                                                                                                     FILED
                                                                                              COU RT OF APPEAIL.S
                                                                                                    t
                                                                                                    D4ifS! Ii



                                                                                            STS+;            HNGT 01

                                                                                             PY
                                                                                                       PUT        1


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

YAKIMA COUNTY and PUBLIC
EMPLOYMENT RELATIONS COMMISSION,
                                 Respondents,                                No. 42697 8 II
                                                                                       - -

                                                                        PUBLISHED OPINION


YAKIMA COUNTY LAW ENFORCEMENT
OFFICERS' GUILD,
                                 Appellant.



         VAN   DEREN, J. —Following a failed mediation over terms of a collective bargaining

agreement (CBA), Yakima County Law Enforcement Officers' Guild ( uild)and Yakima
               the                                             G
                                                                1
County certified disputed issues   to interest   arbitration.       Before the interest arbitration took place,

Yakima.
      County ( ounty)_
             an unfair labor practice with the Public Employment
             C      filed_

Relations Commission ( ERC),
                     P     alleging that the Guild had wrongfully argued permissive subjects

of bargaining to impasse and certified those permissive subjects of bargaining to interest

arbitration. The County unsuccessfully moved for summary judgment before the




1 " Interest arbitration is a process whereby, if the union and the employer cannot agree on a new
contract during collective bargaining, an arbitration panel will be formed to resolve any disputes
over the terms of the new contract."Snohomish County Pub. Transp. Benefit Area v. Pub. Emp't
Relations Comm'n, 42435 5,2013 WL 506559, at *2 Wash. Ct. App. February 12, 2013)
                No.     -                       (
citing RCW 41. 6.
           450).
             5
2
    If parties to a CBA are unable to agree on the terms of a subject of bargaining, they are said to
have reached       impasse."
                an "
No. 42697 8 II
          - -



hearing examiner, but the PERC reversed the hearing examiner, finding that the Guild's

proposals regarding release time were permissive, not mandatory, subjects of bargaining and

interest arbitration. The superior court affirmed the PERC's decision and issued its own order on .

the disputed issues.
        The Guild appeals, asserting that the two contested proposals are mandatory subjects of

bargaining and are subject to interest arbitration following impasse. The proposals involved paid

release time for ( )
                 1 Guild representatives to attend "
                                                   state or national meetings or conferences

concerning training in labor issues concerning administration of the [CBA] or law enforcement"

and (2)Guild officers to "
                         conduct or participate in general membership andor Guild board
                                                                         /

meetings concerning collective bargaining or enforcement of the [CBA]."
                                                                     Administrative

Record (AR)at 63 (underline omitted).The Guild also challenges the PERC's order prohibiting

the Guild from future bargaining to impasse on release time for meetings and travel, and it

asserts that the superior court exceeded its authority when it issued its separate order in this

administrative review matter.


       We affirm in part and reverse in part,holding that ( ) Guild's release time proposal - -
                                                          1 the

regarding conference attendance was a permissive subject of bargaining not properly certified to

interest arbitration; but ( ) Guild's release time proposal for Guild officers' attendance at
                          2 the

Guild membership and board meetings about collective bargaining issues and enforcement of the

CBA were properly certified to interest arbitration. We also vacate the PERC's order prohibiting

the Guild from bargaining release time proposals to impasse in the future, vacate the superior

3
 The Thurston County Superior Court's caption for the Guild's appeal, Cause No. 11 2- - 00385 7,-
differs from the caption on the PERC decision. For clarity, our caption conforms to the earlier
administrative decision, Yakima County v. Yakima County Law Enforcement Officers' Guild,No.
21632 U 08 5519, 2011 WL 125216, at *7 Wash.Pub. Emp't Relations Comm'n Jan. 11,
      - - -                            (
2011).See RAP 3. .
               4
                                                  2
No. 42697 8 II
          - -



court's subsequent separate order adopting the PERC's order, and remand to the PERC to

conduct interest arbitration on release time for Guild officers to attend union meetings relating to

the CBA.

                                                  FACTS


       On September 11, 2006, the Guild and the County began negotiating a new CBA. The

Guild submitted the following two release time proposals for negotiation:

       7.
        3      Guild Meetings
       A.      The [ G]ild may send one or two representatives to state or national
                      u
               meetings or conferences concerning training in labor issues concerning
               administration of the agreement          or   law enforcement. A total of twelve
               working days with pay are allowed per year, but no representative is
               allowed more than twelve working days with pay per year. Time off with
               or without pay shall not exceed five working days per. conference per
               person.
               The representatives or the Guild president shall give the Sheriff at least
               three weeks[']notice of each conference or meeting. If the conference or
               meeting is scheduled on an emergency basis, the representative or Guild
               president shall give the Sheriff notice as soon as is reasonably possible.
               The Sheriff may disallow attendance by the Guild representative if the
               Sheriff has a special need for that employee's expertise at the time of the
               conference, or if, because of an unforeseen shortage of available
               employees, the Sheriff cannot reasonably spare the employee at the time
               of the conference. -- - - - - -- - - -
       B.      The Sheriff may routinely allow Guild officers a reasonable amount of
               time while on duty to conduct or participate in general membership and or
                                                                                      /
               Guild board meetings concerning collective bargaining or enforcement of
                                                        r,la ;
               the agreement °  r
                                    t n t neeessar-
                                                  y           fin bus „ hie
                                                                        iness
               eannet other- ise be per-
                           w           fenned while off .    Guild representatives shall
               guard against undue interference with the assigned . uties and against the
                                                                  d
               use of excessive time in performing such
                                                                         5]
                                                        responsibilities. [

4
 The PERC also addressed a third release time proposal for Guild financial business that the
Guild had withdrawn from interest arbitration, believing that it was still at issue. On appeal, the
Guild and the County make it clear that release time for Guild financial business that cannot
otherwise be performed while off duty is no longer at issue in this case, as it was struck from the
issues submitted to interest arbitration.

