The CourtofAppeals

ofthe DIVISION I

RICHARD D. JOHNSON, Vtnte nfWnvhinotrm OneUnion Square

Court Administrator/Clerk *lUW %Z!fflT 60° University Street

oeame 98101-4170

(206) 464-7750

TDD: (206)587-5505

September 22, 2014

Edward Earl Younglove, III Donna Jacobs Stambaugh

PO Box 7846 1116 W Riverside Ave

Olympia, WA, 98507-7846 Spokane, WA, 99201-1106

edy@ylclaw.com donnas@atg.wa.gov

Anita Hunter

1212 Jefferson St SE Ste 300

Olympia, WA, 98501-2332

anitah@wfse.org

CASE #: 70541-5-1

State of WA-Office of The Governor. Appellant v. WA Federation of State Employees,

Respondent

King County, Cause No. 12-2-24215-1 .SEA

Counsel:

Enclosed is a copy of the opinion filed in the above-referenced appeal which states in part:

"We affirm."

Counsel may file a motion for reconsideration within 20 days of filing this opinion pursuant to

RAP 12.4(b). If counsel does not wish to file a motion for reconsideration but does wish to

seek review by the Supreme Court, RAP 13.4(a) provides that ifno motion for reconsideration

is made, a petition for review must be filed in this court within 30 days.

In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by

a cost bill filed and served within ten days after the filing of this opinion, or claim for costs will

be deemed waived.

Sincerely,

Richard D. Johnson

Court Administrator/Clerk

jh

Enclosure

c: The Honorable Jean Z. Rietschel
mill t'L IS

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTONOFFICE OF THE GOVERNOR,

Appellant,

v.

PUBLIC EMPLOYMENT

RELATIONS COMMISSION,

Respondent,

WASHINGTON FEDERATION

OF STATE EMPLOYEES,

Respondent.

No. 70541-5-1

DIVISION ONE

PUBLISHED OPINION

FILED: September 22, 2014

Leach, J. — The State appeals a superior court decision affirming a Public

Employment Relations Commission (PERC or Commission) decision that

included certain independent contractor interpreters in the statewide collective

bargaining unit defined in RCW 41.56.030(10). These interpreters work in local

health jurisdictions and public hospitals through the voluntary Medicaid

Administrative Match (MAM) program. The State claims this statute authorizes

collective bargaining only with interpreters paid from state funds and that PERC

exceeded its authority and erroneously interpreted and applied the statute by

including in the bargaining unit interpreters paid from local and federal matching

funds under the MAM program. Because the Commission did not exceed its
No. 70541-5-1/2

authority or err in its interpretation of the statute and substantial evidence

supports its finding that the statute includes MAM interpreters in the statewide

bargaining unit, we affirm.

FACTS

Under the Medicaid program, states receive federal matching funds to

provide health-related services to qualified low-income and/or disabled

individuals. The Department of Social and Health Services (DSHS) administers

and distributes federal funds received by the state for public assistance and

medical services programs.1 DSHS must ensure the availability of bilingual

services for non-English speaking applicants and recipients.2 Private health care

providers who accept Medicaid patients also receive federal funds and must

ensure bilingual services.

To reduce the burden on individual health care providers who accept

Medicaid patients at low reimbursement rates, DSHS has voluntarily undertaken

to fund these providers' interpreter services. DSHS sometimes uses its own

employees to provide interpreter services. It also provides these services by

contracting with nonprofit language access brokers, who receive a fixed fee

based on an estimated number of appointments. DSHS sets a separate hourly

rate for interpreters, which the broker passes through to a language access

agency. The language access agency in turn contracts with and pays the

1 RCW 74.04.015.

2 RCW 74.04.025.
No. 70541-5-1/3

individual interpreter. The State's portion of the funds matched by federal

moneys comes from state legislative appropriations.

Under the voluntary MAM program, which DSHS administers under

federally required terms for Medicare and Medicaid services, certain local health

jurisdictions and public hospitals may also receive federal funds for interpreter

services. Participating local entities provide their own matching funds and do not

receive state funding or participate in the DSHS language access brokerage

system.

