IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

INTERNATIONAL UNION OF POLICE ASSOCIATION, LOCAL 748, a/k/a KITSAP COUNTY SHERIFF'S OFFICE LIEUTENANT'S ASSOCIATION, Appellant,

KITSAP COUNTY, a Washington Municipality, Respondent. No. 71731-6-1

DIVISION ONE

PUBLISHED OPINION

FILED: September 2. 2014 

### Spearman, C.J. — This appeal arises from the Kitsap County Superior 

### Court's ordergranting attorneyfees and costs to Kitsap County Sheriff's Office Lieutenant's Association (the Union). Kitsap County (the County) contends that 

### the award was improperbecause: (1) the statutory provision relied upon, RCW 49.48.030, does not apply to attorney fees and costs incurred during unfair labor 

### practice proceedings instituted pursuant to chapter41.56RCW; (2) the priority of action doctrine bars the claim for reliefsought bythe Union; and (3)the County 

### and Union'scollective bargaining agreement contained an express waiver of 

### recovering attorney fees and costs. We agree with the first contention and

reverse. S wo

GO

I

<-.o

no --j './i nNo. 71731-6-1/2

FACTS The County and the Union were parties to a collective bargaining agreement (CBA) governed by the Public Employees' Collective Bargaining Act, chapter41.56 RCW (PECBA). The CBA covered a period from January 1, 2007 through December 31, 2009 and setforth the specific amount that each party
was to contribute to employee health insurance premiums. The PECBA requires that the status quo be maintained for one year after the lapse of a CBA. Specifically, itprovides: After the termination date of a collective bargaining agreement, all ofthe terms and conditions specified inthe collective bargaining 

### agreement shall remain in effect until the effective date of a subsequent agreement, not to exceed one yearfrom the termination date stated inthe agreement. Thereafter, the employer may unilaterally implement according to law. RCW41.56.123(1). 

### Before an agreementwas reached on a successor agreement to the 2007-2009 CBA, health insurance premiums increased and a dispute arose as to what constituted the status quo forthe payment ofemployer and employee contributions toward 2010 health insurance premiums. The County believed the 

### status quo was the amount it had been paying when the contract expired, with the employees to cover the full amount of the increase in premiums. The Union maintained that status quo was the amount employees were paying when the 2007-2009 CBA expired, and the County was prohibited from unilaterally charging itmore.No. 71731-6-1/3 In December 2009, the Union filed a complaint with the Public Employment Relations Commission (PERC), alleging that the County committed

an unfair labor practice (ULP), in violation of the PECBA, when itwithheld the amount of the increase in health insurance premiums from employees' paychecks, unilaterally altering the status quo. In its ULP complaint, the Union sought an award of attorney fees, costs, and interest. The PERC hearing examiner recognized that, although the parties had not 

### contractually agreed to a specific percentage split inpremiums, the mutual "caps"
on health insurance premium contributions could not coexist, given the increase 

### inpremiums owed for 2010. Clerk's Papers (CP) at 35. The hearing examiner determined that the status quo was a split ofthe increased premiums based on 

### the relative percentages of the employer and employee contributions each made in 2009. The hearing examiner concluded that because the County's withholding ofsums inexcess of the designated employee contribution rate was a unilateral change inthe status quo, itconstituted a ULP. As a remedy, the hearing examiner ordered partial refunds ofthe premiums collected from the employees 

### during bargaining. The hearing examiner did not grant the Union's requestfor attorney fees, costs, and interest. The County's appeal of the hearing examiner's decision to the PERC board was denied. 

### The Union did not appeal the hearing examiner's decision of its requestfor 

### attorney fees and costs. Instead, itfiled suit in the Kitsap County Superior Court, 

### seeking ajudgmentfor the attorney fees and costs incurred in the ULP 

### proceeding and for attorney fees and costs incurredin the superior court action.No. 71731-6-1/4 The Union filed a motion for summaryjudgment, contending that assessment of fees and costs was mandatory under RCW 49.48.030. The court granted the Union's motion and entered ajudgmentforfees and costs. The County filed a motion for reconsideration, which was denied. The County appeals. DISCUSSION We review the entry ofsummaryjudgment de novo, engaging inthe same 

### inquiryas the trial court. Summaryjudgment is proper ifthere is no genuine issue of material fact and the moving party is entitled tojudgment as a matter of law. 