5
 Legislative draft form is used to indicate changes between the provisions in the existing CBA
and the proposal made during the negotiations. Although several different proposals were made
                                                        3
No. 42697 8 II
          - -



AR at 63.


         The Guild and the County failed to reach an agreement and engaged in mediation.

During mediation, the County repeatedly identified the Guild's release time proposals as

permissive subjects of bargaining. After several months of mediation,the parties failed to come

to an agreement on multiple issues, including union release time, and those issues were

submitted to interest arbitration. PERC's executive director certified a list of issues at impasse"
                                                                                  "

to be submitted to interest arbitration. AR 161.


         The County then filed a complaint with the PERC alleging that the Guild had " ommitted
                                                                                     c

unfair labor practices by advancing to interest arbitration nonmandatory andor illegal subjects of
                                                                            /

collective bargaining."AR 14;RCW 41. 6. The Guild denied the County's unfair labor
                                 150.
                                   5

practice allegations. PERC's executive director suspended interest arbitration for release time.

         The County filed a motion for summary judgment. Both parties agree that the facts are

not in dispute. The County argued that the Guild's release time proposals' were illegal subjects

of bargaining because they induced the County to commit an unfair labor practice by financially

assisting theGuild. The County -
                               also claimed that "he subject matter permissive and not - -
                                             - t

subject to impasse and interest arbitration."AR at 243. The Guild argued that not only were the

proposals not illegal, but they were mandatory subjects of bargaining because they were directly



during negotiations, the proposal as stated is the one that the Guild attempted to certify to interest
arbitration.

6
    We note that during oral argument it appeared that the County was not disputing release time
for Guild meetings dealing with the CBA or any of the existing CBA release time language; but
its briefing indicated that it disputes all release time proposed by the Guild that was argued to
impasse. Wash. Court of Appeals oral argument, Yakima County v. Yakima County Law
Enforcement Officers' Guild,No. 42697-
                                11-  8 Nov. 27,2012), 17 min., sec. on file with
                                        (           at       33     (
court).

                                                   M
No. 42697 8 II
          - -



related to wages, hours, andworking conditions and, thus, it was not an unfair labor practice to

argue those subjects to impasse.

       The hearing examiner determined that "[ he bargaining proposals did not induce the
                                            t]

employer to commit an unfair labor practice by financially assisting the union."AR at 323. The

hearing examiner also concluded that " he [ elease time] proposals as refined by the bargaining
                                     t    r

cess and
pr[ ] eventually submitted to interest arbitration involve[d]
  o                                                         mandatory subjects of

bargaining"and dismissed the County's unfair labor practice complaint. AR at 323.

       The PERC reversed the hearing examiner's decision, decided that the Guild committed

an unfair labor practice by bargaining a permissive subject to impasse, and issued a prospective

cease and desist order. After addressing each provision of the release time proposals separately,

including the withdrawn portion of the Guild's earlier proposal, the PERC determined that each

release time proposal was a permissive subject of bargaining. The PERC therefore concluded

that the Guild committed an unfair labor practice by attempting to bargain the release time

proposals to impasse.

       The PERC the hearing examiner's conclusions of aw and entered is - - -- - --

conclusions of law:


       3.      The ...  Guild unlawfully insisted to impasse on a proposal concerning
               paid employee leave to attend meetings or conferences concerning. raining
                                                                               t
               in labor issues concerning administration of the agreement or law
               enforcement in violation of RCW 41. 6. (1).
                                               150(
                                                  4 and
                                                  5 )
       4.      The ...   Guild unlawfully insisted to impasse on a proposal concerning
               paid release time   for   employees   to  conduct or participate in general
               membership   and or union board
                                /                    meetings   concerning        collective
               bargaining or enforcement of the agreement or to   conduct   necessary
               union financial business which cannot otherwise be performed while off
               duty in violation of Chapter 41. 6 RCW.
                                              5




                                                     5
No. 42697 8 II
          - -



AR at 374 75. The PERC also ordered the Guild to cease and desist bargaining release time
          -

proposals to impasse and ordered the Guild to withdraw its release time proposal. The superior
court affirmed the PERC's decision in full and issued its own order adopting verbatim the

PERC's cease and desist order. The Guild timely appeals.
                                          ANALYSIS


I.     STANDARD OF REVIEW


       The administrative procedure act (APA),
                                             chapter 34. 5 RCW,governs our review of a
                                                       0

PERC decision in an unfair labor case. Pasco Police Officers' Ass'n v. City ofPasco, 132

Wn. d 450,458, 938 P. d 827 (1997).We review the PERC's decision, not that of the hearing \
  2                 2

examiner or the superior court. Pub. Emp't Relations Comm'n v. City of Vancouver, 107 Wn.

