Wingert v. Yellow Freight Systems, Inc. , 146 Wash. 2d 841 ( 2002 )

Sanders, J.

(dissenting) — The majority decision assumes that the regulations promulgated by the Department of Labor and Industries pursuant to chapter 49.12 RCW are minimal standards that cannot be waived, whether by an individual employee on an individual basis, e.g., an employee offering to forgo the 10 minute break in exchange for being allowed to leave 10 minutes early, or by the employee’s union representative negotiating on behalf of the employee in the collective bargaining process. Because this assumption is neither supported by the text of the regulation nor consistent with the enabling statute, I dissent.

Regulations must be given their ordinary meaning. See, e.g., Hubbard v. State, 86 Wn. App. 119, 126, 936 P.2d 27 (1997). WAC 296-126-092(4) provides in pertinent part:

Employees shall be allowed a rest period of not less than 10 minutes, on the employer’s time, for each 4 hours of working time. ... No employee shall be required to work more than three hours without a rest period.

By its language, WAC 296-126-092(4) provides employees a right to regular breaks within a designated time frame. The majority, however, reads into this regulation an insupportable limitation on the employees’ right to bargain away their breaks in exchange for more desirable conditions of employment, making no attempt to explain the absence of any express language that would deny them that right. Majority at 852.

Examples of such express language can be found in other regulations promulgated by the department. For example, WAC 296-130-500 explicitly states:

Nothing in this chapter shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish leave benefits in excess of the applicable minimum under the provisions of this chapter.

(Emphasis added.)

Similarly, WAC 296-24-005 provides:

The rules included in this chapter apply throughout the state of Washington, to any and all work places under the jurisdiction of the department of labor and industries. These rules are minimum safety requirements with which all industries must comply.

(Emphasis added.)

As the above examples demonstrate, the department know's how to draft a regulation that sets minimum standards, which may not be waived by employees exercising their bargaining power. Because the department “uses certain language in one instance but different, dissimilar language in another,” we are to presume a difference in intent. Millay v. Cam, 135 Wn.2d 193, 202, 955 P.2d 791 (1998). Thus, the majority’s conclusion that WAC 296-126--092 creates nonnegotiable rights has no legal basis.

Even if the department had intended to grant a nonwaivable right—and there is no evidence that it did— the creation of such a right would have exceeded the department’s authority under the Enabling Act. See, e.g., State v. Munson, 23 Wn. App. 522, 525, 597 P.2d 440 (1979). The Washington Industrial Welfare Act, chapter 49.12 RCW, provides that:

the director shall have authority... to prescribe rules and regulations fixing standards, conditions and hours of labor for the protection of the safety, health and welfare of employees for all or specified occupations subject to chapter 16, Laws of 1973 2nd ex. sess.

RCW 49.12.091. Nevertheless, the Legislature limited the authority of the department to promulgate regulations, barring those that would:

interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages or standards or conditions of employment.

RCW 49.12.187 (emphasis added).

The majority recognizes that its interpretation of WAC 296-126-092 facially conflicts with RCW 49.12.187. Majority at 851-52. Astonishingly, it interprets this provision not as a limitation on the authority of the department to promulgate regulations, but rather as a limitation on the right of employees to collective bargaining. Id.

The majority reaches its wayward conclusion by rendering the plain language of RCW 49.12.187 ambiguous and then heedlessly adopting the interpretation of one of the parties without first evaluating the reasonableness of both parties’ competing interpretations. By law a statute is ambiguous only:

if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations aire conceivable. The courts are not “obliged to discern an ambiguity by imagining a variety of alternative interpretations.”

Berger v. Sonneland, 144 Wn.2d 91, 105, 26 P.3d 257 (2001) (emphasis added) (footnote omitted) (quoting W. Telepage, Inc. v. City of Tacoma, 140 Wn.2d 599, 609, 998 P.2d 884 (2000)). The majority decision makes light of this requirement by simply summarizing the parties’ interpretations and concluding that in light of their differences the statute must be ambiguous. Majority at 851-85. This is error. Berger, 144 Wn.2d at 105; see also Armstrong v. Safeco Ins. Co., 111 Wn.2d 784, 791, 765 P.2d 276 (1988) (ambiguity is not found “solely upon each party’s ability to argue a distinct interpretation of the statute”); State v. Taplin, 55 Wn. App. 668, 670, 779 P.2d 1151 (1989) (“The parties’ ability to argue two interpretations of a statute does not necessarily render the statute ambiguous.”).

