership card stated,

"This authorization is to remain in full force and effect for a period of [sic] not to

exceed one (1) year from its date or the length of the existing agreement,

whichever is shorter." Standard Lime, 95 N.L.R.B. at 629. The employer in


                                           15
Thorpe v. Inslee, No. 92912-2


Standard Lime argued that the contractual language at issue was not a maintenance

of membership union security provision because it allowed employees to cancel

the authorization for dues deduction at any time. The NLRB rejected the

employer's arguments. The board held that the CBA language was a union security

provision, reasoning that "[t]he fact that the provision does not state that

maintenance of membership thereafter shall be a condition of employment does not

prevent the provision from operating as a union-security clause." Standard Lime,

95 N.L.R.B. at 630.

       Our analysis is consistent with federal labor law interpretation, and Thorpe

cites no cases or decisions supporting a more restrictive or different rule. Like the

CBA in Standard Lime, article 4.1.C requires members of SEIU to maintain their

membership for at least one year, or in perpetuity if they do not opt out. Simply

because the maintenance of membership is not a condition of employment does not

restrict the provision from operating as a union security clause. Full security is not

required.

       We agree with the trial court's reasoning that the purposes of union security

provisions are to encourage membership and predictability. VRP (Feb. 26, 2016) at

40. The CBA provision here promotes those purposes with its default scheme

wherein members pay dues but have no duty to join. We hold that the CBA


                                           16
Thorpe v. Inslee, No. 92912-2


contains a union security provision authorized in chapter 41.56 RCW. We affirm.




                                                                    /
                                                                I
WE CONCUR:




                    /
~.,a                       7




                                        17