App. 694, 703, 33 P. d 74 (2001).We will reverse the PERC's decision if we determine that the
                   3

PERC erroneously interpreted or applied the law. RCW 34. 5.We review
                                                     d).
                                                     570(
                                                        3)(
                                                        0

conclusions of law de novo and may substitute our interpretation of the law for the PERC's

interpretation. Pasco Police, 132 Wn. d at 458.
                                    2

       We review an order granting sumrnar Jud g mentde novo engaging - the -
                    -                    YJ      -   -         gg g in
                                                                a


as the body that decided it,here the PERC. Quadrant Corp. v. Am. States Ins. Co. 154 Wn. d
                                                                                       2

165, 171, 110 P. d 733 (2005).Summary judgment is appropriate when there is no genuine
               3

issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56( ).
                                                                                             c

Because the parties agree that there are no issues of material fact, we need only determine

whether the County was entitled to judgment as a matter of law.


7 In its opening brief the Guild assigns error only to the actions of the superior court. As the
County correctly points out, our review is of the PERC's decision, not that of the superior court.
Br.of Resp't at 10 (citing Int'l Ass'n offirefighters, Local No. 469 v. Pub. Emp't Relations
Comm'n, Wn. App. 572, 575 76,686 P. d 1122 (1984)).
      38                  -       2

                                                 3
10 . .   Z•



II.      UNFAIR LABOR PRACTICES


         It is an unfair labor practice for a bargaining representative to induce a public employer

to commit an unfair labor practice. RCW 41. 6.It is also an unfair labor practice for a
                                        150(
                                           2
                                           5 ).

bargaining representative to refuse to engage in collective bargaining. RCW 41. 6.
                                                                            150(
                                                                               4
                                                                               5 ).

Under RCW 41. 6.
          030(
             4 c] "[
             5 ),ollective bargaining"means

         the performance of the mutual obligations of the , public employer and the
         exclusive bargaining representative to meet at reasonable times, to confer and
         negotiate in good faith, and to execute a written agreement with respect to
         grievance procedures and collective negotiations on personnel matters, including
         wages, hours and working conditions, which may be peculiar to an appropriate
         bargaining unit of such public employer, except that by such obligation neither
         party shall be compelled to agree to a proposal or be required to make a
         concession unless otherwise provided in this chapter.

         There are "three broad categories of issues related to collective bargaining: (
                                                                                       1)

mandatory issues, 2)
                  ( permissive issues, and (3)illegal issues."Patrol Lieutenants Ass'n v.

Sandberg, 88 Wn. App. 652, 657, 946 . . d 404 ( 997).Illegal issues are not the proper subject
                                    P2        1

of collective bargaining and may not be considered in the collective bargaining process.

Sandberg, 88 Wn. App. at 657 58. Thus, a union unlawfiilly refuses to bargain or induces an
                             -

employer to commit an unfair labor practice if it insists on an illegal proposal. Burlington Police

Emps. Guildv. City ofBurlington, No. 12561- 986,
                                     1997-117651, at *8 Wash. Pub
                                     96-  2
                                          U WL          (

Emp't Relations Comm'n Feb. 19, 1997).It is also an unfair labor practice for an employer to

interfere with or dominate a union by providing financial support, and a proposal that would

require the employer to do so is illegal. RCW 41. 6.
                                              140(
                                                 2 Burlington Police, 1997 WL
                                                 5 );

117651; at *
           8.

         Parties to a CBA must bargain in good faith on mandatory issues. Sandberg, 88 Wn.

App. at 657. " n contrast, the parties may negotiate over `permissive' or ` onmandatory'
             I                                                            n


                                                   7
No. 42697 8 II
          - -



subjects, but they are not obliged to do so."
                                            Sandberg, 88 Wn.App. at 657 (emphasis added).

Although permissive subjects of bargaining, unlike illegal subjects, may be negotiated, it is an

unfair labor practice to bargain to impasse over a permissive subject of bargaining. Klauder v.

San Juan County Deputy Sheriffs' Guild, 107 Wn. d 338, 342, 728 P. d 1044 (1986).Thus,
                                              2                  2

categorizing a subject of bargaining as mandatory or permissive determines whether one party

may argue the issue to impasse without engaging in an unfair labor practice.

