State - Transportation, Decision 8317-B (PSRA, 2005)

Parr, Younglove, Lyman & Coker, by Edward E. Younglove III, Attorney at Law, for the union.

Jessica L. Todorovich, Labor and Employment Manager, for the employer.

This case comes before the Commission on a timely appeal filed by the Washington Federation of State Employees (union), seeking to overturn certain findings of fact, conclusions of law, and order issued by Executive Director Marvin L. Schurke.[1] Although our analysis of the law differs from the Executive Director’s, we reach the same findings of fact and conclusions of law and affirm the decision below.

BACKGROUND

On October 2, 2003, the union filed a petition concerning represen­tation seeking certification as the exclusive bargaining represen­tative of certain employees of the Washington State Department of Transportation (employer). The parties stipulated to the Commis­sion’s jurisdiction and certain other issues during an investiga­tion conference conducted on October 28, 2003, but disagreed as to the eligibility of certain employees for inclusion in the bargain­ing unit. A representation election conducted with the disputed employees voting by challenged ballot demonstrated that the union had majority support in the overall bargaining unit.

Unfair Labor Practice Manager Mark S. Downing issued an interim certification on December 16, 2003, naming the union as exclusive bargaining representative while keeping open the reserved eligibil­ity issues. Hearing Officer David I. Gedrose conducted a hearing on April 19, 2004, concerning the eligibility of the non-supervi­sory audit specialist position. The Executive Director’s September 20, 2004, decision excluded non-supervisory audit specialists who reviewed transactions within the agency while including audit specialists who review transactions outside the agency.

DISCUSSION

Issue Presented

Are non-supervisory audit specialists who review internal agency transactions “internal auditors” as defined within the Personnel System Reform Act of 2002?

Standard of Review

Statutory construction is a question of law and is reviewed de novo. City of Pasco v. Public Employment Relations Commission, 119 Wn.2d 504 (1992). Like the courts of appeal, we will determine questions of law independently of the staff member whose decision is on appeal, although the decision is entitled to substantial weight. See Renton Technical Association v. Public Employment Relations Commission, 101 Wn.2d 435 (1984). This Commission then applies that law to the findings of fact issued below unless those findings are not supported by substantial evidence. Substantial evidence exists if the record supports a finding of any competent, relevant, and substantive evidence which, if accepted as true, would, within the bounds of reason, directly or circumstantially support the challenged finding or findings. Gogerty v. Department of Institutions, 71 Wn.2d 1 (1967).

Undefined Statutes Are Given Their Ordinary Meaning

When interpreting the statutes this Commission administers, we must ascertain the meaning of the words within those statutes and give them the full effect the Legislature intended. See City of Yakima, Decision 3503-A (PECB, 1990). In ascertaining the meaning of a particular word or words within a statute, this Commission must consider both the statute’s subject matter and the context in which the word is used. Chamberlain v. Department of Transporta­tion, 79 Wn. App. 212, 217 (1995). Statutes must be interpreted and construed so that all language used is given effect, and no portion is rendered meaningless or superfluous. Whatcom County v. City of Bellingham, 127 Wn.2d 537 (1996).

Absent a specific definition, contrary legislative intent, or ambiguity, statutes are accorded their plain and ordinary meaning unless that statute is ambiguous. Dennis v. Department of Labor and Industries, 109 Wn.2d 476, 479 (1987); see also City of Yakima, Decision 3503-A. A statute is not ambiguous merely because different interpretations are conceivable. So the Commission interprets the plain and ordinary meaning of words in the context of the statutory subject matter and the grammatical placement of the words.

Internal Auditor as Used Within the PSRA is Not Ambiguous

The Personnel System Reform Act of 2002 (PSRA), Chapter 41.80 RCW, defines the state employees who are eligible for collective bargaining rights. RCW 41.80.005(6) states:

(6) "Employee" means any employee, including employees whose work has ceased in connection with the pursuit of lawful activities protected by this chapter, covered by chapter 41.06 RCW, except:

(a) Employees covered for collective bargaining by chapter 41.56 RCW;

(b) Confidential employees;

(c) Members of the Washington management service;

(d) Internal auditors in any agency; or

(e) Any employee of the commission, the office of financial management, or the department of personnel.

