Teamsters Local 839 v. Benton County ( 2020 )

FILED
NOVEMBER 12, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
TEAMSTERS LOCAL 839, ) No. 36974-9-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
BENTON COUNTY, )
)
Appellant. )
LAWRENCE-BERREY, J. — Benton County appeals the Public Employment
Relations Commission’s (PERC) order that determined the County committed unfair
labor practices (ULPs) in the methods it used to recoup overpayment of wages from its
employees, unit members of Teamsters Local 839. The County argues the methods it
used complied with RCW 49.48.200 and RCW 49.48.210(10), the wage overpayment
statutes. It argues PERC misapplied the law by determining that the procedures in the
wage overpayment statutes are subject to chapter 41.56 RCW, the Public Employees’
Collective Bargaining Act (PECBA). We disagree.
We hold that recovery of overpaid wages from a union member’s future paychecks
or accrued leave is a mandatory subject of bargaining. We also hold that the PECBA and
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the wage overpayment statutes do not conflict. Read together, a public employer must
provide employees covered by a collective bargaining agreement the notice required by
RCW 49.48.210(10) and then bargain with the union about how overpaid wages are to be
repaid. We affirm PERC’s order determining that the County committed ULPs.
The County also argues PERC’s remedy is arbitrary and capricious. PERC
required the County to return the parties to status quo ante1 by returning the wages and
accrued leave it recouped from employees, plus interest. We affirm PERC’s remedy and
clarify the applicable interest rate and when interest commences.
FACTS
On November 1, 2016, the Benton County Auditor’s Office discovered an
accounting software error had caused sheriff office employees, including 85 corrections
officers, to be overpaid from June 2016 through September 2016. Whenever hours were
entered into a particular accounting system pay code, the software error caused an
improper increase in compensation. The County, aware that RCW 49.48.200 permitted it
to recoup overpaid wages from its employees’ future wages, decided it would do so.
1
Status quo ante does not deprive the County of its original rights, i.e., collect the
overpaid wages using the correct procedure.
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The next day, Benton County Auditor Brenda Chilton sent Sheriff Steven Keane a
memo that notified him of the coding error. The memo explained how the error occurred
and that the County had the right to recoup overpayments by deducting up to five percent
of gross earnings from employee wages. On November 3, the sheriff’s office e-mailed
the memo to its employees.
Teamsters Local 839 is the bargaining representative for the County’s corrections
officers. Teamsters learned of the November 3 e-mail and the next day filed a Step 2
grievance with Sheriff Keane. The grievance notified Sheriff Keane that state law
permitted deduction from disposable wages, not gross wages, and the memo failed to
provide various information required by state law. Teamsters offered to discuss the
grievance with Sheriff Keane prior to his formal response.
On November 15, the sheriff’s office served its employees with a “Notice-Wage
Overpayment Repayment Demand” letter. Clerk’s Papers (CP) at 61-62. This letter
notified each affected employee that the employee had received wage overpayments, the
overpaid amount, an explanation of the software error, and it provided the entire text of
RCW 49.48.200.
The letter stated the County had begun the statutory process for overpayment
recovery and requested that the employee select one of three options for repayment and
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sign the letter. The options were: (1) deduct the full overpayment amount from the
employee’s next paycheck, (2) deduct an employee-specified amount from future
paychecks, or (3) deduct an amount that would not exceed five percent of the employee’s
disposable earnings in a pay period from future paychecks. There was no option for
contesting the County’s assertion that overpayment occurred or the County’s calculation
of the overpaid amount. The letter stated, if the employee did not respond within 20 days,
and if the amounts were not disputed, the County would begin deducting the statutory five
percent of disposable earnings beginning with the employee’s January 2017 paycheck.
The County did not send a copy of the November 14 letter to Teamsters.
On November 28, the sheriff’s office forwarded a November 23 e-mail to its
employees that informed them of a fourth repayment option—cashing out accrued leave.
The e-mail stated that if an employee did not select a repayment option by December 20,
the default five percent of disposable earnings would be withheld from future paychecks.
The County did not send a copy of the November 23 e-mail to Teamsters.
