IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE FISH AND WILDLIFE OFFICERS' GUILD, Respondent,

v. WASHINGTON DEPARTMENT OF FISH AND WILDLIFE, Appellant. No. 72104-6-

PUBLISHED OPINION

FILED: December 7, 2015 

### Schindler, J. —The right ofstate employees to collective bargaining is governed by statute. The Personnel System Reform Act of2002 (PSRA), chapter41.80 

### RCW, requires exclusive bargaining representatives ofbargaining units withfewerthan 500 employees to negotiate a mastercollective bargaining agreement (CBA) as a coalition. The PSRA requires the representatives for all bargaining units to bargain as a coalition for health care benefits. The PSRA sets forth the rules for certification of an employee organization as the exclusive bargaining representative for the employees of

a bargaining unit. Ifa master CBA is in effectwhen an employee organization offewer than 500 employees is certified, that agreement shall apply and "[n]othing inthis section 

### requires the parties to engage in new negotiations during the term ofthat agreement."1

1RCW41.80.080(2)(a)No. 72104-6-1/2 The Fish and Wildlife Officers' Guild (FWOG) filed an unfair laborpractice complaint asserting the state ofWashington (State) refused to bargain wages and health care 

### benefits. The Public Employment Relations Commission (PERC) concluded thatwhen itcertified FWOG as the exclusive bargaining representative ofapproximately 94 employees, the coalition master CBA for the 2011-2013 biennium was in effect and applied. PERC ruled the State did not alterthe status quo orcommit an unfair labor 

### practice by refusing to engage incollective bargaining with FWOG and negotiate a new 

### agreement on wages and health care benefits. The superiorcourt reversed the PERC decision. TheWashington Department of Fish and Wildlifeappeals the superiorcourt order. FWOG contends PERC erroneously interpreted and applied the PSRA. We

reverse the superiorcourt and affirm the PERC decision.
FACTS The facts are undisputed. The Washington Federation of State Employees, 

### AFSCME,2 Council 28, AFL-CIO3 (WFSE), represented a number ofbargaining units including the Washington Department of Fish and Wildlifeenforcement officers, 

### bargaining unit RU-538. The mastercollective bargaining agreement (CBA)between WFSE and the state ofWashington (State) forthe 2009-2011 biennium expired on June 30,2011. 

### During 2010 and early 2011, WFSE and the State negotiated a successor master CBA for the next biennium, July 1, 2011 through June 30, 2013. On December 14, 

### 2010, WFSE and the State tentatively agreed to a three percent salary reduction for all bargaining unit employees effective July 1, 2011.

2American Federation ofState, County, and Municipal Employees. 3American Federation of Labor-Congress of Industrial Organizations.No. 72104-6-1/3 

### OnJanuary 5, 2011, the State and the coalition of bargaining unitswith fewer than 500 employees agreed to a masterCBA that included a three percent salary reduction for the 2011-2013 biennium effective July 2, 2011. 

### The State also negotiated an agreementwith a coalition of allexclusive bargaining representatives (Health Care Coalition) to reduce the health care contributions paid by the State. On December2, 2010, the State and the Health Care Coalition agreed to a reduction inthe amountthe State contributed for health care premiums from 88 percentto 85 percenteffective January 1, 2012. 

### WFSE scheduled meetings withbargaining unitemployees on the tentative master CBA. WFSE posted the tentative master CBA on its website with a description 

### ofthe three percentwage reduction and the change in health care contributions agreed to by the Health Care Coalition. On January 24, 2011, WFSE mailed ballots to members. On February 17, 2011, WFSE announced the bargaining unitmembers 

### voted to ratify the 2011-2013 master CBAthat included a three percent reduction in 

### wages and a reduction in health care benefits.4 On March 4, 2011, the Fish and Wildlife Officers' Guild (FWOG) filed a petition 

### with the Public Employment Relations Commission (PERC) to represent approximately 94 "full time and regular part time employees in the Enforcement Program" of the 

### Washington Departmentof Fish and Wildlife. PERC scheduled a unitdetermination hearing for June 7, 2011. 

### On May 25, the legislature approved the 2011-2013 WFSE masterCBA and the 2011-2013 coalition master CBA reducing the wages paid by three percent. 