(emphasis added). “Internal auditor” is not defined in any part of Chapter 41.80 RCW. We therefore turn to the ordinary meaning of the words to ascertain the Legislature’s intentions in exempting internal auditors from the PSRA.

To “audit” something means to “conduct a formal or official examination and verification of books of account” or “a methodical examination and review of a situation or condition (as within a business or enterprise) concluding with a detailed report of findings.” Webster’s Third New International Dictionary, (Unabridged), 143 (1986). An auditor (the noun form of the verb audit) is literally “one who audits accounts” or is “authorized to examine and verify accounts.” Webster’s Third New International Dictionary, 143. The ordinary meaning of an “internal audit” is defined as a “continuous examination of verification of books of accounts conducted by employees of a business.” Webster’s Third New International Dictionary, 1180. An internal audit can also be defined as “a review of systems of internal check and internal control of a business.” Webster’s Third New International Dictionary, 1186.[2] Based upon these ordinary definitions, we conclude that the Legislature intended to specifically exclude from the PSRA employees who audit procedures, operations, and accounting practices within any agency.

The union argues that we should take a narrow view of what the Legislature intended and limit the exclusion to only the job class “internal auditor” as defined by the Department of Personnel. While it may be conceivable that the Legislature intended to exclude only those employees in that particular job classification from the provisions of the PSRA, such an interpretation would lead us to read more words into the statute than are already present.[3] This Commission will not insert words into a statute to achieve a party’s desired result. If the Legislature had intended to singularly exclude the Department of Personnel job class of internal auditor, and not those who perform the tasks associated with an internal auditor, it could have explicitly done so. Absent any specific direction from the Legislature to do otherwise, we examine the actual duties and authority of the employees, and not the titles of the disputed position or classification. See, e.g., City of Redmond, Decision 1367-A (PECB, 1982).

The union alternatively argues that Commission precedents requiring the excluded employees to be either confidential or supervisory in status should apply. See, e.g., Concrete School District, Decision 8313-A (PECB, 2004) (confidential employees); City of Tacoma, Decision 7967 (PECB, 2003) (supervisory employees). The Executive Director found that because the Legislature specifically exempted internal auditors from collective bargaining rights under the PSRA, those traditional analyses and Commission precedents do not apply to this case. We agree. The plain-meaning of RCW 41.80.005(6) indicates that the Legislature intended to exclude certain positions, titles and agencies from the provisions of the PSRA. Just as RCW 41.80.005(6)(d) exempts internal auditors in any agency from collective bargaining rights, members of the Washington management service in any agency are also exempted from the PSRA through RCW 41.80.005(6)(c). Excluding employees from the PSRA based upon any analysis other than the specifically used terms within RCW 41.80.005(6)(d) would lead to an absurd or unlikely result that the Legislature clearly did not intend. See Ski Acres, Inc. v. Kittitas County, 118 Wn.2d 852, 857 (1992)(holding that statutes should be construed to effect their purpose, and unlikely, absurd or strained consequences should be avoided).

Audit Specialists Exclusion Supported By Substantial Evidence

Substantial evidence exists on the record supporting the Executive Director’s decision. The duties of the internal audit specialists include performing “professional independent compliance, financial, and performance audits and management review of the department.” The internal audit specialist also deals with management on operational functions, compliance, and operational audit and investigation activities. These job functions are similar to the ordinary meaning of “auditor” as used within the PSRA. The evidence demonstrates that the audit specialist in the internal branch are generally limited to auditing the employer’s records, and little, if any, of their work encompasses auditing outside organizations or entities.

NOW, THEREFORE, it is

ORDERED

The Findings of Fact, Conclusions of Law, and Order issued by Executive Director Marvin L. Schurke are AFFIRMED and adopted as the Findings of Fact, Conclusions of Law, and Order of the Commission.

Issued at Olympia, Washington, the 15^th day of June, 2005.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

PAMELA G. BRADBURN, Commissioner

[SIGNED]

DOUGLAS G. MOONEY, Commissioner