       W]ges, hours and other terms and conditions of employment are subjects about which
        a

the parties must bargain, and are categorized as `mandatory' subjects."Klauder, 107 Wn. d at
                                                                                      2

341. Mandatory subjects of bargaining are "limited to matters of direct concern to employees."

Int'l Ass'n ofFire Fighters, Local Union 1052 v. Pub. Emp't Relations Comm'n, Wn. d
                                                                            113 2

197, 200, 778 P. d 32 (1989).Permissive subjects of bargaining include "[
               2                                                       m] anagerial decisions

that only remotely affect ` ersonnel matters',and decisions that are predominately `managerial
                          p

prerogatives. "' Fire Fighters, Local 1052, 113 Wn. d at 200.
                                                  2

       A balancing test is used to determine whether a subject is a mandatory or permissive

subject of bargaining. Fire FightersJocal 1052, 113 Wn. d at 201 Under Fire Fighters,
                                                      2 -

Local 1052 test, we balance " he relationship the subject bears to `wages, hours and working
                            t

conditions "'   and " he extent to which the subject lies `at the core of the entrepreneurial control'
                    t

or is a management prerogative." 113 Wn. d at 203 (internal quotation marks omitted)quoting
                                       2                                            (

Spokane Educ. Ass'n v. Barnes, 83 Wn. d 366, 376, 517 P. d 1362 (1974)): focus of the
                                    2                  2              The

balancing test is " o determine which of these characteristics predominates."Fire Fighters,
                  t

Local 1052, 113 Wn. d at 203.
                  2




                                                    N.
No. 42697 8 II
          - -



11.      THE GUILD'S PROPOSALS


         The PERC ruled that the Guild committed an unfair labor practice when it bargained to

impasse on its release time proposals and the PERC issued a cease and desist order preventing

the Guild from arguing to impasse in the future on any of its release time proposals. We affirm
the PERC's decision on release time for travel and conferences as proposed; but we reverse and

vacate its decision about release time for Guild officers to attend union meetings addressing

collective bargaining and enforcement of the CBA and we vacate the PERC's cease and desist

order.


         A. Release Time for Union Business


         The County accused the Guild of committing an unfair labor practice by submitting a

proposal for paid Guild officer release time for union meetings relating to the CBA to interest

arbitration because it was both illegal and a permissive subject of bargaining. The PERC agreed

with the County. We disagree.
         Paid release time to conduct union business is a mandatory subject of bargaining if the

unionbusiness involves the direct administration of the agreement between the employer and the
                                                                                            -

union. Axelson, Inc.,
                    Subsidiary of U. .Indus.,Inc. v. Nat'l Labor Relations Bd., F. d 91,
                                  A.
                                   S                                          599 2

8
    Although the PERC's order included release time for financial matters in addition to the two
release time proposals at issue here, the Guild withdrew that portion of the proposal and, thus, it
was not properly before the PERC in the adjudication of the disputed release time proposals. We
address the prospective nature of PERC's,  ruling on this issue later in this opinion.

9 .Even if a proposal is legal, it may be a permissive subject of bargainingone that cannot be
                                                                            —
argued to impasse. Klauder, 107 Wn. d at 342. The Guild's briefing addresses whether its
                                        2
proposal is a mandatory subject of bargaining and whether the proposal is legal based on the
County's position that it could not contribute financial support to a union by authorizing paid
release time. But at oral argument, the County also raised an objection based on its illegally
controlling a union's business if it had to give release time for union meeting attendance. Wash.
Court of Appeals oral argument, Law Enforcement Officers Guild, No.42697- 11- 27,
                                                                               8 Nov.  (
2012), 26 min., sec. on file with court).
     at       37     (
                                                  9
No. 42697 8 II
          - -



95 (5th Cir. 1979) paid release time for time spent in negotiation with employer is mandatory
                   (

subject); l Labor Relations Bd. v. BASF Wyandotte Corp., F. d 849, 852 53 (
        Nat'                                           798 2           - 5th Cir.

1986) paid time to union stewards for performance of union duties is mandatory subject).In its
      (

decision, the PERC provided an illustrative list of examples of direct administration: l"abor

management meetings, the processing and adjustment of grievances, and negotiations regarding

changes to the existing agreement."Yakima County v. Yakima County Law Enforcement

Officers' Guild,No. 21632- 519,WL 125216, at * Wash. Pub. Emp't Relations
                    2011-
                    08-  5
                         U                   7 (

Comm'n Jan. 11, 2011).

       Here, the PERC concluded, and the County now argues, that the proposal for paid release

time was not a mandatory subject of bargaining because it was only indirectly related to the

administration of the agreement in that it did not involve direct interaction with the employer.

The PERC's decision and the County's argument on appeal rely on the same three PERC

decisions—
         Enumclaw Educ. Assn v. Enumclaw Sch. Dist.,
                                                   Decision 222, 1977 WL 182045

Wash. Pub. Emp't Relations Comm'n Mar. 31, 1977),
                                                City ofPasco v. Int'l Ass'n ofFire

Fighters, Local 1433,No.8521 U 90= - ;1990 656237 Wash.Emp't Relations -
                             - = 1841             (

Comm'n Sept.. 1990), Burlington Police, 1997 WL 117651 in which the PERC
            27,    and                                 =

concluded that proposals related to union release time were unfair labor practices.

       Although the PERC and the County cited these cases in support of their claims that the

paid release time proposals were permissive subjects of bargaining, the cases actually address

whether such proposals were illegal subjects of bargaining. We address these cases to clarify

that the Guild's proposal on paid release time for Guild officers to attend union meetings here is

distinguishable from those in the cases the County relies upon and, thus, is not illegal.