### Engrossed Second Substitute H.B. 1087, 62nd Leg., 1st Spec. Sess. (Wash. 2011).

4 The master coalition also ratified the 2011-2013 CBA.No. 72104-6-1/4 

### The legislature also approved the Health Care Coalition agreement reducing the amountthe State contributed to employee health care premiums from 88 percentto 85 percenteffective January 1, 2012. Engrossed SecondSubstitute H.B. 1087, 62nd Leg., 1st Spec. Sess. (Wash. 2011). 

### That same day, on May 25, the legislature adopted Engrossed Substitute Senate Bill (ESSB) 5860 declaring an emergency and reducing the base salaries forthe 2011- 2013 biennium for allexecutive, legislative, andjudicial branch State employees by three percent. ESSB 5860, 62nd Leg., 1stSpec. Sess. (Wash. 2011). On June 24, PERC issued an "Interim Certification" of FWOG as the exclusive 

### bargaining representative for a bargaining unit ofapproximately 94 Fish and Wildlife
officers. On June 28, FWOG sent a letterto the director ofthe Financial Management 

### Labor Relations Office (LRO Director) "to verifythatthe employer understands the need to maintain the status quo throughoutthis period and up until the State reaches a 

### Collective Bargaining Agreementwiththe Guild." FWOG asserts the WFSE master CBAthatthe Fish and Wildlifeofficers previously agreed to and ratified did not apply afterWFSE disclaimed representation on June 6, 2011. FWOG demanded collective bargaining on "a new labor agreement" on wages and benefits. 

### In response, the LRO Director states that because the coalition master CBAwas ineffectforthe 2011-2013 biennium when the bargaining unitwas certified, that agreement applied to bargaining unit employees. There is a current collective bargaining agreement inplace for the Coalition of Unions, which I've attached for your reference. Article 1.2 of that master agreement provides:No. 72104-6-1/5 Ifthe Public Employment Relations Commission certifies a new bargaining unit in general governmentduring the term ofthis Agreement and the exclusive bargaining representative represents fewer than a total of five hundred (500) employees, the terms ofthis Agreement will apply. The Employer agrees to enter into negotiations regarding mandatory subjects with the newly added group to discuss any bargaining unit specific concerns which are not addressed inthis Agreement. You raise the issue ofthe 3% compensation reduction. The master collective bargaining agreement inplace for the 2011-2013 Coalition of Unions agreement provides for a 3% reduction inpay and offsetting temporary salary reduction leave. The compensation reduction contained inthe master agreement has been approved and funded by the legislature. The same is true for the 2011-2013 Washington Federation of State Employees (WFSE) master agreement. The LRO Director states that underthe PSRA, the employer did not have "the ability to bargain over legislatively imposed pay reductions, nordoes ithave the ability to bargain a new agreement between the State and the Guild" for the 2011-2013 

### biennium. However, the LRO Directoragreed that underthe PSRA, the State would negotiate "subjects that are unique to [Fish and Wildlife officers] that are not addressed 

### inthe Coalition agreement."5 RCW 41.80.020(2)(a) establishes that unions with fewer than 500 employees shall negotiate with the State for one master collective bargaining agreement, which covers all such unions. The statute further 

### provides thatthe Governor's designee and the exclusive representative or representatives are authorized to enterinto supplemental bargaining of agency-specific issues for inclusion in, or as an addendum to, the master collective bargaining agreement, subjectto the parties' agreement regarding the issues and procedures for supplemental bargaining.

