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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

WASHINGTON STATE DEPARTMENT OF                                   No.  41225-0-II
TRANSPORTATION, FERRIES DIVISION,

                             Petitioner,

       v.

MARINE EMPLOYEES COMMISSION and                             PUBLISHED OPINION
MARINE ENGINEERS BENEFICIAL 
ASSOCIATION,

                             Respondents.

       Quinn-Brintnall, J.   --     On July 24, 2009, a Marine Employees' Commission (MEC) 

arbitrator issued a decision settling a long-standing grievance between the Washington State 

Ferries Division of the Department of Transportation (DOT) and the Marine Engineers' Beneficial 

Association (MEBA), a union representing certain ferry system employees.  As part of the 

decision, the arbitrator ordered the DOT to pay MEBA's attorney fees.  The DOT petitioned the 

MEC to reconsider that specific portion of the award, contending that the parties' 

No. 41225-0-II

collective bargaining agreement (CBA)1 forbade awarding attorney fees; the MEC refused 

reconsideration.  The DOT then petitioned Thurston County Superior Court to review the 

arbitrator's decision, again contending that the parties' CBA prohibited an attorney fees award.  

The superior court upheld the arbitrator's award.  The DOT now submits a petition for common 

law writ of certiorari and review to this court asserting, again, that the parties' CBA does not 

allow for granting attorney fees.  Although Washington courts follow federal law in allowing 

attorney fees when a party to arbitration commits an unfair labor practice, MEBA has never 

followed the requirements for filing such a complaint as dictated by WAC 316-45-010 through 

-050.  Accordingly, we hold that the MEC arbitrator acted ultra vires in awarding attorney fees in 

this grievance arbitration, and we vacate paragraph five of the arbitrator's decision, the attorney 

fees award.

                                            FACTS

       On August 11, 2004, several MEBA members, in their individual capacities, filed a class 

action lawsuit in Pierce County Superior Court seeking wages for time they spent performing 

"watch turnover" before or after their assigned shifts.  MEBA did not participate in this litigation.  

"Watch turnover"    involves the outbound crew of a seaward vessel briefly meeting with 

crewmembers they are  relieving to receive information about the condition of the boat, any 

problems to be aware of, etc.  Their employer, the DOT, argued that watch turnover, even 

outside regularly scheduled shifts, was noncompensable standard practice in the maritime industry 

1 This case technically involves two separate sets of employees (licensed engineer officers and 
unlicensed engine room employees) and, thus, two separate CBAs.  Both CBAs have identical 
provisions requiring arbitration for grievances and identical provisions instructing each party to 
bear their own costs during the grievance arbitration process.  For the sake of clarity, we refer to 
a single CBA.

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No. 41225-0-II

and that the parties never discussed or bargained for watch turnover payment in their CBA.  The 

superior court disagreed, awarding a judgment to the employees.  

       The DOT appealed the decision to this court.  In Davis v. Department of Transportation, 

138 Wn. App. 811, 826, 159 P.3d 427 (2007) (Davis I), review denied, 163 Wn.2d 1019 (2008),

we  determined the CBA required arbitration, reversed the superior court's decision,         and 

remanded the case for entry of a judgment in favor of the DOT.  Although we held that arbitration 

was the appropriate forum for CBA disputes, we further stated, "[W]atch changes are a regular, 

essential, and required work activity for which the State must compensate under the CBA.  And 

whether watch changes are work or whether watch changes must be compensated is not an issue 

for future grievance or arbitration."  Davis I, 138 Wn. App. at 825-26.  Our Supreme Court 

denied review of that decision.  Davis, 163 Wn.2d 1019. 

