State Of Wa-office Of The Governor v. Wa Federation Of State Employees ( 2014 )

The Court ofAppeals
of the DIVISION I
RICHARD D. JOHNSON, Vtnte nfWnvhinotrm OneUnion Square
Court Administrator/Clerk *lUW %Z!fflT
oeame
60° University Street
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 if no 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 WASHINGTON-
OFFICE OF THE GOVERNOR, No. 70541-5-1
Appellant, DIVISION ONE
v.
PUBLISHED OPINION
PUBLIC EMPLOYMENT
RELATIONS COMMISSION,
Respondent,
WASHINGTON FEDERATION
OF STATE EMPLOYEES, FILED: September 22, 2014
Respondent.
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 Wash. App. 251, 258,
303 P.3d 1101 (2013) (citing Tapper v. Emp't Sec. Dep't, 122 Wash. 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 Wash. App. at 258 (citing Yakima Police Patrolmen's
Ass'nv. City of Yakima, 153 Wash. App. 541, 553, 222 P.3d 1217 (2009)).
10 RCW 34.05.570(3)(b), (d), (e).
11 Univ. of Wash., 175 Wash. App. at 258 (citing Yakima Police, 153 Wn.
App. at 552).
12 City of Federal Way v. Pub. Emp't Relations Comm'n, 93 Wash. App. 509,
512, 970 P.2d 752 (1998).
13 City of Seattle, 160 Wash. App. at 388 (citing Pasco Police Officers' Ass'n
v. Citv of Pasco, 132 Wash. 2d 450, 458, 938 P.2d 827 (1997)).
14 Citv of Vancouver v. Pub. Emp't Relations Comm'n, 107 Wash. 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 Wash. App. at 388 (quoting Renton Educ. Ass'n v.
Pub. Emp't Relations Comm'n, 101 Wash. 2d 435, 441, 680 P.2d 40 (1984)).
16 State v. Gray, 174Wn.2d920, 926, 280 P.3d 1110(2012).
17 Gray, 174 Wash. 2d at 926.
18 Lake v. Woodcreek Homeowners Ass'n, 169 Wash. 2d 516, 526, 243 P.3d
1283(2010).
19 Lake, 169 Wash. 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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