5The LRO Director also noted the legislature adopted ESSB 5860 declaring an emergency and directing a "3% cut" inwages. The letter states, in pertinent part: RCW 41.80.040 prohibits bargaining over actions deemed "necessaryto carry outthe mission ofthe state and its agencies during [an] emergency]." And, ofcourse, pursuant to RCW 41.80.020 (6), the terms of a collective bargaining agreement may not conflict with a statute. (Alterations inoriginal.)No. 72104-6-1/6 

### On July 1, 2011, the State implemented the three percentwage reduction according to the terms ofthe master CBAs, the coalition master CBA, and ESSB 5860 for all State employees. The reduction inthe amountthe State contributed to health

care premiums was scheduled to take effect on January 1, 2012. 

### On November 9, 2011, FWOG filed an unfair laborpractice complaintwith 

### PERC. The complaint alleged the State interfered withemployee rights by refusing to engage incollective bargaining with FWOG and unilaterally reducing wages and health

care benefits.6 

### FWOG and the State entered into a joint stipulation offacts. FWOG and the Statefiled cross-motions for summaryjudgmenton whetherthe State committed an 

### unfair labor practice by refusing to engage incollective bargaining with FWOG on wages and health care benefits. The PERC hearing examinergranted the State's motion for summaryjudgment. The decision states that "under RCW 41.80.010(2)(a), upon certification, the union became a party to the coalition collective bargaining agreement and was not entitled to bargain a separate agreementon wages and health benefits." The hearing examiner ruled as a matter of law, the State "did not unilaterally change wages or health benefits or breach its good faith bargaining obligations over wages and health benefits." FWOG appealed the hearing examinerdecision. PERC affirmed the decision ofthe hearing examiner. Decision 11394-B

- PSRA, No. 24387-U-11-6249 (Wash. Pub. Emp't Relations Comm'n Sept. 5, 2013). PERC rejected the argumentthatthe hearing examinerdecision violated the status quo principles underthe Public Employees' Collective Bargaining Act (PECBA), chapter
6FWOG also alleged the State changed paid release time and insisted to impasse on ground rules. The superior court affirmed the PERC decision to dismiss these allegations. Neitherthe State nor FWOG appeal dismissal ofthese allegations.No. 72104-6-1/7 

### 41.56 RCW. PERC concluded "the unique features ofChapter41.80 RCW" dictate "a
different result." 

### Inessence, the union requests thatthe status quo principles applicable under Chapter41.56 RCW apply to Chapter41.80 RCW. The status quo under Chapter41.56 RCW would have been the collective bargaining 

### agreement negotiated between the employer and theWFSE and that status quo would have continued untilthe employer and the union 

### negotiated a new agreement. However, the unique features ofChapter 41.80 RCW require a different result. 

### PERC decided that aftercertifying FWOG as the exclusive bargaining representative ofapproximately 94 Fish and Wildlife officers, the coalition master CBA 

### established the status quo, and FWOG was not entitled to negotiate a new master CBA

on wages or health care benefits. The PERC decision states, inpertinent part: 

### The bargaining unitemployees were covered bytheWFSE master 

### agreement at the time the union filed its petition. Duringthe pendency of the representation petition, the status quo wages, hours, and otherterms 

### and conditions ofemploymentwere setby the WFSE master agreement. 

### The employerwas obligated to maintain the status quo untilthe union was certified as the exclusive bargaining representative. Once the union was certified as the exclusive bargaining representative, the WFSE master 

### agreement no longer applied because the union represented fewerthan 500 employees. 

### The union was not entitled to negotiate a separate mastercollective 

### bargaining agreement. Ifthe employees had chosen to join a union that represented more than 500 employees, upon ratification, the employees would have been covered bythat mastercollective bargaining agreement. RCW41.80.010(2)(a) and 41.80.080(2)(a). In this case, the employees chose to be represented by a union thatrepresented fewerthan 500 employees. When the union was certified, the coalition collective 

### bargaining agreementwas ineffect and became the status quo. Thus, the employees were covered bythe coalition agreement and will be required to bargain successor agreements as partofthe coalition. 