       On June 8, 2007, MEBA filed grievances on behalf of its members explicitly referencing 

our decision in Davis I.  On March 14, 2008, having exhausted the CBA's grievance procedures,

MEBA requested grievance arbitration before the MEC.2      The grievance hearing took place on 

April 3, 2009.  MEBA argued that the arbitrator, having no authority "to disregard, [or] overrule 

the opinion of the Court of Appeals," needed only to determine how much back pay the DOT 

owed and provided the arbitrator with data to make that determination.  Administrative Record 

2 Former  RCW 47.64.280(2)(a) (2006)  vested the MEC with the power to "[a]djust all 
complaints, grievances, and disputes between labor and management arising out of the operation 
of the ferry system." On July 1, 2011, administration of chapter 47.64 RCW transferred from the 
MEC to the Public Employment Relations Commission (PERC).  Laws of 2011, Spec. Sess., ch. 
16, §§ 19, 31.  The legislature further mandated that PERC rules of procedure shall apply to 
future proceedings under chapter 47.64 RCW and repealed Title 316 WAC.  The arbitration that 
led to this appeal occurred in 2009, however, so we address it under the then applicable RCW and 
WAC provisions.   

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No. 41225-0-II

(AR) at 130.  The DOT, however, asked the MEC to decide whether the CBA required additional 

overtime compensation for watch turnover, arguing that the Davis  I  decision was either (a) 

contrary to established law; or (b) our "pronouncements that watch turnover constitutes overtime 

under the CBA" were "dicta" and, as a result, the substantive issue of whether watch changes 

were compensable work under the CBA still needed to be determined.  AR at 51.  To that end, 

the DOT provided no data to assist the arbitrator in calculating the amount of back pay owed to 

MEBA's members.  

       On July 24, the arbitrator issued its decision, noting that 

              [t]he State's argument that presupposes the [Washington State Appellate] 
       Court improperly ruled in this matter is not a matter before the [MEC].  However, 
       the Court properly concluded that the contract requires watch turnover pay is 
       owed to engine room employees at [the DOT]. 
              Decisions of the MEC are subject to appeal and modification by the 
       Courts.  It is well understood that the MEC has no authority to hear an appeal or 
       overrule decisions of the Courts.  While the MEC shares the concerns of the 
       [DOT] about the intervention of the Court into the collective-bargaining process, 
       the [DOT] ignored the directive of the Court at its peril.  Thus, when the Court 
       determined watch changeover to be work and deferred the matter back to the 
       grievance procedure, the [DOT] should have begun a method of record keeping to 
       track the amount of time worked by employees.  It failed to do so.  It failed to take 
       any position on remedy. 

AR at 86-87.  The arbitrator also instructed the DOT to "reimburse the MEBA for attorney fees 

incurred in bringing this grievance before the MEC." AR at 87.  

       On August 12, the DOT petitioned the  MEC for reconsideration of the attorney fee 

award, contending that it violated the parties' CBA.  MEBA responded that the "Arbitrator's 

Award is final, binding, virtually unappealable, and not subject to reconsideration," an inevitable 

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No. 41225-0-II

conclusion based on the "widely-accepted doctrine of functus officio."3 AR at 98.  On September 

8, the MEC issued its order denying DOT's petition for reconsideration of attorney fees, explicitly 

stating, 

              The Arbitrator acted appropriately and within his contractual authority and 
       obligations.  The Employer was on notice from the Court of Appeals that payment 
       for watch changeover was a contractual obligation of [the DOT].  The Arbitrator 
       was put on notice by the Court that [the DOT] and the State were aware that the 
       Courts have spoken twice and the very language of the Court of Appeals' remand 
       was convincing and compelling.
          We emphasize that watch changes are a regular, essential and required 
          work activity for which the State must compensate under the CBA and 
          whether watch changes are work or whether watch changes must be 
          compensated is not an issue for future grievance or arbitration.  
       (Emphasis added.)  It is only reasonable to assume that learned and esteemed 
       counsel exhaustively argued and presented the same rationale and advocacy to the 
       Courts that was advanced to the Arbitrator.
              Upon receipt of the Court of Appeals' findings, [the DOT] had every 
       opportunity to work with the Union to pursue an appropriate remedy short of 
       requiring the MEBA to present their members' case to an arbitrator and require 
       additional attorney's fees, in spite of the direction of the Courts.  

AR at 102-03.  