On November 29, Sheriff Keane sent a letter to Teamsters responding to its Step 2
grievance. In the letter, he cited the following portion of RCW 49.48.210(10): “‘Any
dispute relating to the occurrence or amount of the overpayment shall be resolved using
the grievance procedures contained in the collective bargaining agreement.’” CP at 400.
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Implying that no corrections officer had disputed the occurrence or amount of
overpayment, he denied Teamster’s grievance.
On November 30, Teamsters sent a demand-to-bargain letter to Sheriff Keane.
The letter stated if wage overpayments were made, Teamsters was in total agreement that
employees should repay the overpaid amounts, but that Teamsters “must be allowed to
bargain how this [would be] done.” CP at 535. On December 1, Sheriff Keane sent an e-
mail entitled “Demand to Bargain Letter” to Teamsters, Auditor Chilton, and others.
CP at 537-38. Sheriff Keane stated he was willing to meet and discuss his role and
limited authority, but he was unable to bargain the authority of the auditor’s office and
their statutory responsibility for recovering overpayments. He acknowledged that
Teamsters had made clear to him that failure to bargain would result in the union filing a
ULP complaint.
On December 1, Teamsters responded that it was “available to bargain anytime
and eager to get the overpayment of wage issue(s) resolved as soon as possible” and
requested dates Sheriff Keane would be available to bargain. CP at 538.
In January 2017, the County began deducting from employee wages and accrued
leave. These deductions occurred without bargaining with or agreement of Teamsters.
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By August 2017, the County had fully recovered the overpayments from its corrections
officers.
PROCEDURE
Teamsters filed two separate ULP complaints with PERC. The first complaint
alleged the County circumvented Teamsters when it presented to corrections officers their
options for repayment without first bargaining these options with Teamsters. It also
alleged the County refused to bargain with Teamsters over its plan to recover
overpayments. The second complaint alleged the County refused to bargain by
unilaterally deducting overpayments from corrections officer’s wages and accrued leave
without providing Teamsters an opportunity to bargain. A PERC ULP manager reviewed
the complaints, notified the parties of the stated causes of action, and forwarded them to
an “Examiner” for processing. The Examiner consolidated the two complaints.
Teamsters and the County filed cross motions for summary judgment. The
motions presented two legal questions. The first question was whether the PECBA
applied to recovery of overpaid wages. The parties agreed that the PECBA applied only
if recovery of overpaid wages was a mandatory subject of bargaining. If the PECBA
applied, the second question was whether the PECBA prevailed in the event there was a
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conflict between it and RCW 49.48.200 and RCW 49.48.210(10), the wage overpayment
statutes.
The Examiner concluded that recovery of overpaid wages was a mandatory subject
of bargaining, so the PECBA applied. The Examiner also concluded that the wage
overpayment statutes did not insulate the County from complying with the PECBA. The
Examiner ruled the County committed ULPs when it circumvented Teamsters and refused
to bargain the decision of how the employees would repay the overpayments and then
unilaterally deducted the overpayments without bargaining. The Examiner ordered the
County to restore the status quo ante by returning the wages and accrued leave collected,
“plus interest.” CP at 79.
The County appealed to the PERC board. The PERC board issued a decision
affirming the Examiner and adopting its findings of fact, conclusions of law, and order.
The County appealed PERC’s decision to the Benton County Superior Court. That court
affirmed PERC’s decision. The County then appealed to this court.
ANALYSIS
STANDARDS OF REVIEW
We review an appeal from a PERC decision involving a ULP in accordance with
the Administrative Procedure Act (APA), chapter 34.05 RCW. Amalgamated Transit
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Union, Local 1384 v. Kitsap Transit, 187 Wash. App. 113, 123, 349 P.3d 1 (2015); City of
Vancouver v. Pub. Emp’t Relations Comm’n, 107 Wash. App. 694, 702, 33 P.3d 74 (2001).
Under the APA, we may grant relief from an agency order for any one of nine reasons set
forth in RCW 34.05.570(3). Of these, the one relevant to our disposition is whether
PERC erred in interpreting or applying the law. RCW 34.05.570(3)(d).