### PERC affirmed the dismissal ofthe allegation thatthe State violated RCW 

### 41.80.110 by refusing to bargain with FWOG on wages and health care benefits. TheNo. 72104-6-1/8 PERC decision states, in pertinent part: 

### The union did not represent more than 500 employees and was required to bargain as part ofthe coalition. The union was not entitled to negotiate a separate master collective bargaining agreement or agreement on health benefits. Upon certification, the status quo for employee wages, 

### hours, and terms and conditions ofemploymentbecame the coalition collective bargaining agreement. The employerdid not unilaterally change 

### the status quo on wages, health benefits, or paid release time. The employerdid not insistto impasse upon ground rules. FWOG filed an appeal ofthe PERC decision in superiorcourt. The court reversed the PERC decision that the State did not commit an unfair labor practice. The 

### court concluded PERC erred inconcluding the coalition master CBAapplied. The court ruled that under general contract principles, the State had a duty to engage in collective bargaining with FWOG on wages and health care benefits. The State appeals. ANALYSIS 

### The State argues the superior court erred inreversing the PERC decision. 

### FWOG contends PERC erroneously interpreted the PSRA inconcluding the State did not commit an unfair labor practice. 

### In reviewing an agency decision, we sit inthe same position as the superiorcourt 

### and apply the standards of the AdministrativeProcedure Act, chapter 34.05 RCW. Pasco Police Officers' Ass'n v. City ofPasco, 132 Wn.2d 450, 458, 938 P.2d 827 

### (1997). Accordingly, our review is limited to the record ofthe administrative tribunal and the PERC decision, not the decision ofthe hearing examiner. City ofVancouverv. Pub. Emp't Relations Comm'n, 107 Wn. App. 694, 703, 33 P.3d 74 (2001). 

### A reviewing court may grant relief only ifthe party challenging the agency decision shows that the order is invalid for one ofthe reasons set forth at RCW 

### 34.05.570(3). Yakima Police Patrolmen's Ass'n v. Cityof Yakima, 153 Wn. App. 541,

8No. 72104-6-1/9 

### 553, 222 P.3d 1217 (2009). RCW 34.05.570(3)(d) requires relief from the agency order when the decision is based on an erroneous interpretation or application ofthe law. 

### We review an agency ordergranting summaryjudgmentde novo. Quadrant Corp. v. Am. States Ins. Co., 154Wn.2d 165, 171, 110 P.3d 733 (2005). Unchallenged and stipulated facts are verities on appeal. Fullerv. Dep't ofEmp't Sec, 52 Wn. App. 603, 605, 762 P.2d 367 (1988). 

### The State argues the right ofState employees to engage incollective bargaining is governed by statute, and the specific and unique provisions ofthe PSRA control. The State asserts that underthe statutory provision for negotiation and ratification of a master CBA, RCW 41.80.010(2)(a); and the statute that sets forth the rules following certification ofan employee organization as a new bargaining representative, RCW 41.80.080(2)(a); the State did not commit an unfair labor practice by refusing to engage incollective bargaining with FWOG on wages and health care benefits forthe 2011- 2013 biennium. FWOG contends that underthe plain language ofthe PSRA, the State committed an unfair labor practice by refusing to bargain and by interfering with the employees' right to negotiate a new CBA. 

### Interpretation or application ofthe law by an agency is reviewed de novo. Pasco 

### Police, 132 Wn.2d at 458. Our objective is to ascertain and give effectto legislative intent. Dep't of Ecology v. Campbell &Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). 