       Following this decision, the DOT submitted a petition for common law writ of certiorari 

and review of arbitration decision to Thurston County Superior Court.  On August 27, 2010, the 

superior court affirmed the MEC decision and dismissed the DOT's petition with prejudice.  The 

DOT now timely appeals, requesting specifically that we vacate  the arbitrator's  attorney fees 

award.  

3 4 Am. Jur. 2d, Alternative Dispute Resolution § 151 (2011), explains, 
              When an arbitral board renders a final award, its powers and duties under 
       the submission are terminated or exhausted.  The common-law doctrine of functus 
       officio provides that, once an arbitrator has issued a final award, having fulfilled his 
       or her function, he or she is without authority to . . . reexamine the final award. 
(Citations omitted.)

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No. 41225-0-II

                                         DISCUSSION

       The DOT maintains that the CBA's terms are clear and that the MEC had no authority to

award attorney fees in grievance arbitration under any circumstances.  Because the arbitrator 

acted outside his authority by sua sponte treating this grievance arbitration as an unfair labor 

practice dispute, and Washington courts have only upheld a labor arbitrator's attorney fees award 

when unfair labor practices are at issue, we vacate section five of the MEC's award.

Standard of Review

       The CBA provisions at issue here do not specifically provide for judicial review of an 

arbitrator's decision.  The CBA dictates that, in the event of grievance arbitration, the aggrieved 

party "will notify the other party of [the grievance] and will refer the dispute to the [MEC] for a 

final resolution." AR at 275, 294.  The MEC adopted rules of procedure pursuant to the 

authority granted it by the legislature in former RCW 47.64.280(3)(c) (2006) ("[t]he commission 

shall adopt rules of procedure under chapter 34.05 RCW").  The MEC codified these rules in 

chapter 316-65 WAC.4    Like the CBA, however, the rules are silent as to judicial review apart 

from mentioning, in the last provision of the chapter, that "[n]othing in chapter 316-65 WAC is 

intended to diminish the constitutional rights of any person or to limit or modify additional 

requirements imposed by statute, including the Administrative Procedure Act."      WAC 316-65-

600.  

       As we have stated in a similar context, where "such a 'statutory and contractual hiatus'

exists, judicial review is nevertheless available by petitioning the superior court for a constitutional 

writ of certiorari."  Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 93 Wn. App. 350, 353, 967 

4 The parties do not challenge the validity of the WACs. 

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No. 41225-0-II

P.2d 1270 (1998) (quoting Grays Harbor County v. Williamson, 96 Wn.2d 147, 150-53, 634 

P.2d 296 (1981)), rev'd on other grounds, 139 Wn.2d 840, 850, 991 P.2d 1161 (2000).  Article 

IV, section 6 of the Washington State Constitution provides, in relevant part, that 

       [t]he superior court shall . . . have original jurisdiction in all cases and of all 
       proceedings in which jurisdiction shall not have been by law vested exclusively in 
       some other court. . . .  Said courts and their judges shall have power to issue writs 
       of . . . certiorari.

The present case comes before this court pursuant to this jurisdiction.5  

       Review of an arbitration decision under a constitutional writ of certiorari is "limited to 

whether the arbitrator acted illegally by exceeding his or her authority under the contract."  Clark 

County Pub. Util. Dist. No. 1 v. Int'l Bhd. of Elec. Workers, 150 Wn.2d 237, 245, 76 P.3d 248 

(2003) (Clark County PUD).  When reviewing arbitration decisions under this "extremely limited"

standard of review, we do not reach the merits of the case.  Clark County PUD, 150 Wn.2d at 

245.  Instead, we determine only whether the arbitrator acted outside his authority under the CBA 

in awarding attorney fees to MEBA.  If so, the arbitrator's actions are ultra vires and the award is 

illegal.  See Clark County PUD, 150 Wn.2d at 247.  But so long as the arbitrator is even arguably 

construing or applying the contract and acting within the scope of his authority, the fact that we 

are convinced he committed serious error does not suffice to overturn his decision.  E. Associated 

Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62, 121 S. Ct. 462, 148 L. Ed. 

