Shoreline Community College District No. 7 v. Employment Security Department

Worswick, J.

(dissenting)—I would reverse the award of benefits. Contrary to the majority's assertion, the formula for determining "hours allowed" is related to wages, hours, or other terms and conditions of employment. It is, therefore, a proper subject for collective bargaining under RCW *7428B.52.020(8). A decision that this freely negotiated formula is not now binding on Pelto erodes the integrity of collective bargaining.

RCW 28B.52.020(8), defining collective bargaining for academic personnel in community colleges, states in part:

"Collective bargaining" and "bargaining" mean the performance of the mutual obligation of the representatives of the employer and the exclusive bargaining representative to meet at reasonable times to bargain in good faith in an effort to reach agreement with respect to wages, hours, and other terms and conditions of employment, such as procedures related to nonretention, dismissal, denial of tenure, and reduction in force.

(Italics mine.) By its very terms, the "hours allowed" formula relates to hours of employment. Because of the formula, the college did not keep, or require faculty members to keep, records of the actual hours worked. This accommodation benefited both parties: the college was spared the burden of keeping tabs on faculty, and the faculty had maximum flexibility fulfilling its duties to the students and the college. The formula served to quantify faculty performance without formal records or time clocks. That the formula might not be used until an instructor applied for unemployment benefits did not make it unrelated to "hours" in a situation such as Pelto's; precisely the contrary is true.

Computation of hours is one of the "procedures related to nonretention [and] dismissal". (Italics mine.) RCW 28B.52.020(8). If a statute fails to define a term, the term is given its ordinary meaning. Davis v. Department of Empl. Sec., 108 Wn.2d 272, 277, 737 P.2d 1262 (1987). "Related" means "having relationship : connected by reason of an established or discoverable relation". Webster's Third New International Dictionary 1916 (1986). An application for unemployment compensation is a "procedure related to nonretention," and a formula* that comes into play when nonretention occurs is "related" to that procedure.

Even the Department's regulation defining what hours should be reported on quarterly wage reports supports the *75propriety of the formula used here. RCW 50.12.070 requires employers to report "the hours worked by each worker." WAC 192-16-002(4) further defines "hours worked":

Employees on salary. If a salaried employee works irregular nonstandard weeks, he or she shall be reported for the actual number of hours worked. In the absence of reliable time figures, a full-time salaried employee will be reported for 40 hours worked for each week in which any of his or her duties are performed.

(Italics mine.) Far from requiring that employers report precise numbers of hours worked in every instance, this regulation anticipates that there will be situations, such as Pelto's, in which detailed records are not kept. An alternative can then be used to determine the number of hours worked. The formula agreed on by the union and the college in this case is an alternative within the spirit of the regulation.

The majority argues that use of this formula to resolve unemployment compensation claims will "invite inequitable and inconsistent administration of the State's unemployment benefits programs." Majority, at 73. Just the opposite is true. Such a formula, negotiated through collective bargaining, applies equally to similarly situated workers. Inconsistent and inequitable results will be reached when, as here, an individual can override the negotiated formula by testifying that he actually worked a different number of hours.

The formula is binding on Pelto because it was a proper subject of collective bargaining and was freely negotiated by the union and the college. In re Employees of Buffelen Lumber & Mfg. Co., 32 Wn.2d 205, 201 P.2d 194 (1948); Antinore v. State, 49 A.D.2d 6, 371 N.Y.S.2d 213 (1975), aff'd, 40 N.Y.2d 921, 358 N.E.2d 268, 389 N.Y.S.2d 576 (1976). In Buffelen, our Supreme Court determined that a union-negotiated vacation agreement was binding on the claimant union members so that they were "voluntarily unemployed" during a plantwide vacation closure.

In Antinore, the reviewing court determined that the terms of a valid collective bargaining agreement bind a *76public employee even when the employee disapproves of the agreement negotiated by his representative, Antinore, at 10-11 (provision for binding arbitration in disciplinary proceedings for civil service employees held valid; because of provision negotiated by employee's collective bargaining agent, employee waived due process and equal protection rights). As the Antinore court stated:

The fact that this plaintiff did not himself approve the agreement negotiated by his representative and now disclaims satisfaction with one aspect of the agreement makes it no less binding upon him. Labor relations involving any sizeable group cannot be expected to proceed only with the consent of each member of the group. Orderly process requires that agreements be made and complied with even in the face of minority dissent or disapproval.

Antinore, at 10-11. Like the plaintiff in Antinore, Pelto wants to exempt himself from a valid provision of a duly negotiated collective bargaining agreement. He should not be allowed to do so. I dissent.

Review granted at 116 Wn.2d 1001 (1991).