### CR 56(c). Likewise, we review questions of law and issues ofstatutory 

### interpretation de novo. Cashmere Valley Bank v. State Dep't ofRevenue, 175 Wn. App. 403, 408, 305 P.3d 1123 (2013) (citations omitted). RCW 49.48.030 authorizes an award ofattorney fees for employees who 

### must sue in order to collectwages owed from their employers: "In any action in 

### which any person is successful in recoveringjudgment forwages or salary owed to him or her, reasonable attorney's fees, in an amountto be determined by the 

### court, shall be assessed against said employer or former employer." RCW 49.48.030 is a remedial statute, which courts construe liberally to effect its 

### purpose. Int'l Ass'n ofFire Fighters. Local 46 (IAFF) v. Citv ofEverett, 146Wn.2d 29, 34, 42 P.3d 1265 (2002); Cohn v. State. Dep't ofCorrections, 78 Wn. App. 63, 66-67, 895 P.2d 857 (1995). 

### The trial court recognized that the authority to award attorney fees under the PECBA was limited to extraordinary circumstances when the employer has 

### engaged in a repetitive pattern ofillegal conduct, egregious orwillful bad acts,No. 71731-6-1/5 and/orwhen an employer has offered frivolous or meritless defenses to a ULP allegation. See State ex rel. Washington Federation ofState Emp.. AFL-CIOv. Board ofTrustees of Central Washington University. 93 Wn.2d 60, 69, 605 P.2d 

### 1252 (1980). The court also determined itwas undisputed that no extraordinary circumstances were present in this case. But relying on IAFF, the court concluded thatthe limitations did not apply to an action brought under RCW 49.48.030 because the statute is remedial in nature, jd. Accordingly, itawarded 

### the Union the attorney fees incurred in PERC proceedings. The Unionalso relies


### on IAFF in urging that we affirm the trial court. We disagree that the case is controlling. In IAFF, 146 Wn.2d at 41, our Supreme Court affirmed an award under 

### RCW49.48.030 of attorney fees incurred in a grievance arbitration proceeding. 

### TheCity ofEverett hadsuspended two members of a local fire fighters' union. \± at 32. The union brought a grievance proceeding againstthe City, arguing that 

### the suspensions violated the union'scollective bargaining agreement with the City. Id As provided forin the CBA, the parties submitted the grievance to arbitration. Id. The arbitrator ruled that the suspensions violated the CBA, 

### ordered the City to set aside the suspensions, and awarded back pay. \± 

### Following the arbitration, the union requested that the City pay the attorney fees incurred challenging the suspensions, jd. at 33. The City refused and the union filed suit insuperior court, seeking an award of attorney fees under RCW 49.48.030. id. Ruling on cross motions for summaryjudgment, the trial court denied the union's motion, granted the City's motion, and dismissed the union'sNo. 71731-6-1/6 claim for attorney fees. kL On appeal, we reversed and held that the union was entitled to attorney fees under the statute. Jd. Our Supreme Court granted
certiorari and affirmed. Id. at 41. The Supreme Court held that a grievance arbitration for back pay is an "action" for a "judgmentfor wages or salary" withinthe meaning of RCW 49.48.030. Jd. at 34. The Court determined that the plain meaning ofthe term "action," as used inthe statute, included anyjudicial proceeding, id. at40-41. It 

### explained that arbitration proceedings have often been held to be "judicial" in nature, at least in part because arbitrators, when acting underthe broad authority 

### granted them by the parties and the statutes, become thejudges of both law and fact.jd. at 37-38. Thus, an arbitration is often a substitute forjudicial action in the courts and, where a party recovers wages in an arbitration proceeding, attorney fees are available under RCW 49.48.030. jd. The Union contends there is no meaningful distinction between an 

### arbitration hearing and ULP proceedings before the PERC because both are 

### quasi-judicial proceedings. The Union points out that in the ULP proceeding below the parties presented witnesses, subjected such witnesses to cross 

### examination, and presented documentary evidence, and that the relief itsought was the recovery ofwages. But the court in IAFF was careful to distinguish between arbitrationproceedings and proceedings before administrative tribunals, id at 42, n.11. In so doing, it specifically cited Cohn, 78 Wn. App. 65, 67 n.5. Because Cohn addressed an appeal from a government agency, not 

### an arbitration proceeding, it is distinguishable. In holdingthatthe 

### Board and the superiorcourt had no authority to award attorney fees,No. 71731-6-1/7 Cohn was primarily relying on the statutory authority granted to the Board inchapter41.64 RCW and Title 358 WAC. These statutes and rules apply to proceedings before the Board and not to labor arbitration proceedings. In fact, the court inCohn explicitly 