5 The Administrative Procedure Act (APA), chapter 34.05 RCW, like the CBA, RCW, and WAC 
relevant to this case, is similarly silent as to judicial review of an arbitrator's final decision.  RCW 
34.05.526 proclaims, "An aggrieved party may secure appellate review of any final judgment of 
the superior court under this chapter by . . . the court of appeals.  The review shall be secured in 
the manner provided by law for review of superior court decisions in other civil cases." Because 
case law holds that it is appropriate for superior courts to address similar labor disputes through 
issuance of writs of certiorari, see Wilkinson, 93 Wn. App. at 353, it is appropriate for appellate 
courts (per the APA in this instance) also to engage in such review. 

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No. 41225-0-II

2d 354 (2000).  Thus, courts do not vacate binding arbitration awards except in very limited 

circumstances.  Clark County PUD, 150 Wn.2d at 247.  Whether the arbitrator acted outside his 

authority involves addressing a question of law and, as such, our review is de novo.  Kitsap 

County Deputy Sheriff's Guild v. Kitsap County, 167 Wn.2d 428, 434, 219 P.3d 675 (2009).  

MEC Authority to Award Attorney Fees

       The United States Supreme Court has held that an arbitrator must confine his or her 

decision or award to interpretation and application of the parties' CBA.  The Court has stated, for 

instance, 

              When an arbitrator is commissioned to interpret and apply the collective 
       bargaining agreement, he is to bring his informed judgment to bear in order to 
       reach a fair solution of a problem.  This is especially true when it comes to 
       formulating remedies.  There the need is for flexibility in meeting a wide variety of 
       situations.  The draftsmen may never have thought of what specific remedy should 
       be awarded to meet a particular contingency.  Nevertheless, an arbitrator is 
       confined to interpretation and application of the collective bargaining agreement; 
       he does not sit to dispense his own brand of industrial justice.  He may of course 
       look for guidance from many sources, yet his award is legitimate only so long as it 
       draws its essence from the collective bargaining agreement.  When the arbitrator's 
       words manifest an infidelity to this obligation, courts have no choice but to refuse 
       enforcement of the award.

United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 4 

L. Ed. 2d 1424 (1960).  Washington courts consistently follow this standard.  See Clark County 

PUD, 150 Wn.2d at 247 ("[A]n arbitrator's award is illegal if it exceeds the authority granted to 

the arbitrator by the parties' contract, here the CBA."); see also City of Yakima v. Yakima Police 

Patrolman's Ass'n, 148 Wn. App. 186, 195, 199 P.3d 484 (2009) ("While an arbitrator's view of 

the issues submitted to him receives great deference by the courts, an arbitrator is confined to the 

interpretation and application of the parties' agreement."). 

                                               8 

No. 41225-0-II

       The CBA between the DOT and MEBA is explicit in relation to attorney fees stating, "All 

costs, fees and expenses charged by the arbitrator will be shared equally by the [parties].  All 

other costs incurred by a party resulting from an arbitration hearing will be paid by the party 

incurring them."  AR at 275, 295.  The MEC's grievance arbitration rules further provide that 

"[e]ach party shall pay the expenses of presenting its own case."  WAC 316-65-150.  Last, the 

legislature has provided that

       [n]egotiated procedures may provide for binding arbitration of ferry employee 
       grievances and of disputes over the interpretation and application of existing 
       agreements.  An arbitrator's decision on a grievance shall not change or amend the 
       terms, conditions, or applications of the collective bargaining agreement. . . . The 
       costs of arbitrators shall be shared equally by the parties.  

RCW 47.64.150.  Whether, despite the clear language in the CBA, WAC, and RCW, an MEC 

arbitrator may grant attorney fees6 as part of a grievance arbitration is an issue of first impression.