When reviewing questions of law, an appellate court may substitute its
determination for that of PERC, although PERC’s interpretation of the PECBA is entitled
to great weight and substantial deference, given PERC’s expertise in administering this
law. City of Bellevue v. Int’l Ass’n of Fire Fighters, Local 1604, 119 Wash. 2d 373, 382,
831 P.2d 738 (1992); Amalgamated Transit Union, 187 Wash. App. at 123.
THE PECBA APPLIES
In its briefing, the County argues the PECBA does not apply to recovery of
overpaid wages. We address this argument first. Only if the PECBA applies would we
need to address the County’s central argument that the wage overpayment statutes prevail
in the event of a conflict between them and the PECBA.
Washington law splits collective bargaining issues into two categories—mandatory
subjects of bargaining and permissive subjects of bargaining. City of Everett v. Pub.
Emp’t Relations Comm’n, 11 Wash. App. 2d 1, 15, 451 P.3d 347 (2019). “‘[I]ssues that
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address “wages, hours and other terms and conditions of employment” are “mandatory”
subjects about which the parties must bargain.’” Id. (alteration in original) (quoting
Pasco Police Officers’ Ass’n v. City of Pasco, 132 Wash. 2d 450, 460, 938 P.2d 827 (1997)).
On the other hand, managerial decisions that “only remotely affect ‘personnel matters’”
are permissive subjects of bargaining. Int’l Ass’n of Fire Fighters, Local Union 1052 v.
Pub. Emp’t Relations Comm’n, 113 Wash. 2d 197, 200, 778 P.2d 32 (1989). Determination
of whether a subject of bargaining is mandatory or permissive is one of the fundamental
responsibilities of PERC. City of Everett, 11 Wash. App. 2d at 16. We, therefore, look to
PERC’s previous decisions for guidance on whether recovery of overpaid wages is a
mandatory subject of bargaining.
PERC previously ruled on this question in Tacoma Police Union Local 6 v. City of
Tacoma, No. 23181-U-10-05904 (Wash. Pub. Emp’t Relations Comm’n June 15, 2011).
In City of Tacoma, the police chief reversed department policy and directed unionized
officers to pay back wages they received participating, while on duty, in a charity
basketball game. The police chief, without notifying the union and providing an
opportunity to bargain over repayment, gave the officers three choices how to pay back
the wages. The union filed a ULP. PERC held:
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There is no question that payment of wages is a mandatory subject of
bargaining. The decision requiring members to forfeit paid wages
represents a unilateral change that should have been bargained. The union
was presented with a “fait accompli” as the employer did not provide notice
to the union and made a unilateral decision to recoup wages.
Id. at 5.
The County attempts to distinguish City of Tacoma. It argues that case involved
employees being required to forfeit wages purposely paid, while the present case involves
employees repaying wages mistakenly paid. We understand the nuance, but disagree that
the nuance changes the outcome. City of Tacoma squarely stands for the proposition that
recovery of overpaid wages is a mandatory subject of bargaining. Whether the wages
were purposefully paid or mistakenly paid does not change whether the wages were
overpaid.
As we previously noted, PERC’s construction of the PECBA is entitled to great
weight and substantial deference. We see no reason to disagree with PERC’s view, in
this case, that deductions from employees’ future paychecks or accrued leave are “issues
that addresses ‘wages,’” which is a mandatory subject. Pasco Police Officers’ Ass’n, 132
Wash. 2d at 460. We conclude that recovery of overpaid wages from a union member’s
future paychecks or accrued leave is a mandatory subject of bargaining.
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THE PECBA PREVAILS OVER ANY CONFLICTING STATUTE
The County contends PERC erred by ruling that the PECBA prevails over the
wage overpayment statutes. It argues those statutes are more recent and specific than the
PECBA, and the legislature authorized public employers to bypass unions and discuss
repayment of overpaid wages directly with union member employees.
We review issues of statutory construction de novo. Columbia Riverkeeper v. Port
of Vancouver USA, 188 Wash. 2d 421, 432, 395 P.3d 1031 (2017). When interpreting a
statute, our fundamental objective is to ascertain and give effect to the legislature’s intent.