The employees’ interpretation of RCW 49.12.187, which the majority has adopted as its own, is not only unreasonable, it is discordant. The avowed purpose of the Washington Industrial Welfare Act, chapter 49.12 RCW, is to protect Washington workers “from conditions of labor which have a pernicious effect on their health.” RCW 49.12.010. The act provides for the regulation of “any occupation, trade or industry, subject to chapter 16, Laws of 1973 2nd ex. sess.” RCW 49.12.091. The various sections of the act either proscribe the procedures by which the department is to administer and enforce its regulations, see, e.g., RCW 49-.12.050 (employers required to keep records of employees); RCW 49.12.101 (hearings); RCW 49.12.105 (requests for variances), or provide substantive rights to employees, see, e.g., RCW 49.12.150 (civil action to recover underpayment); RCW 49.12.175 (penalties for wage discrimination based on gender); RCW 49.12.270 (right to use accrued sick leave to care for sick child). Given the structure of the statute, it is simply incongruous to interpret RCW 49.12.187 as a limitation on the rights of employees.

I would find RCW 49.12.187 sufficiently definite as to preclude any statutory construction. As this court has repeatedly stated:

“Courts should assume the Legislature means exactly what it says.” Plain words do not require construction. The courts do not engage in statutory interpretation of a statute that is unambiguous. If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself.

Berger, 144 Wn.2d at 105 (footnotes omitted) (quoting W. Telepage, 140 Wn.2d at 609). Indeed, it is hard to imagine how the Legislature could have expressed its intent more clearly. Nevertheless, the majority makes no attempt to account for the absence of language evidencing the intent it ascribes to the Legislature.

Such language is present, for example, in the Washington Family Leave Act, chapter 49.78 RCW, which authorized the promulgation of the above cited WAC 296-130-500 (“Nothing in this chapter shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish leave benefits in excess of the applicable minimum under the provisions of this chapter.”).² This regulation accords with RCW 49.78.110, which states that employees’ rights under the act “may not be diminished by any collective bargaining agreement.” RCW 49.78.110(2).

Similarly, the Washington Industrial Safety and Health Act, chapter 49.17 RCW, explicitly provides that all provisions in collective bargaining agreements must “equal or exceed those established under the authority of this chapter.” RCW 49.17.100.³ WAC 296-24-005, cited above, accords with the statute, stating the department’s regulations under the act create “minimum safety requirements.”

Thus it is clear our Legislature understands how to enact nonnegotiable labor standards when it so desires. “It is well settled that where the Legislature uses certain language in one instance but different, dissimilar language in another, a difference in legislative intent is presumed.” Millay, 135 Wn.2d at 202. Had our Legislature intended to grant the department the authority to create nonnegotiable rights, as the majority contends, it would have included language similar to the statutes cited above. As we stated in Millay,

Courts do not amend statutes by judicial construction, nor rewrite statutes “to avoid difficulties in construing and applying them.” This court refrains from adding to, or subtracting from, the language of a statute unless imperatively required to make it rational.

Millay, 135 Wn.2d at 203 (citations omitted) (quoting Applied Indus. Materials Corp. v. Melton, 74 Wn. App. 73, 79, 872 P.2d 87 (1994)). Where, as here, the Legislature withholds authority from the department, the court should not construe the statute to provide the department with powers that the Legislature has declined to grant. However, this is precisely what the majority does.

For these reasons, I would affirm the trial court’s dismissal and therefore dissent.

Johnson, J., concurs with Sanders, J.

Reconsideration denied September 20, 2002.

2 The text of this regulation is virtually the same as RCW 49.12.187 except that it adds the clause, “in excess of the applicable minimum.”

3 I note the Industrial Safety and Health Act, which contains language expressly authorizing the department to set minimum standards, was enacted during the same year as RCW 49.12.187. This reinforces my belief the absence of such language is intentional.