### Statutory interpretation begins with the plainmeaning ofthe statute. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). The 

### "plain meaning" of a statute is discerned from the ordinary meaning ofthe language at issue as well as the context ofthe statute inwhich that provision is found, relatedNo. 72104-6-1/10 

### provisions, and the statutory scheme as a whole. Lake, 169 Wn.2d at 526. " 'Statutes

are to be read together, whenever possible, to achieve a harmonious total statutory 

### scheme.'" In re Bankr. Petition ofWieber. 182 Wn.2d 919, 926, 347 P.3d 41 (2015)7 (quoting State ex rel. Peninsula Neighborhood Ass'n v. Dep'tofTransp., 142 Wn.2d 328, 342, 12 P.3d 134 (2000)). "While we look to the broader statutory contextfor guidance, we 'must not add words where the legislature has chosen not to include them,' and we must 'construe statutes such that all ofthe language is given effect.'" Lake. 169 Wn.2d at 526 (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150Wn.2d 674, 682, 80 P.3d 598 (2003)). "Where the language of a statute is clear, legislative intent is derived from the language ofthe statute alone." City of Spokane v. Rothwell, 166 Wn.2d 872, 876, 215 P.3d 162 (2009). Ifthe statute is unambiguous, the inquiry ends. State v. Armendariz, 160Wn.2d106, 110, 156P.3d201 (2007). 

### When construing a collective bargaining statute, we give "substantial weight and greatdeference" to PERC's interpretation in view of its expertise inthe area ofcollective bargaining. City of Bellevue v. Int'lAss'n of Fire Fighters, Local 1604, 119Wn.2d 373, 381-82, 831 P.2d 738 (1992). However, we may substitute our interpretation for that of 

### the agency. Chi. Title Ins. Co. v. Office ofthe Ins. Comm'r, 178Wn.2d 120, 133, 309 P.3d 372 (2013). The national Labor Relations Act specifically exempts state and local government 

### employers from coverage. 29 U.S.C. § 152(2) ("The term 'employer'.

. . shall not include

. . . any State or political subdivision thereof"). Congress leftthe decision 

### concerning collective bargaining rights for public employees to the states. See also City

7Internal quotation marks omitted.

10No. 72104-6-1/11
ofYakima v. Int'l Ass'n of Fire Fighters, AFL-CIO, Local 469, Yakima Fire Fighters Ass'n, 117Wn.2d655, 666-67, 818 P.2d 1076(1991). 

### In 1967, the legislature adopted the Public Employees' Collective Bargaining Act (PECBA), chapter41.56 RCW. Laws of 1967, Ex. Sess., ch. 108, § 1. The PECBA gives cities, counties, and political subdivisions ofthe State the right to engage in collective bargaining with employees on wages, hours, and working conditions. However, the PECBA gives the right to engage in collective bargaining to only certain limited categories of State employees. See, e.g., RCW41.56.473 (Washington State Patrol officers); RCW 41.56.027 and RCW47.64.120 (Washington State Department of Transportation Ferries Division employees). 

### In2002, the legislature adopted the PSRA, chapter41.80 RCW. Laws of2002, ch. 354, § 301. The legislature substantively restructured the administration and collective bargaining rights for State employees. 

### The PSRA of2002 gives all State employees the right to engage incollective bargaining with "the governoror governor's designee." RCW 41.80.010(1), .020(1). "Except as may be specifically limited by this chapter," the PRSA gives State employees the right to organize and "bargain collectively through representatives oftheir own choosing." RCW41.80.050. 