                                                 10
No. 42697 8 II
          - -



       In Enumclaw Education Assn,the PERC concluded that the association's proposal for 20

days' paid release time to conduct " ssociation business"was improper because it would result
                                   a

in financial support to a union. 1977 WL 182045, at *2 3. The PERC reasoned that "[ nder the
                                                       -                         u]

terms of the [a]
               ssociation's proposal, none of the released time need be spent meeting or

conferring with the employer or its representatives. It may be spent on any association business,

including organizing the employees of some other school district."Enumclaw Educ. Ass'n,1977

WL 182045, at *2. In Fire Fighters, Local 1433,the PERC concluded that a proposal for.96

hours paid leave per year " or conduct of union business"suffered from the same "fatal defect"
                          f               [ ]
as the clause in Enumclaw Education Ass'n because it put " o limitation whatever on the
                                                         n

purposes for which the union could use the 96 hours per year of employer paid leave time."
                                                                         -
1990 WL 656237, at *7,9. The PERC concluded that "[ he union could easily have proposed
                                                 t]

modifications to cure the `unrestricted' problem identified by the [PERC] and court in

Enumclaw Education Ass'n], chose not to do so." Fighters, Local 1433, 1990 WL
                        but                   Fire
656237, at *8.Thus, the PERC concluded that the union committed an unfair labor practice by

arguing a nonmandatory subject ofbargainingtoimpasse.Fire Fighters, Local 14331990 WL
        -                                            -
656237, at *
           7.

        In Burlington Police, the PERC concluded that a proposal for 40 hours of paid leave to

the guild's president " or guild business such as attending labor conventions, conferences, or
                      f [ ]

seminars"was illegal,based on the reasoning in Enumclaw Education Ass'n and Fire Fighters,
Local 1433. 1997 WL 117651, at * 8 internal quotation marks omitted).
                               7 -(

        The PERC's reliance on these cases for invalidating the Guild's proposal caused it to

interpret too narrowly the Guild's role in administration and enforcement of the CBA. And in
reaching its decision, the PERC interpreted the Guild's proposal too broadly. The PERC's
                                                11
No. 42697 8 II
          - -



decision states, Thus,the union's proposal would allow all bargaining unit employees a
                 "

reasonable amount of paid release time to attend general membership meetings or board

meetings that concerned either collective bargaining or enforcement of the collective bargaining

agreement."AR at 373 (first emphasis added).But the Guild did not propose that all employees

receive paid release time for meetings. Rather, it proposed, The Sheriff may routinely allow
                                                             "

Guild officers a reasonable amount of time while on duty to conduct or participate in"such

meetings. AR at 63.

       The Guild asserts, and we agree, that its proposed restriction on release time for Guild

officers to attend meetings related to collective bargaining or the enforcement of the agreement

cures the proposal of illegality. The Guild proposed paid release time for its officers to attend

membership or board meetings related to the enforcement and administration of the agreement

between the Guild and the County. Thus, unlike the proposals in Enumclaw Education Ass'n

and its progeny,the proposal here does not provide for release time for " nion business"
                                                                        u

generally, but rather, for union business related directly to its CBA with the County. See

BurlingtonPolice, -
                1997 WL 117651; - 7 8;
                              at * =Fire Fighters, local 14331990 WL 656237, at

7;Enumclaw Educ. Ass'n,1977 WL 182045, at *
                                          2.

       Turning to the issue of whether the proposal was a permissive or mandatory subject of

bargaining, we note that by restricting release time to union business directly involving the

County ( . the County representatives must also be included in any such meeting), PERC
       ie.,                                                                     the

ignores the duties imposed on Guild board members to represent the Guild's members in

discussions of wages, hours, and working conditions governed by the CBA,as well their duty to

process grievances or potential grievances, all of which affect each member and which, without

exception, ultimately involve the County.

                                                 12
No. 42697 8 II
          - -



       Our Supreme Court has interpreted RCW 41. 6. impose a duty of fair
                                             080 to
                                               5
representation on unions because of their status as the exclusive bargaining agent for their
members. Allen v. Seattle Police Officers' Guild, 100 Wn. d 361, 371 72,670 P. d 246 (1983).
                                                        2            -       2

A union breaches its duty of fair representation when its conduct is discriminatory, arbitrary, or

in bad faith."
             Muir       v.   Council 2 Wash. State Council   of County & City Emps.,154 Wn. App.

528, 531, 225 P. d 1024 (2009).The doctrine applies not only to "`
               3                                                negotiating, administering or

enforcing   a   collective   bargaining agreement, "' but also to " ay to day adjustments in the
                                                                  d     - -

contract and other working rules, resolutions of new problems and protection of employee rights

already secured by contract."Allen, 100 Wn. d at 372 73 (internal quotation marks omitted)
                                          2          -
quoting Allen v. Seattle Police Officers' Guild, 32 Wn. App. 56, 64, 645 P. d 1113 (1982),
                                                                          2
aff'd,100 Wn. d 361. " n the context of grievance processing, the duty of fair representation
            2        I
prohibits a union from ignoring a meritorious grievance or processing a grievance in a
perfunctory manner."Muir, 154 Wn. App. at 531.

