(concurring in part; dissenting in part) — I dissent to that portion of the majority opinion which affirms the trial court's order in the Spokane Community College case. I agree with the majority's position that the Higher Education Personnel Board (HEPB) is empowered to award attorneys' fees in unfair labor practice actions and would uphold the awards in both of these cases.
*73This court has repeatedly held that it will not interfere with a decision of an administrative agency absent arbitrary and capricious or clearly erroneous action. In re Case E-368, 65 Wn.2d 22, 395 P.2d 503 (1964); Portage Bay-Roanoke Park Community Council v. Shorelines Hearings Bd., 92 Wn.2d 1, 8, 593 P.2d 151 (1979). The action of the HEPB was neither.
The reasons given by the majority for upholding the trial court in the Spokane Community College case are that (1) the "College took the position that article 4 of the agreement violated Const, art. 8, § 5 in granting paid leave time for certain employees to engage in specified union activities"; (2) "Only if [the above] defense can be characterized as frivolous or meritless should litigation expenses be considered as part of the remedial order"; and (3) "In this instance, we cannot characterize College's defense as without merit", but as rather "honestly debatable".
But the issue before us is not the merit of the "honest debate" as to the constitutionality of an article of the union contract or whether the defense of the position of the College was frivolous or without merit. Rather, the issue is whether the district engaged in an unfair labor practice. It may be there was an "honest debate" as to the constitutionality of certain provisions of the collective bargaining agreements. But the way for the district to resolve the "honest debate” was not by a refusal to bargain in good faith. As the HEPB found in Case No. 9:
If, for any reason, the College, through its Board, found itself unable to ratify the negotiated contract, it was under an official obligation to seek a reopening of negotiations for the purpose of finding a basis for mutual agreement. Its failure to do so does violence to the mutual obligation to confer and bargain in good faith and, for this reason, constitutes an unfair labor practice.
(italics mine) and in Case No. 12:
Article XVII of the agreement requires that declaratory relief be sought from an appropriate forum prior to *74assertion of the invalidity of one of the clauses in the agreement as a defense to its enforcement.
(Italics mine.)
The HEPB found in both cases that the action of the district constituted an unfair labor practice. If, as here, the remedy fashioned by the administrative board is consistent with its authority, a party to a collective bargaining negotiation should not be able to avoid the consequences of engaging in unfair labor practices simply by stating that it was acting on advice of counsel and there was an "honest debate" as to the validity of a portion of the negotiated contract. This escape hatch is nowhere found or contemplated in the Public Employees' Collective Bargaining Act, RCW 41.56. See particularly RCW 41.56.140-150. To adopt the position of the majority is to strike at the heart of the collective bargaining process.
I find no abuse of the HEPB discretion in the award of attorneys' fees in the Spokane Community College case and would reverse the trial court's dismissal of the action by the union to enforce that award.
Rosellini and Brachtenbach, JJ., concur with Dolliver, J.