In 2010, the state legislature passed ESSB 6726,3 which granted

collective bargaining rights to independent contractors providing "spoken

language interpreter services for department of social and health services

[DSHS] appointments or medicaid enrollee appointments." The law designates

the governor as the public employer and independent contractor "language

access providers" (interpreters) as public employees solely for purposes of

collective bargaining on limited subjects.4

In July 2010, the Washington Federation of State Employees (union)

petitioned for certification as the exclusive bargaining representative of a

statewide bargaining unit of language access providers. The State and the union

agreed to a bargaining unit description almost identical to the statutory language.

Later, the union presented a list of 217 interpreters it believed should be included

3 Laws of 2010, ch. 296, § 3(14)(a).

4RCW41.56.510(1).

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No. 70541-5-1/4

in the bargaining unit. The State disagreed. After an election, the union was

certified as the exclusive bargaining representative. The challenges to the

eligibility of the 217 voters did not affect the outcome of the election.

The State and the union then agreed to the eligibility of all but 34 of the

challenged interpreters: 30 working in the MAM program and 4 working in legal

settings. After a hearing, the PERC executive director issued a decision

including all 34 challenged voters in the bargaining unit.5 The State appealed to

the Commission, which affirmed.6 The State then appealed to King County

Superior Court, which reversed the Commission's inclusion of the legal

interpreters but affirmed its inclusion of the 30 MAM interpreters.

The State appeals. The union does not cross appeal to exclusion of the

four legal interpreters.

STANDARD OF REVIEW

The Washington Administrative Procedure Act (WAPA), chapter 34.05

RCW, governs judicial review of a final administrative decision of the

Commission.7 When this court reviews the Commission's action, it sits in the

same position as the trial court, applying the standards of the WAPA directly to

the record of the Commission's proceeding.8 A reviewing court may grant relief

5 Order Determining Eligibility Issues, In re Interpreters United - Wash.

Fed'n of State Emps., No. 23334-E-10-3570 (Wash. Pub. Emp't Relations

Comm'n Nov. 18, 2011).

6 In re Interpreters United -Wash. Fed'n of State Emps., No. 23334-E-10-

3570 (Wash. Pub. Emp't Relations Comm'n June 19, 2012).

7 RCW 41.56.165; RCW 34.05.030(5).

8 Univ. of Wash, v. Wash. Fed'n of State Emps., 175 Wn. App. 251, 258,

303 P.3d 1101 (2013) (citing Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402,

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No. 70541-5-1/5

only if it determines that the Commission's order is invalid for one of the reasons

set forth in the WAPA.9 Here, the State claims the WAPA authorizes judicial

relief from the Commission's order because

(b) The order is outside the statutory authority or jurisdiction

of the agency conferred by any provision of law;

(d) The agency has erroneously interpreted or applied the

law;

(e) The order is not supported by evidence that is substantial

when viewed in light of the whole record before the court, which

includes the agency record for judicial review, supplemented by any

additional evidence received by the court under this chapter.1101

We review the Commission's findings of fact for substantial evidence and its

conclusions of law de novo.11 Substantial evidence exists if it is sufficient to

persuade a fair-minded, rational person of the truth of the matter asserted.12 In

reviewing questions of law, an appellate court may substitute its determination for

the Commission's.13 But in view of PERC's expertise in labor relations, courts

give its interpretation of the collective bargaining statutes "great weight and

substantial deference."14 Where an administrative decision involves a mixed

858 P.2d 494 (1993)); City of Seattle v. Pub. Emp't Relations Comm'n, 160 Wn.

App. 382, 388, 249 P.3d 650 (2011).

9 Univ ofWash., 175 Wn. App. at 258 (citing Yakima Police Patrolmen's

Ass'nv. City of Yakima, 153 Wn. App. 541, 553, 222 P.3d 1217 (2009)).

10 RCW 34.05.570(3)(b), (d), (e).

11 Univ. of Wash., 175 Wn. App. at 258 (citing Yakima Police, 153 Wn.

App. at 552).

