By Jordan L. Jones
In Int’l Union of Police Ass’n, Local 748 v. Kitsap County, the Court of Appeals of Washington, Division One held that a trial court erred when it awarded attorney fees incurred in an Unfair Labor Practice ULP (ULP) proceeding to the Kitsap County Sheriff’s Office Lieutenant’s Association under the state wage law.
The court stated that a ULP proceeding “is not an ‘action’ for a ‘judgment of wages’ within the meaning of RCW 49.48.030.” The court also noted that even if the trial court had authority under RCW 49.48.030, “it exceeded its authority here, because the extraordinary circumstances necessary for an award of attorney fees under the PERC’s [i.e., Public Employment Relations Commission] governing statute, RCW 41.56.160, were absent.” The court noted that extraordinary circumstances arise where the employer has “engaged in a repetitive pattern of illegal conduct, egregious or willful bad acts, and/or when an employer has offered frivolous or meritless defenses to a ULP allegation.”
In 2009, the Union filed a complaint with PERC alleging that Kitsap County had committed a ULP which was in violation of the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW. The Union alleged that the County unilaterally altered the status quo of their CBA when it withheld from employees’ pay checks the amount of an increase in health insurance premiums. The PERC hearing examiner “concluded that because the County’s withholding of sums in excess of the designated employee contribution rate was a unilateral change in the status quo, it constituted a ULP.” Subsequently, the Union filed suit in Kitsap County Superior Court, “seeking a judgment for the attorney fees . . . incurred in the ULP proceeding [under RCW 49.48.030].” The trial court granted the Union’s motion for attorney fees.
On appeal, the County contended that the trial court’s judgment was improper because “the statutory provision relied upon, RCW 49.48.030, does not apply to attorney fees . . . incurred during . . . ULP proceedings instituted pursuant to [PECBA] . . . .”
The court noted that “RCW 49.48.030 authorizes an award of attorney fees for employees who must sue in order to collect wages owed from their employers.” RCW 49.48.030 provides that:
In any action in which any person is successful in recovering judgment for wages or salary owed to him or her, reasonable attorney’s fees, in an amount to be determined by the court, shall be assessed against said employer or former employer.
The court stated that “an administrative proceeding [such as the ULP hearing] is not an ‘action’ for a ‘judgment for wages’ within the meaning of RCW 49.48.030.” The court noted that the Washington Supreme Court has held that “the plain meaning of the term ‘action,’ as used in . . . [RCW 49.48.030] includes any judicial proceeding.” The WASC has found that “arbitration proceedings have often been held to be “judicial” in nature, “at least in part because arbitrators, when acting under the broad authority granted them by the parties and statutes, become the judges of law and fact” and arbitration “is often a substitute for judicial action in the courts.”
However, the court pointed out that in administrative proceedings under PERC such as ULP hearings, hearing examiners are “strictly limited to the issues, procedures, and remedies prescribed in its governing statutes and regulations [and therefore are not judicial proceedings].”
The court held that (1) the trial court erred in awarding attorney fees to the Union in that a ULP proceeding is not an “action” for a “judgment for wages” under RCW 49.48.030 and (2) likewise, even if RCW 49.48.030 applied, there were no extraordinary circumstances necessary for the trial court to award attorney fees under PERC’s governing statute, RCW 41.56.160.
Editor’s Note (Erica Shelley Nelson): While disappointing, the result here is not surprising. Previous case law has not supported the ability of unions to obtain attorney’s fees under the wage statute for enforcement of the different PERC statute. So, this ruling doesn’t really change the state of the existing law.