       A.     Attorney Fees for Unfair Labor Practices

       Washington courts have upheld an arbitrator's attorney fees award when a disputant 

alleges an unfair labor practice.  In State ex. rel. Washington Federation of State Employees, AFL-

CIO v. Board of Trustees of Central Washington University, 93 Wn.2d 60, 605 P.2d 1252 

(1980), our Supreme Court addressed whether the Higher Education Personnel Board (HEPB) 

had authority, pursuant to RCW 41.56.160, an unfair labor practices provision, to award attorney 

fees as part of an arbitration award.  The court concluded that 

       the legislature has "empowered and directed" the HEPB to prevent unfair labor 
       practices.  We believe "remedial" action encompasses the power to award attorney 

6 MEBA argued at the grievance arbitration that it was entitled to double damages and attorney 
fees pursuant to RCW 49.52.050(2), a wage recovery statute.  In Hitter v. Bellevue School 
District No. 405, 66 Wn. App. 391, 397-98, 832 P.2d 130, review denied, 120 Wn.2d 1013 
(1992), Division One of this court, however, clearly held that statutory rights to attorney fees can 
be bargained away in a CBA.  We see no reason to disagree with this determination.  

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No. 41225-0-II

       fees under appropriate circumstances.  We hold that RCW 41.56.160 is broad 
       enough to permit a remedial order containing an award of litigation expenses when 
       that is necessary to make the order effective.  Such an allowance is not automatic, 
       but should be reserved for cases in which a defense to the unfair labor practice 
       charge can be characterized as frivolous or meritless. . . .  Awards should not be 
       permitted routinely, simply because the charging party prevails.     

Fed'n of State Emps., AFL-CIO, 93 Wn.2d at 69 (emphasis added).7      In a later HEPB case, our

Supreme Court again upheld an arbitrator's attorney fees award in an unfair labor practice case 

noting,  "[t]he remedy is proper to curtail the college's arbitrary behavior and to prevent its 

reoccurrence, and is necessary to make the order to negotiate in good faith at reasonable times 

effective."  Green River Cmty. Coll., Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 

442, 730 P.2d 653 (1986).  Similarly,  we have held that the Public Employment Relations 

Commission (PERC) has the authority to award attorney fees in disputes over unfair labor 

practices.  Lewis County v. Pub. Emp't Relations Comm'n, 31 Wn. App. 853, 866-67, 644 P.2d 

1231, review denied, 97 Wn.2d 1034 (1982).  

       Federal law also provides guidance.  See Clark County PUD, 150 Wn.2d at 246 n.7 ("Our 

state courts have often looked to federal case law for guidance in analyzing labor disputes.").  

Here, former RCW 47.64.130 (2006), addressing unfair labor practices, is substantially similar to 

29 U.S.C. § 158 of the National Labor Relations Act (NLRA).  Both state that it is an unfair labor 

practice of an employer organization to "refuse to bargain collectively with the representatives" of 

its employees.  29 U.S.C. § 158(a)(5); former RCW 47.64.130(1)(e).  

7 The court also explicitly stated that, "[u]nder the general rule followed in this state, recovery of 
attorney fees is permitted 'only when authorized by a private agreement of the parties, a statute, 
or a recognized ground of equity.'"  Fed'n of State Emps., AFL-CIO, 93 Wn.2d at 67 (quoting
Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 176, 570 P.2d 428 (1977)).  This is the so-called 
"American rule" for attorney fees in arbitration. 

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No. 41225-0-II

       In International Union of Electrical, Radio & Machine Workers v. N.L.R.B., 138 U.S. 

App. D.C. 249, 426 F.2d 1243 (D.C. Cir.), cert. denied, 400 U.S. 950 (1970), the D.C. Circuit 

held that section 160(c) of the NLRA authorized the National Labor Relations Board (NLRB) to 

award litigation expenses and remanded the case to the NLRB for that determination.  Int'l Union 

of Elec., Radio & Mach. Workers, 138 U.S. App. D.C. at 259 n.15 ("The scope of the Board's 

consideration on remand, if it is deemed that the Union's proposal goes too far, would include 

consideration of such lesser, alternative remedies as an award to the Union for excess 

organization costs caused by the Company's behavior, or for the costs of having to litigate a 

frivolous case, or for a combination of these.") (emphasis added).  On remand, the NLRB stated, 