12 City of Federal Way v. Pub. Emp't Relations Comm'n, 93 Wn. App. 509,

512, 970 P.2d 752 (1998).

13 City of Seattle, 160 Wn. App. at 388 (citing Pasco Police Officers' Ass'n

v. Citv of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827 (1997)).

14 Citv of Vancouver v. Pub. Emp't Relations Comm'n, 107 Wn. App. 694,

703, 33P.3d74(2001).

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No. 70541-5-1/6

question of law and fact, "'the court does not try the facts de novo but it

determines the law independently of the agency's decision and applies it to facts

as found by the agency.'"15 We review statutory interpretation de novo.16

ANALYSIS

The State contends first that the Commission erroneously interpreted

RCW 41.56.030 and .510 to include in the statewide bargaining unit interpreters

providing services for local health jurisdictions and public hospitals under the

MAM program. According to the State, because these interpreters are not paid

with state funds budgeted by the state legislature, they cannot be included in the

statewide bargaining unit.

When construing a statute, our primary objective is to ascertain and carry

out the legislature's intent.17 Statutory interpretation begins with the statute's

plain meaning, which we discern from the ordinary meaning of its language in the

context of the whole statute, related statutory provisions, and the statutory

scheme as a whole.18 If the statute's meaning is unambiguous, our inquiry

ends.19

15 Citv of Seattle, 160 Wn. App. at 388 (quoting Renton Educ. Ass'n v.

Pub. Emp't Relations Comm'n, 101 Wn.2d 435, 441, 680 P.2d 40 (1984)).

16 State v. Gray, 174Wn.2d920, 926, 280 P.3d 1110(2012).

17 Gray, 174 Wn.2d at 926.

18 Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d

1283(2010).

19 Lake, 169 Wn.2d at 526.

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No. 70541-5-1/7

RCW 41.56.510 authorizes collective bargaining for certain language

access providers. The statute defines "language access provider" for purposes

of collective bargaining as follows:

(10)(a) "Language access provider" means any independent

contractor who provides spoken language interpreter services for

department of social and health services appointments or medicaid

enrollee appointments, or provided these services on or after

January 1, 2009, and before June 10, 2010, whether paid by a

broker, language access agency, or the department.

(b) "Language access provider" does not mean an owner,

manager, or employee of a broker or a language access agency.[20]

For purposes of collective bargaining only, "the governor is the public employer

of language access providers who, solely for the purposes of collective

bargaining, are public employees."21 RCW 41.56.510(2) requires a single

statewide bargaining unit for these language providers.22 RCW 41.56.510(2)-(9)

limits the scope of collective bargaining for this unit to certain matters and sets

out directions and requirements for state budget approval of collective bargaining

agreements.

The State argues that "[t]o apply the statute to the Medicaid Administrative

Match program, the Commission had to ignore these statutory provisions dealing

with the appropriation process." The State asserts that while interpreters under

the brokerage program are "doing business with DSHS," those in the MAM

program are "not connected to the state system for interpreters." The State also

20 RCW 41.56.030(10)(a)-(b). This section has been renumbered since

the Commission's decision, which refers to it as RCW 41.56.030(11).

21 RCW 41.56.510(1).

22RCW41.56.510(2)(a).
No. 70541-5-1/8

points to this sentence in the 2011 state budget legislation: "The amounts in this

subsection do not include federal administrative funds provided to match

nonstate expenditures by local health jurisdictions and government hospitals."23

The State concludes from this that the statute does not extend collective

bargaining to "those separately-funded [MAM] interpreters" who are not

"connected to the state budgetary process."

The State's argument ignores the fact that under both the DSHS

brokerage system and the MAM program, independent contractor interpreters

are "doing business" with language access agencies, which pay the interpreters

directly. Neither group of interpreters contracts directly with DSHS. And, as

PERC noted in its decision, "[t]he source of funds is not relevant to our analysis."

"Source of funds is not among the unit determination criteria set forth in RCW

41.56.060, and .... it is commonplace to find a mix of federally funded, state

funded, grant funded, and locally funded positions commingled in local

government bargaining units."24 "The source of funds does not equate with the

right of control when determining who is the employer."25

By including independent contractor interpreters paid by third party

agencies without distinguishing between funding sources, the statute by its terms

23 Engrossed Second Substitute H.B. 1087, at 78-79, 62nd Leg., 1st

Spec. Sess. (Wash. 2011).