### The PSRA adopts a unique structure that mandates the negotiation of a master CBA. RCW 41.80.010(2)(a). Exclusive bargaining representatives for bargaining units with fewer than 500 members must bargain as a coalition for wages, hours, and other terms and conditions ofemployment. RCW 41.80.010(2)(a). RCW41.80.010(2)(a)

11No. 72104-6-1/12

states:

### If an exclusive bargaining representative represents more than one bargaining unit, the exclusive bargaining representative shall negotiate with each employer representative as designated in subsection (1) ofthis 

### section one mastercollective bargaining agreement on behalfof all the employees inbargaining units thatthe exclusive bargaining representative represents. Forthose exclusive bargaining representatives who represent fewer than a total offive hundred employees each, negotiation shall be by a coalition of all those exclusive bargaining representatives. The coalition shall bargain for a master collective bargaining agreement covering all of the employees represented by the coalition. The governor's designee and the exclusive bargaining representative or representatives are authorized to enter into supplemental bargaining ofagency-specific issues for inclusion in or as an addendum to the master collective bargaining agreement, subject to the parties' agreement regarding the issues and procedures for supplemental bargaining. This section does not prohibit cooperation and coordination ofbargaining between two or more exclusive 

### bargaining representatives.181 RCW41.80.020 defines the scope ofbargaining. RCW41.80.020(1) states: Except as otherwise provided inthis chapter, the matters subjectto bargaining include wages, hours, and otherterms and conditions of employment, and the negotiation ofany question arising under a collective bargaining agreement. The PSRA mandates coalition collective bargaining for health care benefits with the bargaining representative ofaN bargaining units for "the dollar amount expended on 

### behalfofeach employee for health care benefits shall be conducted between the employer and one coalition for allthe exclusive bargaining representatives subjectto this chapter." RCW 41.80.020(3). The amount agreed to withthe coalition "shall be included in allmastercollective bargaining agreements negotiated by the parties." RCW 41.80.020(3). RCW41.80.020(3) provides, in pertinent part: 

### Matters subjectto bargaining include the numberofnames to be certified for vacancies, promotional preferences, and the dollar amount expended on behalfofeach employee for health care benefits. However, except as provided otherwise in this subsection for institutions of higher education, 8Emphasis added.

12No. 72104-6-1/13 negotiations regarding the number ofnames to be certified for vacancies, 

### promotional preferences, and the dollar amount expended on behalfof each employee for health care benefits shall be conducted between the employer and one coalition ofall the exclusive bargaining representatives 

### subjectto this chapter.

. . .Any such provision agreed to by the employer and the coalition shall be included in all master collective bargaining agreements negotiated by the parties.[9] 

### Under RCW41.80.010(3)(a), the master CBAmustbe submitted to the Office of Financial Management by October 1 prior to the legislative session before the beginning ofthe biennium. The Office ofFinancial Management must certify thatthe masterCBA 

### is "feasible financially forthe State." RCW41.80.010(3)(b). "The legislature shall approve or rejectthe submission ofthe requestforfunds as a whole." RCW 41.80.010(3)(b). RCW41.80.010(3) provides: 

### The governor shall submit a requestforfunds necessary to implementthe compensation and fringe benefitprovisions inthe mastercollective 

### bargaining agreementor for legislation necessaryto implementthe 

### agreement. Requests forfunds necessary to implementthe provisions of bargaining agreements shall not be submitted to the legislature bythe governor unless such requests: 

### (a) Have been submitted to the director ofthe office of financial management by October 1 prior to the legislative session at which the requests are to be considered; and 

### (b) Have been certified bythe directorofthe office of financial management as being feasible financially forthe State. 

### The legislature shall approve or reject the submission ofthe requestforfunds as a whole. The legislature shall not considera request forfunds to implement a collective bargaining agreement unless the request istransmitted to the legislature as part ofthe governor's budget document submitted under RCW 43.88.030 and 43.88.060. Ifthe 

### legislature rejects or fails to act on the submission, eitherparty may reopen all or part ofthe agreement orthe exclusive bargaining representative may seekto implementthe procedures provided for in RCW 41.80.090. 

### Consistentwiththe requirement under RCW 41.80.010(2)(a) to negotiate a 

### master CBA,the legislature adopted rules governing certification of an employee

9Emphasis added.