        Because union representatives' duties include fairly and adequately representing

employees,union representatives cannot legallybreach duty by failing to monitort e - -
members' concerns about the CBA, by failing to adequately prepare for negotiations or

grievance issues that involve employers, or by failing to enforce members' rights secured by the
CBA. Under the Fire Fighters, Local 1052 balancing test, we examine "the relationship the

subj ect bears       wages, hours and
                  to `                    working conditions "' and " he extent to which the subj ect lies
                                                                    t




 to RCW 41. 6.provides:
        080 5
       The bargaining representative which has been determined to represent a majority
        of the employees in a bargaining unit shall be certified by the commission as the
        exclusive bargaining representative of, and shall be required to represent, all the
        public employees within the unit without regard to membership in said bargaining
        representative.
                                                       13
No. 42697 8 II
          - -



at the core of the entrepreneurial control' or is a management prerogative."113 Wn. d at 203
                                                                                  2

internal quotation marks omitted)quoting Barnes, 83 Wn. d at 376).Applying this test here, it
                                  (                   2

is clear that the Guild's interest in performing its duties to its members regarding wages, hours,

and working conditions predominates in this portion of the Guild's proposal for paid release

time. Fire Fighters, Local 1052, 113 Wn. d at 203.
                                       2

       Thus, the County's contention that the Guild's proposed paid release time for collective

bargaining or enforcement of the agreement is a permissive subject of bargaining fails, as the

preparation for those activities is inextricably intertwined with wages, hours, and working

conditions covered by the CBA that are mandatory subjects of bargaining. We conclude that the

PERC erred in characterizing negotiation of Guild board members' release time,for meetings

concerning the CBA as a permissive subject of bargaining.

       Accordingly, we hold that the Guild did not commit an unfair labor practice by

submitting an illegal proposal to interest arbitration; and it did not commit an unfair labor

practice by bargaining a permissive subject of bargaining to impasse and by certifying to interest
arbitrationthe issue of release time for Guild -
                     -                         officers to attend Guild meetings dealing with the - -
                                                        - -                              -

CBA. We reverse the PERC's order and remand for interest arbitration on release time for Guild

board members to attend membership and board meetings dealing with the CBA and its

enforcement.


        B. Release Time for Union Training

        The County also asserts that the Guild committed an unfair labor practice by submitting

the issue of release time for travel and attendance at conferences relating to labor issues to

interest arbitration because paid release time for union training is a permissive subject of

bargaining. The Guild argues that because the provision relates to paid release time " or
                                                                                     f
                                                  14
No. 42697 8 II
          - -



purposes associated with the employer's business," directly impacts wages, hours, and working
                                                 it

conditions and is a mandatory subject of bargaining. Br. of Appellant at 34.

       The PERC ruled that because this particular provision related to discretionary training, it

was unrelated to wages, hours, and working conditions that provide for mandatory interest

arbitration. Therefore, paid release time for union training was a permissive subject of

bargaining and the Guild committed an unfair labor practice by attempting to certify the proposal

to interest arbitration. We hold that the PERC properly determined that the Guild's specific

proposal for paid release time for discretionary union training was a permissive subject of

bargaining but that the Guild's proposal was not illegal.

       The PERC's earlier reasoning in International Ass'n ofFire Fighters, Local 2916 v.

Spokane County Fire District 9,No. 7300 U 88 1506, 1991 WL 733708 (Wash. Pub. Emp't
                                        - - -

Relations Comm'n 1991) is instructive. In Fire Fighters, Local 2916,the county began

developing performance standards by creating and evaluating different aspects of a training .

system. 1991 WL 733708, at *     1. The union objected to the development of the performance

standards because a   potential would   exist for   disciplinary   action   against anion
                                                                                    -          o - - -




failed to meet the proposed performance standards. Fire Fighters, Local 2916, 1991 WL

733708, at *   1. The PERC determined that training and performance standards fell squarely

within managerial prerogatives and were, thus, permissive subjects of bargaining. Fire Fighters,

Local 2916, 1991 WL 733708, at * But the consequences of those training and performance
                               4.

standards (i. discipline for failing to meet required performance standards)could be a
            e.,

mandatory subject of bargaining. Fire Fighters, Local 2916, 1991 WL 733708, at *34.

        Here, the Guild's proposal about conference and travel release time provides for Guild

representatives to attend training and conferences of the Guild's choosing. The training at issue
                                                      15
No. 42697 8 II
          - -



in this proposal is not required by the County. Further, there are no consequences imposed by

the County if the Guild members fail to attend the training or conferences. Therefore, the

Guild's specific proposal does not have a broad effect on wages, hours, or working conditions of

Guild members. On the other hand, if the County required Guild members to attend training on

labor and.law enforcement issues but provided no paid leave or disciplined employees for failure

to meet standards for which no training was provided, a proposal for paid release time to attend

the training would be a mandatory subject of bargaining. Fire Fighters, Local 2916, 1991 WL
733708, at * 4. But that is not the case here.
           3 -

        The Guild argues that because the proposal is limited to training related to only labor and

law enforcement issues, the training is associated with the employer's business and is mutually

beneficial to both the County and the Guild,thus curing the defect in the proposal. The Guild is

correct that demonstrating a sufficient nexus between.the release time and the bargaining

relationship between the Guild and the County may cure the proposal of illegality. Fire

Fighters, Local 1433, 1990 WL 656237, at *8. But it cannot change a permissive subject of

bargaining into a mandatory subject of bargaining: - - - -
                -           -

        We hold that the Guild's proposal concerning paid release time for union training is a

permissive subject of bargaining and the Guild committed an unfair labor practice by bargaining

the proposal to impasse and attempting to certify the issue to interest arbitration.