              We agree with the court . . . that frivolous litigation such as this is clearly 
       unwarranted and should be kept from the nation's already crowded court dockets, 
       as well as our own.  While we do not seek to foreclose access to the Board and 
       courts for meritorious cases, we likewise do not want to encourage frivolous 
       proceedings.  The policy of the Act to insure industrial peace through collective 
       bargaining can only be effectuated when speedy access to uncrowded Board and 
       court dockets is available.  Accordingly, in order to discourage future frivolous 
       litigation, to effectuate the policies of the Act, and to serve the public interest we 
       find that it would be just and proper to order Respondent to reimburse the Board 
       and the Union for their expenses incurred in the investigation, preparation, 
       presentation, and conduct of these cases, including . . . reasonable counsel fees, 
       salaries, witness fees, transcript and record costs, printing costs, travel expenses 
       and per diem, and other reasonable costs and expenses.

Tiidee Prods., Inc. (I), 194 N.L.R.B. 1234, 1236-37 (1972).  

       Thus, both state and federal law provide persuasive support that an MEC arbitrator could 

award attorney fees when a party to collective bargaining commits an unfair labor practice by 

refusing to collectively bargain in good faith. Such is not the case here, however.

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No. 41225-0-II

       B.     Grievance Arbitration Attorney Fees

       Although our Supreme Court has held that a labor arbitrator is authorized to award 

attorney fees in unfair labor practice disputes, here the parties were engaged in grievance 

arbitration under their CBA -- an agreement explicitly providing that the parties pay their own 

attorney fees.  Accordingly, we must vacate paragraph five of the arbitrator's award granting 

attorney fees to MEBA.  

       As both parties note, this is the first time in MEC's history that an arbitrator has awarded 

attorney fees in the context of grievance arbitration.  Even assuming arguendo that the DOT's 

refusal to pay for watch changes or to keep track of money owed its employees for these duties 

constituted an unfair labor practice, following our explicit mandate to pay for such activity in our 

2007 Davis I opinion, MEBA has never explicitly argued that this was an unfair labor practice  to 

this court, the superior court, or the MEC.  The MEC adopted clear procedures for bringing 

unfair labor practice claims.  See WAC 316-45-001 through -050.  As WAC 316-45-050, entitled 

"Contents of complaint charging unfair labor practice," states, "Each complaint must contain . . . 

(4) [a] listing of the subsections of RCW 47.64.130 and/or WAC 316-45-003 alleged to have 

been violated, along with a statement of which alleged facts provide evidence of that alleged 

violation of the identified subsections."  

       Although refusal "to bargain collectively with the representatives of its employees" is an 

unfair labor practice under either former RCW 47.64.130 or WAC 316-45-003(1)(e), MEBA has 

never alleged that a refusal to bargain occurred here.  Indeed, its response at oral 

argument -- stating, in effect, that MEBA expected to attend grievance arbitration over the 

amount of back pay owed by the DOT for watch turnover -- belies its assertions that DOT's 

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No. 41225-0-II

frivolous conduct necessitated (unnecessary) grievance arbitration.8  

       We are aware that the legislature failed to define "grievance" in chapter 47.64 RCW and, 

further, that WAC 316-65-005 defines a grievance as 

       [a] formal statement alleging injury, injustice, or violation of rights granted by rule, 
       statute, collective bargaining agreement, or past practice:   Provided, That any 
       grievance involving alleged violations of rights protected by chapter 47.64 RCW 
       may also be termed "unfair labor practices" and may also be filed and processed 
       under chapter 316-45 WAC:  And Provided Further, That when the commission is 
       requested to provide grievance arbitration in a dispute where there is an unfair 
       labor practice issue brought, which in the judgment of the commission raises the 
       same or a closely related subject, and it would further the economy and efficiency 
       of  operations, the commission may consolidate such issues for hearing and 
       decision.  