Id. at 435. We begin with the plain meaning of the statute. Id. We consider the text of
the provision, the context of the statute in which the provision is found, related
provisions, amendments to the provision, and the statutory scheme as a whole. Id. If the
meaning of the statute is plain on its face, then we must give effect to that meaning as an
expression of legislative intent. Id. If, after this inquiry, the statute remains ambiguous
or is unclear, it is appropriate to resort to canons of construction and legislative history.
Id.
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RCW 49.48.200(1)2 authorizes a public employer to recover overpaid wages by
deducting a portion of an employee’s subsequent wages and permits deductions up to five
percent of the employee’s disposable income in a pay period or the full debt from the
employee’s final pay period. RCW 49.48.200(2) explains that an employee may agree to
pay more than five percent of disposable income in a pay period and that an employer and
employee may agree to any amount or method of repayment.
RCW 49.48.210 sets forth the procedure a public employer must follow to recover
overpaid wages from future paychecks. Subsections (1) through (9) outline the procedure
for nonunion public employees. The detailed process envisions the employer providing
the employee notice of certain specific matters, an opportunity to exchange information,
and the option for the employee to request an adjudicative proceeding.
2
RCW 49.48.200 provides:
Overpayment of wages—Government employees. (1) Debts due
the state or a county or city for the overpayment of wages to their respective
employees may be recovered by the employer by deductions from
subsequent wage payments as provided in RCW 49.48.210, or by civil
action. If the overpayment is recovered by deduction from the employee’s
subsequent wages, each deduction shall not exceed: (a) Five percent of the
employee’s disposable earnings in a pay period other than the final pay
period; or (b) the amounts still outstanding from the employee’s disposable
earnings in the final pay period. The deductions from wages shall continue
until the overpayment is fully recouped.
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Subsection (10) is the procedure for union public employees and is the crux of the
parties’ arguments.
RCW 49.48.210(10) provides:
When an employer determines that an employee covered by a collective
bargaining agreement was overpaid wages, the employer shall provide
written notice to the employee. The notice shall include the amount of the
overpayment, the basis for the claim, and the rights of the employee under
the collective bargaining agreement. Any dispute relating to the occurrence
or amount of the overpayment shall be resolved using the grievance
procedures contained in the collective bargaining agreement.
The County argues the wage overpayment statutes should control over the PECBA
because they are newer and more specific. Generally, it is true that a more specific statute
controls over a more general one. Lenander v. Dep’t of Retirement Sys., 186 Wash. 2d 393,
412, 377 P.3d 199 (2016). However, this argument ignores an important part of the
PECBA. The legislature, in crafting the PECBA, decided it should be construed liberally
and “if any provision of this chapter conflicts with any other statute, ordinance, rule or
regulation of any public employer, the provisions of this chapter shall control.”
RCW 41.56.905.
If the legislature intended to make the wage overpayment statutes control over the
PECBA, it would have specifically provided for this. We presume that the legislature,
when writing legislation, knows the area of law it is legislating within. Wynn v. Earin,
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163 Wash. 2d 361, 371, 181 P.3d 806 (2008). We, therefore, presume the legislature knew
the PECBA would control over the wage overpayment statutes. Without an express
intention otherwise, the PECBA must control over other legislation.
The County argues that giving the PECBA precedence over the wage overpayment
statutes creates disharmony. Statutes dealing with the same subject are to be construed
harmoniously, if reasonably possible. Hallauer v. Spectrum Props., Inc., 143 Wash. 2d 126,
146, 18 P.3d 540 (2001). The wage overpayment statutes and the PECBA overlap with
respect to the process a public employer must follow to recover overpaid wages from its
union employees.