13No. 72104-6-1/14 

### organization as the new exclusive bargaining representative of a bargaining unit. Under RCW41.80.080(4)(b), a bargaining unit may petition to change bargaining representatives during a 30-daywindow that is "no more than one hundred twenty calendardays nor less than ninety days" before the expiration ofthe CBA. RCW 41.80.080(4)(b) states: No question concerning representation may be raised if:... [a] valid 

### collective bargaining agreementexists covering the unit, exceptforthat period of no more than one hundred twenty calendardays nor less than ninety calendardays before the expiration ofthe contract. 

### RCW 41.80.080(2)(a) states that when a new employee organization is certified

as the exclusive bargaining representative offewer than 500 employees and a master CBA is "ineffectfor the exclusive bargaining representative, itshall apply to the bargaining unit for which the certification has been issued." RCW 41.80.080(2)(a) states, in pertinent part: 

### Ifan employee organization has been certified as the exclusive bargaining representative ofthe employees of a bargaining unit, the employee organization may actfor and negotiate mastercollective bargaining agreements thatwill include within the coverage ofthe agreement all 

### employees inthe bargaining unit as provided in RCW41.80.010(2)(a). However, if a master collective bargaining agreement is in effect for the 

### exclusive bargaining representative, itshall apply to the bargaining unit for which the certification has been issued. Nothing in this section reguires the parties to engage in new negotiations during the term ofthat agreement.[10] 

### The parties dispute whether underthe plain language ofthe PSRA, the coalition master CBA was ineffect and applied to FWOG. The State asserts PERC correctly decided that because the coalition master CBA was in effect when PERC certified FWOG, itapplies, and the State did not have the authority to negotiate a new 

### agreementwith FWOG on wages and health care benefits. The State asserts RCW 10 Emphasis added.

14No. 72104-6-1/15 

### 41.80.010(2)(a) authorizes supplemental collective bargaining only for agency-specific issues, not wages or health care benefits. First, FWOG asserts the PSRA gives the State the authority to engage in supplemental collective bargaining for wages and health care benefits. We disagree. RCW41.80.020 establishes the scope ofbargaining. RCW41.80.020(1) specifically states that "felxceptas otherwise provided inthis chapter," wages and conditions of 

### employment are subjectto collective bargaining.11 RCW41.80.010(2)(a) requires bargaining units with fewer than 500 members engage in collective bargaining as a coalition and authorizes the State to enter into supplemental bargaining only for agencyspecific issues as an addendum to the master CBA. Wages and health care benefits

are not "agency-specific" issues. Next, FWOG contends the PERC decision that the coalition master CBA applied ignores the right ofemployees to choose an exclusive bargaining representative and the right ofan exclusive bargaining representative to negotiate a CBA. FWOG argues the definition ofexclusive bargaining representative, RCW41.80.005(9); the rights of employees, RCW41.80.050; and the rights ofthe certified exclusive bargaining representative, RCW 41.80.080(3); require the State to engage in bargaining with FWOG for a new CBA on wages and health care benefits. We disagree. RCW41.80.005(9) defines an "exclusive bargaining representative" as "any employee organization that has been certified underthis chapter as the representative ofthe employees in an appropriate bargaining unit." The PSRA grants employees the 

### right to "bargain collectively through representatives oftheir own choosing

. . . [e]xcept

11 Emphasis added.

15No. 72104-6-1/16



### as may be specificallylimited by this chapter." RCW41.80.050.12 The statute addressing the responsibilities of a newly certified exclusive bargaining representative of an employee organization offewer than 500 members under RCW41.80.080(3) also does not require the State to negotiate a new CBA. RCW 41.80.080(3) states: The certified exclusive bargaining representative shall be responsible for representing the interests of all the employees inthe bargaining unit. This section shall not be construed to limitan exclusive representative's right to exercise its discretion to refuse to process grievances ofemployees that are unmeritorious. If a master CBA is ineffectfor a newly certified exclusive bargaining representative representing fewer than 500 employees, the PSRA does not permitthe 

### Stateto negotiate a separate CBA. RCW 41,80.080(2)(a) specifically states, "Nothing in this section requires the parties to engage in new negotiations during the term ofthat agreement." 