(Emphasis added.)  But even if this definition conflates the fine distinction between "unfair labor 

practices" and "grievances," the only grievance MEBA alleged to the MEC was that the Davis I 

decision required the DOT to pay for watch turnover and that the MEC needed to determine the 

amount the DOT owed.  Further, WAC 316-45-020(2) expressly provides for procedures when a 

party brings both grievance and unfair labor practice issues before the MEC:

       Where an alleged violation of RCW 47.64.130, or the regulations implementing 
       that statute, is also alleged to be a violation of a collective bargaining agreement 
       and the matter is being actively pursued through the grievance and arbitration 
       procedure of the collective bargaining agreement, the commission may hold the 

8 At oral argument before this court, MEBA conceded that the DOT had the right to proceed to 
grievance arbitration:  
       The Court:  But how could it be frivolous for [the DOT] to come in and litigate 
       [the Davis I decision]?
       MEBA:  . . . They were welcome to come to arbitration . . . arbitration was going 
       to happen; what matters is what they did once they were there; they established 
       that they failed to keep any records, to document the extent of their liability under 
       the first Davis decision.  They refused to take any position with respect to the 
       amount of money owed under the first Davis decision.
Wash. Court of Appeals, oral  argument,  State Ferries Division v. Marine Employees'
Commission, No. 41225-0-II (Oct. 18, 2011), at 26 min., 30 sec.  --  27 min., 10 sec. (on file with 
the court). 

                                               13 

No. 41225-0-II

       unfair labor practice in abeyance pending the outcome of the grievance and 
       arbitration procedure.  If the commission then determines that the grievance and 
       arbitration procedure has satisfactorily resolved the entire matter or any portion of 
       it, the commission may defer to that decision and dismiss the entire unfair labor 
       practice complaint or that portion of it that has been resolved to the satisfaction of 
       the commission.  Otherwise, the commission will resume processing the unfair 
       labor practice complaint or any portion of it that has not been resolved to the 
       satisfaction of the commission. 

       Again, however, MEBA has never alleged that an unfair labor practice occurred.  Thus, 

although WAC 316-45-020(2) provides for judicial economy when both an unfair labor practice 

and a CBA grievance require attention, it does not give an MEC arbitrator authority to address as 

an unfair labor practice claims the parties did not present.  These are sophisticated parties adept at 

asserting their rights.9 We are confident that, had MEBA reason to believe the DOT was 

committing an unfair labor practice, it would have brought the matter before the MEC.  

       By refusing to comply with our Davis I decision by adjusting schedules or even keeping 

time records for the disputed watch turnovers, the DOT came to grievance arbitration unprepared 

to discuss settlement terms.  Thus, the MEC arbitrator determined the back pay calculation based 

solely on MEBA's figures.10  Although MEBA makes a compelling argument that the DOT was 

inexcusably recalcitrant in addressing shift change wages and that the sanction of awarding 

attorney fees was appropriate, the parties' CBA expressly deprives the  MEC  arbitrator  of 

authority to do this.  Further, nothing in case law or our review of applicable statutes and 

administrative rules leads us to conclude that an MEC arbitrator may sua sponte address an unfair 

9 For instance, the MEC asserts that, in January 2011, it heard 18 active disputes, "eight unfair 
labor practice complaints, one unit clarification petition, and nine grievance arbitrations."  Resp't 
MEC Br. at 6.

10 Although ignoring our Davis I decision negatively affected DOT's position on the back pay it 
owed MEBA, the arbitrator was well within his powers to determine the back pay calculation 
using only MEBA's figures.
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No. 41225-0-II

labor practice in a grievance arbitration.  Accordingly, we hold that the DOT and MEBA were 

bound to their bargained agreement and the MEC arbitrator acted ultra vires in awarding attorney 

fees in paragraph five of his award; we vacate paragraph five of the arbitrator's award.  RCW 

34.05.574(1).

                                                 QUINN-BRINTNALL, J.
We concur:

ARMSTRONG, P.J.

HUNT, J.

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