(dissenting)—I respectfully dissent because of my firm conviction that a mistake has been committed and that the PERC decision was clearly erroneous in view of the entire record and the public policy contained in the Public Employees' Collective Bargaining Act, RCW 41.56.
Although the majority purports to embrace the correct clearly erroneous standard, it proceeds, nevertheless, to reverse the trial court and affirm the Board on what only charitably can be described as "substantial evidence". In my opinion, the evidence is hardly more than a "scintilla", and falls far short of supporting a conclusion that Clallam County acted in retaliation for Baker's resort to "protected activities" to secure his ends.
PERC determined that Clallam County committed an unfair labor practice when it fired Baker because the latter relied on the union contract in an attempt to extort additional employee benefits from the County—double vacation pay. The only evidence to support this conclusion is Lin-nell's unfortunate and ill-advised remark to the County Commissioners. As noted by the majority, this was not fac*603tually correct—it was the County that sought union intervention and interpretation of the contract. The majority also overlooks the fact that Linnell clarified this statement in his actual testimony before the Board, thus rendering his prior—perhaps inconsistent—statement of little value except for impeachment purposes.
Conceding arguendo that Linnell's prior statement, even when so viewed, made a prima facie case for Baker under the Wright Line case, as adopted by Washington Pub. Employees Ass'n v. Community College Dist. 9, 31 Wn. App. 203, 642 P.2d 1248 (1982), thus placing a burden on the County to come forward with its evidence, Wright Line, 251 N.L.R.B. 1083, 105 L.R.R.M. 1169 (1980), I believe the County satisfied that burden with its showing it did not in fact fire him for resorting to rights guaranteed by the union-negotiated contract.
I have no quarrel with the majority's definition of protected rights under RCW 41.56.140, nor with the conclusion that pursuing, although informally, the grievance procedures as defined in the labor agreement is a protected activity. However, when one considers the "entire record as submitted and the public policy contained in [RCW 41.56-.140]," the inevitable conclusion is that Clallam County was not motivated by a desire to penalize Baker for resorting to his "protected rights". PERC's finding to the contrary is extremely suspect in light of its determination that the County's real or true motivation for terminating Baker was "antiunion animus".11 As noted by the trial court, there is absolutely no evidence of such ill will or animus. In my view this totally unsupported finding permeates and taints all of PERC's ultimate determinations. Consequently, PERC's actions were clearly erroneous.
As noted, Clallam County itself enlisted the union's *604counsel to resolve Baker's attempt to extort extra vacation pay from the County by his gross misinterpretation of the union contract. It was the substance of this request and not the fact he relied on the union contract that caused his employer to be upset. Baker's aggressive and contentious "sea lawyer” attitude stands out in the record and would have tested the patience of Job. Had it not been for a shortage in manpower, his insubordination clearly would have led to dismissal. It stretches credulity to find that he was dismissed because the union had a contract and Baker was merely exercising his rights to engage in "protected activities" as such.
While it is true, as the majority says at page 600, that ”[s] imply because 'there was credible evidence contrary to the tribunal's findings, the findings are not "clearly erroneous'"", citing Franklin Cy. Sheriffs Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983), the reverse proposition is not true, i.e., that "simply because there is credible evidence to support the Board's finding, the findings are not clearly erroneous." This is merely another way of stating the substantial evidence rule, a lesser standard of review—a standard to which we are not bound.
In conclusion, although there may have been some evidence to support the Board's conclusion, after examining the entire record and considering the policy of the act in question, I am left with a definite and firm conviction that a mistake has been committed. Ancheta v. Daly, 77 Wn.2d 255, 461 P.2d 531 (1969). I would affirm the trial court's order reversing the Board.
Reconsideration denied May 30, 1986.
Review denied by Supreme Court September 2, 1986.
Contrary to the majority's opinion that this is a conclusion of law, I believe it is a finding of fact. Because it finds that the "true'' motivation was union animus, and there is absolutely no evidence to support that finding, PERC's determination should not stand.