### The statutory scheme and plain language ofthe PSRA make clearthe legislative 

### intent to require negotiating a master CBA by a coalition for bargaining units of fewer than 500 members, and ifthat agreement is ineffectwhen a new exclusive bargaining representative is certified, itshall apply and the State may not negotiate a new agreement. 

### FWOG concedes it did not filethe petition for certification untilafterthe WFSE

master CBA and the coalition master CBA were entered into for the 2011-2013 biennium. There is no dispute FWOG represents fewerthan 500 employees and a coalition master CBA for all bargaining units with fewer than 500 employees was "in

12 RCW 41.80.050 states, in pertinent part: Except as may be specifically limited by this chapter, employees shall have the right to self-organization, to form, join, or assist employee organizations, and to bargain collectively through representatives of their own choosing for the purpose of collective bargaining free from interference, restraint, or coercion.

16No. 72104-6-1/17 effect" on June 24, 2011 when PERC certified FWOG as the exclusive bargaining 

### representative. The statute anticipates certification will occurafter a successorcoalition master CBAhas been negotiated and funded. RCW41.80.080(4) allows questions concerning representation only during a "window" period of no more than 120 days nor less than 90 days before the expiration of a CBA. Butthe PSRA does not allow the State and the newly certified exclusive bargaining representative to negotiate subjects 

### already covered inthe master agreement. Instead, if a master CBA is "in effect," itwill apply to the bargaining unit for which certification was issued and "[n]othing in this section requires the parties to engage in new negotiations during the term ofthat agreement." RCW41.80.080(2)(a). We conclude the State did not commit an unfair labor practice by refusing to 

### negotiate a new CBA with FWOG on wages and health care benefits forthe 2011-2013
biennium. FWOG also asserts the PERC decision violates common law contract principles and the constitutional First Amendment right ofassociation. We disagree. The 

### Washington State Supreme Court has consistently held that the terms and conditions of public employment are controlled by statute. Wash. Fed'n ofState Emps.. AFL-CIO. Council 28, AFSCME v. State, 101 Wn.2d 536, 539-42, 682 P.2d 869 (1984). FWOG concedes the First Amendment does not create a right to bargain but 

### argues that "once a state creates a collective bargaining system itcannotinfringe or retaliate againstthe exercise of rights under such statutes." FWOGdoes not meet its heavy burden to establish the PSRA is unconstitutional. Eugsterv. State, 171 Wn.2d 839, 843, 259 P.3d 146 (2011) (We presume a statute is constitutional, and the

17No. 72104-6-1/18 

### challenging party "bears the burden ofestablishing a statute's unconstitutionality beyond a reasonable doubt."). Nonetheless, we conclude the PSRA does not 

### unconstitutionally infringe on the rightto collectivebargaining.13 We hold that underthe plain language ofthe PSRA, PERC correctly concluded thatthe State did not commit an unfair labor practice by refusing to separately bargain 

### with FWOG on wages and health care benefits. We reverse the superiorcourt and
affirm the PERC decision. 

# \\XaAa^

WE CONCUR: 

# l/^kfey, J \>^e^

13We also note the legislature declared an emergency and mandated the three percent salary reductions under ESSB 5860. RCW 41.80.020(5) provides that "[t]heemployer and the exclusive bargainingrepresentative shall not bargain over matters pertaining to managementrightsestablished in RCW 41.80.040." RCW 41.80.040 provides, in pertinent part: The employer shall not bargain over rights ofmanagementwhich, in addition to all powers, duties, and rights established by constitutional provision or statute, shall include but not be limited to the following: (4) The right to take whateveractions are deemed necessary to carry out the mission ofthe state and its agencies during emergencies.

18