We disagree with the County that giving the PECBA precedence over the wage
overpayment statutes creates disharmony. First, there is nothing in the wage overpayment
statutes that expressly permits a public employer to bypass its employees’ bargaining
representative. Nothing in RCW 49.48.200 or RCW 49.48.210(10) requires a public
employer to have direct interaction with its employees. Second, the legislature
recognized that repayment of overpaid wages involves a union member’s bargained for
rights when, in subsection (10), it required the employer’s notice to include “the rights of
the employee under the collective bargaining agreement.” These rights include union
representation on wage issues and the right to use the agreement’s grievance procedure in
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the event there is a dispute relating to the occurrence or amount of the overpayment.
Third, a public employer can provide its union member employees with the notice
required by RCW 49.48.210(10) and then bargain with the union about repayment
options. Construed in this manner, the two statutory provisions are harmonized.
The County next argues that State v. Adams, 107 Wash. 2d 611, 732 P.2d 149 (1987),
holds that collective bargaining is not required for a public employer to recover overpaid
wages from union member employees. We disagree. In Adams, the court reviewed the
State’s attempt to recover overpaid wages from 400 employees who disputed they were
overpaid. Id. at 613. This predated the wage overpayment statutes. There, the State sued
employees who had been overpaid and requested that the court permit it to deduct
“reasonable amounts” from their future paychecks. Id. at 614, 619. The union was not a
party to the action. The Adams court held that the State could not deduct reasonable
amounts from overpaid employees’ future paychecks in the absence of protective
statutory procedures. Id. at 615. The Adams court did not discuss whether the State was
required to bargain with the union to recover overpaid wages. The issue simply was not
raised. We will not infer that the Adams court decided the union’s rights, especially given
that the union was not a party to the action.
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We conclude that the PECBA prevails over the wage overpayment statutes in the
event of a conflict. Even so, we construe the relevant provisions as not being in conflict.
The provisions, construed harmoniously, require a public employer to provide union
member employees notice consistent with RCW 49.48.210(10) and then bargain with the
union about repayment.
Here, the County circumvented Teamsters by directly dealing with its members
about repayment of overpaid wages, it refused Teamsters’ request to bargain over
repayment options, and it deducted amounts from union member wages and accrued leave
without providing Teamsters an opportunity to bargain. The wage overpayment statutes
do not insulate the County from these actions. We affirm PERC’s determinations that the
County committed ULPs.
PERC’S REMEDY
The County contends PERC’s remedy was arbitrary and capricious. It argues if it
did violate any law, the law was unsettled and so its employees should not have been
awarded repayment with interest. We disagree.
Although this court reviews conclusions of law made by PERC de novo, “PERC’s
interpretation of collective bargaining statutes is ‘entitled to substantial weight and great
deference.’” Thorpe v. Inslee, 188 Wash. 2d 282, 290, 393 P.3d 1231 (2017) (quoting City
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of Bellevue, 119 Wash. 2d at 382). As this court previously found, “PERC’s decisions are
accorded extraordinary judicial deference, especially in the matter of remedies.” Pasco
Hous. Auth. v. Pub. Emp’t Relations Comm’n, 98 Wash. App. 809, 812, 991 P.2d 1177
(2000). Unless the remedy is clearly beyond the scope of PERC’s power, we generally
affirm. Id. at 813.
The remedy applied in this case—to return its union member employees to status
quo ante by repaying the withheld wages plus interest—is the standard remedy in cases
where an employer commits a unilateral change. Lewis County Corr. Guild v. Lewis
County No. 22324-U-09-5692 (Wash. Pub. Emp’t Relations Comm’n July 15, 2011).
This is clearly within PERC’s authority in order to effectuate bargaining agreements, and
our limited review ends there. Once the County returns its employees to status quo ante,
plus interest, it may then recover the overpaid wages by following the correct procedure.
COMMENCEMENT OF INTEREST AND INTEREST RATE
PERC did not specify a commencement date of interest or an interest rate. The
County raised this issue in a footnote, but Teamsters did not respond. Because this issue
is likely to arise if not decided now, we requested supplemental briefing. Philadelphia II
v. Gregoire, 128 Wash. 2d 707, 716, 911 P.2d 389 (1996).