### acknowledged Division One's extension of RCW49.48.030 to 

### arbitration proceedings, while still rejecting it in the context of the Board. IAFF, 146 Wn.2d at42-43 (citations and footnote omitted). Moreover, there are material distinctions between the arbitration in IAFF 

### and the administrative proceeding in this case. In deciding the matter before it, the arbitrator inIAFF had relatively unbridled authority to apply the law and fashion remedies. The PERC, on the other hand, was strictly limited to the 

### issues, procedures, and remedies prescribedin itsgoverning statutes and 

### regulations. Thedistinction between arbitration andadministrative proceedings is particularly evidentwhen considering an arbitrator's broad authoritytoaward attorney fees as compared to an administrative agency,which only has such authority as specifically delegated toit bythe legislature, or as otherwise 

### necessary tofulfill its legislative purpose. And while, as discussedabove, PERC has authority toaward attorney fees in certain extraordinary circumstances, it is 

### undisputed, and thetrial courtacknowledged, that no suchcircumstances existin
this case. 

### Wefind Cohn to be dispositive. There, a Department of Corrections (DOC) 

### employee appealed a disciplinary action againsthim to the PersonnelAppeals Board. Cohn. 78 Wn. App. at 65. The hearing examiner reversed the disciplinary 

### action and found the employee was entitled to back pay.\_± The DOC appealedNo. 71731-6-1/8 the decision to the Board, which remanded the case to the examiner, id. On remand, the employee requested attorney fees pursuant to RCW 49.48.030. id. The examiner affirmed the reversal ofthe disciplinary action, but denied the employee's request for attorney fees, concluding that itlacked statutory authority to award such fees. id. The employee appealed the decision to the superior court 

### and requested attorney fees incurred in both the administrative proceeding and the superior court action, id. The trial court affirmed the decision ofthe Board and denied the employee's requestfor attorney fees and costs, Jd 

### On appeal, we acknowledged the remedial nature of RCW49.48.030, but found that "persuasive reasons exist to prohibitthejudicialexpansion of the 

### scope of the statute" in the context ofproceedings arising from administrative action. Jd at 67. We held that, because the Board did not have the authority to 

### award attorney fees to the employee, the superior courtsimilarly lackedauthority
to make such an award. Jd at 69-70. We reached a similar result in Trachtenbero v. Washington State Dep't of 

### Corrections. 122Wn. App. 491, 93 P.3d 217 (2004), decided afterIAFF.1 That
case involvedanother DOC disciplinary proceeding and subsequent appeal to 

### the Personnel Appeals Board. Trachtenberg 122Wn.App. at 493. As in Cohn. the Board reversed the DOC's decision to dismiss an employee and reinstated 

### the employeewith back pay. Jd The employee thenfiled suitin superior courtfor attorneyfees and costs incurred during the administrative appeal, citing RCW
1We note thatonly the amicus curiae,Washington State Office of theAttorney General, cited or discussed Cohn or Trachtenberg. The Union has neither attempted to distinguish those cases from this case norexplicitly argued that either case is no longer good law.No. 71731-6-1/9 49.48.030. id On cross-motions for summaryjudgment, the trial court determined that Cohn controlled and the employee could not recover attorney fees under the statute. Jd We affirmed, concluding that an administrative proceeding is not an "action" for a "judgment for wages" within the meaning of RCW 49.48.030 We also held, as we did in Cohn, that on review ofan administrative order, the trial court had no authority to award attorney fees incurred inthe administrative proceeding where the administrative agency lacked 

### authority to do so under the governing statutory framework.2 Jd at 496-97. We conclude itwas error for the trial court to award attorney fees incurred in an ULP proceeding because such a proceeding is not an "action" for a 

### "judgmentforwages" withinthe meaning of RCW49.48.030. In addition, even if the trial court had authority under RCW 49.48.030, itexceeded its authority here because the extraordinary circumstances necessary for an award ofattorney fees underthe PERC's governing statute, RCW 41.56.160, were absent. Accordingly, the award must be reversed.

Reverse.

WE CONCUR: 

# VJ^IrrlQw

2But we acknowledged that, where an employee brings a lawsuit to recover lost wages, as opposed to initiating administrative proceedings, attorney fees and costs under RCW 49.48.030 are generally available. \± at 497-98.