24 In re Benton County, No. 7651-A (Wash. Pub. Emp't Relations Comm'n

Apr. 8, 2003) (citing Direction of Election, In re Kitsap County, No. 4314 (Wash.

Pub. Emp't Relations Comm'n Mar. 9, 1993)).

25 Order of Dismissal, In re Spokane Public Library, No. 14439-C-99-930

(Wash. Pub. Emp't Relations Comm'n Dec. 8, 2000).

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No. 70541-5-1/9

includes both the DSHS brokerage system interpreters and the MAM program

interpreters. The Commission correctly concluded that independent contractor

MAM interpreters provide spoken language services at Medicaid enrollee

appointments. According to the plain language of the statute, these interpreters

are language access providers properly included in the bargaining unit.

Therefore, the Commission did not erroneously interpret RCW 41.56.030 and

.510 when it included in the bargaining unit the independent contractor

interpreters in the MAM program.

The State contends next that substantial evidence does not support

PERC's finding that MAM interpreters are paid in the manner required by statute.

RCW 41.56.030(10) includes in the definition of eligible language access

providers "any independent contractor who provides spoken language interpreter

services for department of social and health services appointments or medicaid

enrollee appointments, . . . whether paid by a broker, language access agency,

or the department." The two interpreters who testified at the administrative

hearing provided services at public hospitals as part of the MAM program. These

independent contractor interpreters testified that language access agencies

employed and paid them and that they did not know the source of the agencies'

funding. The statute includes independent contractor interpreters paid by

language access agencies. It does not exclude interpreters whose services are

not paid with state funds. Substantial evidence supports the Commission's

finding that independent contractor MAM interpreters are paid in the manner
No. 70541-5-1/10

required by RCW 41.56.030(10) and therefore meet the statutory definition of a

language access provider.

Finally, the State contends that PERC exceeded its authority by

determining bargaining relationships for third parties "outside the realm of public

employment" and therefore "outside the parameters of RCW 41.56.510."

According to the State, PERC's decision "would force third party entities to

comply with terms of a collective bargaining agreement in which they had no

participation or authority in crafting and for which they receive no state money to

implement" and that this amounts to an unauthorized "unfunded mandate[ ]."

PERC has jurisdiction and authority "to provide, in the area of public

employment, for the more uniform and impartial (a) adjustment and settlement of

complaints, grievances, and disputes arising out of employer-employee relations

and, (b) selection and certification of bargaining representatives."26 The

Commission also has authority to determine collective bargaining units upon

consideration of factors such as "the duties, skills, and working conditions of the

public employees; the history of collective bargaining by the public employees

and their bargaining representatives; the extent of organization among the public

employees; and the desire of the public employees."27

Through collective bargaining, the State and the previous bargaining unit

of DSHS brokerage interpreters negotiated contracts that affected language

26 RCW 41.58.005(1).

27 RCW 41.56.060(1).

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No. 70541-5-1/11

access agencies not parties to those agreements. Including MAM interpreters in

the bargaining unit will produce the same types of transactions and relationships.

The PERC decision does not affect collective bargaining relationships between

public hospitals or local health jurisdictions and their own employees but only the

compensation for independent contractor interpreters, who benefit from a

statewide collective bargaining unit.

As the Commission noted in its decision, the legislature has the authority

to identify exclusions to the statewide bargaining unit but to this point has not

done so. We hold that PERC did not exceed its authority under RCW 41.58.005

and 41.56.060 when it included the MAM program interpreters in the statewide

bargaining unit of interpreters.

CONCLUSION

Because PERC correctly interpreted and applied RCW 41.56.030 and

.510, substantial evidence supports its finding that interpreters providing services

through the MAM program are language access providers as defined by the

statute, and the Commission did not exceed its statutory authority, we affirm.

WE CONCUR:

•t/. (N\^- . \ y \ J.

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