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The County first argues that no interest is owed. We disagree. PERC affirmed
and adopted the Examiner’s findings, conclusions, and order. The Examiner’s order
explicitly awarded interest as part of its status quo ante remedy. This envisioned
returning the union employees to where they were as if the County had not wrongfully
deducted their wages. We construe this as requiring interest to accrue on each sum on the
date the sum was wrongfully deducted.
We now must decide the applicable interest rate. “Prejudgment interest is allowed
in civil litigation at the statutory judgment interest rate, RCW 4.56.110, RCW 19.52.020,
when a party to the litigation retains funds rightfully belonging to another and the amount
of the funds at issue is liquidated, that is, the amount at issue can be calculated with
precision and without reliance on opinion or discretion.” Mahler v. Szucs, 135 Wash. 2d
398, 429, 957 P.2d 632 (1998); see also Pub. Util. Dist. No. 2 of Pacific County v.
Comcast of Washington IV, Inc., 184 Wash. App. 24, 80, 336 P.3d 65 (2014); Unigard Ins.
Co. v. Mut. of Enumclaw Ins. Co., 160 Wash. App. 912, 925, 250 P.3d 121 (2011). The
parties do not dispute that the amount owed is liquidated. In general, the judgment
interest rate is 12 percent per annum, unless otherwise provided for in RCW 4.56.110.
See RCW 4.56.110(6); RCW 19.52.020(1)(a).
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The County argues the interest rate is governed by RCW 4.56.110(3). We
disagree. By its terms, that subsection applies to judgments founded on the “tortious
conduct” of a public agency. Here, the Examiner’s order is founded on its conclusions
that the County committed ULPs. A ULP is not a tort. See Wright v. Terrell, 162 Wash. 2d
192, 196, 170 P.3d 570 (2007) (“[ULP] claims under chapter 41.56 RCW are not tort
claims for damages and are thus not subject to the claims filing statute.”). We conclude
the prejudgment interest rate is 12 percent per annum.
AMICI ARGUMENTS
The Washington Association of County Officials, Washington State Association of
Counties, and Washington State Association of Municipal Attorneys filed an amici curiae
brief.
Amici make three arguments: (1) PERC exceeded its authority by interfering with
the County’s managerial prerogative and discretionary act of the elected auditor to collect
public debts, (2) PERC’s order violated constitutional and statutory provisions for
separation of powers because it had no authority to direct the elected auditor, not a party
to the collective bargaining agreement, how to recover overpaid funds, and (3) PERC’s
remedy, requiring it to return collected overpaid wages, is an ultra vires gift of public
funds prohibited by article VIII, section 7 of the Washington Constitution.
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These arguments reflect a misunderstanding of PERC’s order and potentially our
decision today. Our decision (and PERC’s order) does not prevent the elected auditor
from recovering overpaid wages. Rather, our decision permits the County to collect the
overpaid wages, but requires the County and its officials to comply with state law
procedures. While it is true the elected auditor is not a party to the collective bargaining
agreement, she must comply with state law. Our decision today is based on state law, not
the collective bargaining agreement.
The purpose of an amicus brief is to help the court with points of law. Ochoa AG
Unlimited, LLC v. Delanoy, 128 Wash. App. 165, 172, 114 P.3d 692 (2005). With only one
minor exception, the issues raised by amici have not been raised by the parties. Briefing
issues outside the scope of the appeal is not helpful to this court. It is improper for an
amicus brief to raise such issues, and we decline to address them. Mains Farm
Homeowners Ass’n v. Worthington, 121 Wash. 2d 810, 827, 854 P.2d 1072 (1993); see also
Cummins v. Lewis County, 156 Wash. 2d 844, 850 n.4, 133 P.3d 458 (2006); Gallo v. Dep’t
of Labor & Indus., 155 Wash. 2d 470, 495 n.12, 120 P.3d 564 (2005); Coburn v. Seda, 101
Wash. 2d 270, 279, 677 P.2d 173 (1984). Cf. State v. Duncan, 185 Wash. 2d 430, 440, 374
P.3d 83 (2016) (“We may, but usually do not, reach arguments raised only by amicus.”).
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Affirmed.
Lawrence-Berrey, J.
WE CONCUR:
Siddoway, J.
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