City of Liberty Lake, Decision 13177 (PECB, 2020)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Sydney Phillips, Attorney at Law, Freedom Foundation, for Mark Holthaus.

Shane Brickner, Mayor, for the City of Liberty Lake.

On January 7, 2020, Mark Holthaus filed a representation petition seeking to decertify Teamsters Local 760 (union) as exclusive bargaining representative of the bargaining unit of commissioned police officers at the City of Liberty Lake (employer). The union and employer are parties to a collective bargaining agreement that expires on December 31, 2022. On January 29, 2020, Representation Case Administrator Dario de la Rosa issued a deficiency notice finding that Holthaus’s petition was not timely because the petition was not filed during the “window” period not more than 90 nor less than 60 days prior to the expiration date of the agreement.[1] The deficiency notice also pointed out other defects with the petition, such as a lack of showing of interest and a lack of clear purpose for the petition. Holthaus was given a period of 14 days to show cause as to why this agency should accept his untimely petition as well as to cure the other defects in the petition.

On February 11, 2020, Holthaus filed an amended petition asserting that his petition is timely because WAC 391-25-030(1)(a)(iv) only allows a collective bargaining agreement to operate as a contract bar for the first three years of its existence. Holthaus’s amended petition also cured the other defects found within the petition.

Halthaus’s petition must be dismissed because the employer and union negotiated a valid collective bargaining agreement with an expiration date of December 31, 2022, and the petition was filed while a valid contract bar was in effect. A contract bar precludes any representation petition from being filed during the life of a valid collective bargaining agreement except during a certain statutory window period. Chimacum School District, Decision 12623 (PECB, 2016), aff’d, Decision 12623–A (PECB, 2017). The contract bar doctrine does not exist to frustrate attempts to raise questions concerning representation. Chimacum School District, Decision 12623-A. Rather, the principle stabilizes collective bargaining relationships by providing an orderly procedure for raising questions concerning representation. Id., (citing Yakima Valley College, Decision 280 (CCOL, 1977)).

In 2007, the legislature amended RCW 41.56.060 to provide that any agreement entered into between school districts, cities, counties, or municipal corporations, and their respective employees, may provide for a term of existence of up to six years. Previously, RCW 41.56.070 only allowed collective bargaining agreements to have a term of up to three years. The 2007 changes to RCW 41.56.070 did not amend the provisions relating to the window period nor did it make any other substantive changes to the statute.

The 2007 amendments to RCW 41.56.070 made that statute unique among the collective bargaining statutes administered by this agency. Prior to 2007, the longest term a collective bargaining agreement could act as a contract bar under any statue administered by this Commission was three years. RCW 41.56.070 limited collective bargaining agreement to three years and any agreement that exceeded that length was invalid. Two statues, RCW 41.59.070 (certificated teachers) and 41.76.020 (four year university faculty) allowed collective bargaining agreements to be of any length but also provide that a collective bargaining agreement can serve as a contract bar only for three years.[2] Neither chapter 41.80 RCW (state civil service employees) nor chapter 47.64 RCW (ferry employees) contain a provision governing the length of collective bargaining agreements but it is generally accepted that agreements for these employees are limited to two years because the legislature must approve funding for the agreements as part of the biennial budget. See WAC 391-25-034 and WAC 391-25-036.

In 1980, this agency adopted WAC 391-25-030 to govern the time for filing representation petitions. The pertinent portion of the rules, WAC 391-25-030(1)(a)(iv), currently states that a collective bargaining agreement “will only operate as a bar for the first three years after its effective date.” The existing standard is consistent with RCW 41.56.070 as it existed prior to 2007 and also captured the standards found in RCW 41.59.070, and RCW 41.76.020. However, when the legislature amended RCW 41.56.070, the rule was not amended to reflect the new standard for employees who collectively bargain under chapter 41.56 RCW. This case presents the first instance where this agency has been asked to address the conflict between the statute and the rule.

An administrative agency cannot modify or amend a statute through administrative rulemaking. State v. Thompson, 95 Wn.2d 753, 759, 630 P.2d 925 (1981). Additionally, an administrative agency cannot modify or amend a statute through interpretation. METRO v. Public Employment Relations Commission, 60 Wn. App. 232 (1991). A rule that conflicts with a statute is beyond an agencies authority. See Washington Federation of State Employees v. Department of General Administration, 152 Wn. App. 368 (2009).

A plain reading of RCW 41.56.070 demonstrates that when the legislature amended the statute in 2007, it intended to allow this employer and union the opportunity to negotiate collective bargaining agreements with a term of up to six years. The legislature also chose not to adopt language similar to RCW 41.59.070 and RCW 41.76.020 allowing collective bargaining agreements to be of any length but only serve as a contract bar for three years. Absent such a provision, the 2007 amendments to RCW 41.56.070 clearly contemplate allowing collective bargaining agreements to serve as a contract bar for up to six years.[3]

If WAC 391-25-030(1)(a)(iv), as written, was applied to RCW 41.56.070, it would effectively rewrite the statute by engrafting a three-year contract bar to the statute where one does not exist. Such an outcome is beyond this agency rulemaking or interpretive authority. Accordingly, the rule cannot be applied to collective bargaining agreements negotiated under RCW 41.56.070 the contract bar period for agreements negotiated under the statute shall be the governed by the term of the agreement, up to six years.

Order

The representation petition filed by Mark Holthaus in the above-captioned matter is DISMISSED.

ISSUED at Olympia, Washington, this  31st  day of March, 2020.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Michael P. Sellars, Executive Director

This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-25-660