111.    THE PERC CEASE AND DESIST ORDER


        The Guild also argues that " he vague and overbroad nature of the PERC order will likely
                                   t

create future compliance questions."Br. of Appellant at 40. After adjudicating the specific

issues before it,the PERC ordered the Guild to cease and desist from:




                                                 0
No. 42697 8 II
          - -



       Refusing to bargain collectively with [the] County by insisting to impasse on
       proposals concerning paid release time for attendance at state or national meetings
       or conferences concerning training in labor issues concerning administration of
       the agreement or law enforcement and paid release time to conduct or participate
       in general membership meetings and or union board meetings concerning
                                                /
       collective bargaining or enforcement of the agreement on to conduct necessary
       union financial business which cannot otherwise be performed while off duty.

AR at 375. We first note that this order includes restrictions relating to language that was

stricken by the Guild during its negotiations or mediation with the County referring to union

financial business. By including this proscription in its cease and desist order, the PERC's order

clearly exceeded the scope of the adjudication before it'nd that portion of the order is,instead, a
                                                        a

prospective ruling or policy not arising from the disputed issues.

        Such a result is not appropriate under the narrow scope of adjudication under the

Washington APA. Because the Washington APA limits adjudicative orders to those deciding the

rights, duties, privileges, immunities, or other legal interests of specific persons, we conclude

that the PERC may not issue adjudicative orders with only prospective effect. RCW

a).
010( 1)(
34. 5. also Snohomish County Pub. Transp. Benefit Area v. Pub. Emp't
   1
   0   See

Relations Comm'
          - No,
              n 42435 5,
                      - 2013 WL 506559 at * (
                                          4 Wash. Ct.App. February 12;2013).

        The APA provides two primary sets of proceedings for agency action: rulemaking and

adjudication. RCW 34. 5. -. RCW 34. 5. -. Rulemaking requires agencies to
                  310 395;
                    0           410 494.
                                  0

give public notice of proposed rules and allow for public comment. RCW 34. 5.325. The
                                                                       320, .
                                                                         0

APA defines an "[
               a] djudicative proceeding"as one where an opportunity for a hearing is

required " efore or after the entry of an order by the agency."RCW 34. 5.Order,'
         b                                                         010(
                                                                      1
                                                                      0 ). "`

without further qualification, means a written statement of particular applicability that finally

determines the legal rights, duties, privileges, immunities, or other legal interests ofa specific

person or persons."RCW 34. 5.
                       a) added).
                       010( 1)(
                          1
                          0  emphasis (

                                                  17
No. 42697 8 II
          - -



       In contrast, agencies are not required to give public notice of adjudicative proceedings or

to allow for public comment. RCW 34. 5. But they must allow an opportunity for hearing.
                                 434.
                                   0

RCW 34. 5.There was no hearing about release time for Guild board members to
    010(
       1
       0 ).

conduct necessary union financial business that cannot otherwise be performed while off duty

because that language was stricken before the Guild requested interest arbitration of the release

time provisions. Thus, the PERC's order restraining the Guild on that issue has no place in this

adjudication and must be vacated.

       Second, we reverse the PERC's determination that release time for general membership

meetings and or union board meetings concerning collective bargaining or enforcement of the
             /

CBA is a permissive and not a mandatory bargaining subject. Thus, this portion of the cease and

desist order must also be vacated.


       Finally, the Guild asserts that "[ nder the literal wording of th[ ]PERC order, the Guild
                                       u]                               e

would be restrained from presenting alternative formulations of release time language that might

otherwise be negotiable simply because they touch upon these subjects."Br. of Appellant at 41.

We agree that the PERC's order mustbe vacated inits entiretyas it unreasonably creates a prior -

restraint on the Guild's collective bargaining rights. While the intent of the order may relate to

the just-
        completed adjudication, we agree with the Guild that the language can be interpreted as

prospectively ordering the Guild to not raise and bargain to impasse an issue of release time

related to any of the three categories of activity in the future.

        Because we vacate the portions of the order addressing release time for meetings and for

financial affairs, we focus in this discussion on the portion of the PERC order stating that the

Guild must immediately cease and desist "[
                                        r] to bargain collectively with [ he] County by
                                           efusing                      t

insisting   to   impasse   on   proposals concerning paid release time   for attendance at state   or   national
No. 42697 8 II
          - -



meetings or conferences concerning training in labor issues."AR at 375. The PERC resolved

the existing dispute about whether release time for training was permissive or mandatory, and we

agree with the PERC's resolution of this issue based on the proposed language. But paid release

time for   training   is not per   se a no -   mandatory subject of bargaining, and this portion of the order

restrains the Guild from future bargaining to impasse its position on release time for state or

national meetings or conferences relating to labor negotiations or agreements without an

indication of what those specific proposals might include. As such, the order exceeds the dispute

before the PERC and attempts to determine the legal rights, duties,privileges, immunities, or

other legal interests of the Guild and the County in the absence of a dispute. In other words, the
order adjudicates without a hearing, which hearing is required `.`
                                                               before or after the entry of an

order by the agency."RCW 34. 5.In doing so,the PERC exceeded its authority to issue
                         010(
                            1
                            0 ).

an adjudicative order on the issue. We vacate that portion of the order as well,resulting in the

entire PERC cease and desist order being vacated.

IV.        THE SUPERIOR COURT'S ORDER


       Finally,the Guild appeals the superior court's order, arguing the superior court lacks -
                                  -

the authority to issue its own order when reviewing agency action. The Guild is correct.

        When reviewing an agency order in an adjudicative proceeding, the trial " ourt may (a)
                                                                                c

affirin the agency action or ( )
                             b order an agency to take action required by law,order an agency to

exercise discretion required by law, set aside agency action, enjoin or stay the agency action,

remand the matter for further proceedings, or enter a declaratory judgment order."
                                                                                 RCW

574(
34. 5.In other words,the trial court is limited to ruling solely on the agency's decision
   1
   0 ).

and may not issue orders making its own rulings regarding the substance of the dispute. We

vacate the superior court's order.

                                                           19
No. 42697 8 II
          - -



       We affirm the PERC's ruling that the Guild's specific proposal on discretionary release

time for travel and conferences is subject only to permissive bargaining. We reverse its ruling

and remand to the PERC for mandatory interest arbitration on release time for Guild board

members to attend meetings on collective bargaining and enforcement of the CBA because the

proposal was neither illegal nor was it a nonmandatory subject of bargaining. We also vacate

PERC's cease and desist order and the superior court's order.



                                                  VAN DEREN, J.
I concur:




HUNT, J.




                                                20
No. 42697 8 II
          - -



            BRINTNALL, J. dissenting) — I agree that the Yakima County Law Enforcement
       QUINN-             (


Officers' Guild's Guild) first proposal regarding paid leave for training and attendance at
                  (

national conferences is a permissive subject of bargaining and was improperly certified for

interest arbitration.    And although I agree with the majority's analysis of the Guild's second

proposal as they interpret it,I believe that their interpretation is based on an amended reading of
the Guild's   proposal. In my opinion, as written, the Guild's proposal is an illegal subject of

bargaining. Therefore, the Guild committed an unfair labor practice by certifying the proposal to
interest arbitration.


        The Guild's proposal reads,

        B.       The Sheriff may routinely allow Guild officers a reasonable amount of
                 time while on duty to conduct or participate in general membership and or
                                                                                        /
                 Guild board meetings concerning collective bargaining or enforcement of
                                                                           fir
                                               a
                 the agreement a
                               +                                    Gu           1 busi i,
                                                                                 - s
                                                                                   nes   i.,
                                                                                          e                 -
                 eamie     th   e be per while ^ duty Guild representatives shall
                                                      g
                 guard against undue interference with the assigned duties and against the
                                                                         11]
                 use   of excessive time in   performing     such   responsibilities. [

Administrative Record at 63.          The majority's reading ignores the "and or"language of the
                                                                              /

proposal, ands as a result, amends the "concerning collective bargaining or enforcement of the
                          to    modify both general membership and Guild board meetings.          But as
agreement" language

written, the " concerning collective bargaining or enforcement of the agreement" language

modifies     only Guild   board    meetings.       General membership meetings remain unconstrained,

meaning that under the proposal Guild officers could request time off to attend any general




   Legislative draft form is used to indicate changes between the provisions in the existing
collective    bargaining agreement      and . the    proposal   made    during the negotiations. Although
several different proposals were made during negotiations, the proposal as stated is the one that
the Guild attempted to certify to interest arbitration.
                                                        21
No. 42697 8 II
          - -



membership meeting, not simply those related to the collective bargaining agreement between

the Guild and Yakima County.

       Because Guild officers would be able to receive paid release time to perform any Guild

function, the Guild's proposal suffers from the same defects as the proposals in Enumclaw

Education Association v. Enumclaw School District, Decision 222, 1977 WL 182045 (Wash.

Pub. Emp't Relations Comm'n Mar. 31, 1977),
                                          City ofPasco v. International Association ofFire

Fighters, Local 1433, No. 8521 U 90 1841, 1990 WL 656237 (Wash. Pub. Emp't Relations
                               - - -
Comm'n Sept. 27, 1990),and Burlington Police Employees Guild v. City of Burlington, No.

12561 U 96 2986, 1997 WL 117651 ( Wash. Pub. Emp't Relations Comm'n Feb. 19, 1997).
      - - -

Accordingly, the Guild committed an unfair labor practice by certifying its proposal to interest
arbitration.


       I would like to note that if the Guild's proposal was written as the majority reads it,

limited to the topic of collective bargaining and enforcement, I would agree that the proposal was

a mandatory subject of bargaining. But we do not have the authority to rewrite a proposal so that

an illegal or permissive proposal becomes mandatory.

        I concur without reservation in the majority's decision regarding the Guild's proposal

related to paid release time for training and attending national conferences. Because I disagree

with the majority's amending by interpretation the Guild's actual proposal related to paid release

time for Guild membership and board meetings, I respectfully dissent.




                                                     Q INN-
                                                          BRINTNALL, J.



                                                22
