Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SNOQUALMIE POLICE                             )         No. 66033-1-I
ASSOCIATION,                                  )
                                              )         DIVISION ONE
                      Appellant,              )
                                              )
              v.                              )
                                              )
CITY OF SNOQUALMIE,                           )         PUBLISHED
                                              )
                      Respondent.             )         FILED: January 17, 2012
                                              )
                                              )

       Cox, J.  --  On review of an arbitration award that is ambiguous on its face, 
a court should remand the award for clarification by the arbitrator.1 The 

arbitration award before us in this appeal is ambiguous on its face because it 
may be read in more than one reasonable way.2 Accordingly, the trial court 

should not have grated summary judgment to either party, but should have 

remanded the matter to the arbitrator for clarification of the award.  We reverse 

       1 Tolson v. Allstate Ins. Co., 108 Wn. App. 495, 499, 32 P.3d 289 (2001); 
Hanford Atomic Metal Trades Council, et al. v. General Electric Co., 353 F.2d 
302, 307 (9th Cir. 1965); Kaanapali Golf Mgmt., Inc. v. Int'l Longshore and 
Warehouse Union, Local 142, noted at 2007 WL 1424682, *2.

       2 Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 576, 964 P.2d 1173 
(1998). 

No. 66033-1-I/2

and remand with instructions.

       The Snoqualmie Police Association, the appellant in this case, represents 

Derek Kasel, a sergeant with the Snoqualmie Police Department.  The City of 

Snoqualmie discharged him for alleged misconduct on April 17, 2007.  The 

Association challenged the discharge in accordance with the collective 

bargaining agreement between the parties, and the case went to binding 

arbitration before a single arbitrator.  

       On March 26, 2008, the arbitrator made an award based on his decision 

that Sergeant Kasel committed misconduct, but that the City did not have just 

cause to terminate him for it.  He concluded that the appropriate discipline was a 

60-day suspension, without pay, and a demotion from sergeant to police officer,

effective upon his "return to duty." He also ordered the City "to make [Sergeant

Kasel] whole for all wages and benefits lost" minus the 60-day suspension.

       Following the arbitrator's decision, the City paid back wages and benefits

at the lower police officer's wage rate, less the 60-day suspension, based on its 

view that the lower wage rate should apply. This calculation assumed that the 

60-day suspension would have commenced on the April 17, 2007, termination

date, followed by a return to duty at some time thereafter.  

       The Association disagreed.  It claimed that back pay should have been 

calculated based on a sergeant's rate of pay.  This argument is based on its 

view that Sergeant Kasel continued to hold that rank after his termination and 

was entitled to be paid at that rate until his "return to duty" following the 

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No. 66033-1-I/3

arbitration proceeding.

       Both sides pointed to different parts of the arbitrator's award to support 

these conflicting arguments.  This action followed.

       In addition to the above claim, the Association also claimed double 

damages and attorney fees against the City for alleged violation of RCW 

49.52.070.  Both parties moved for summary judgment.  The trial court granted 

the City's motion, denied the Association's request for double damages, and 

awarded it a portion of the attorney fees that it requested under RCW 49.48.030.

       The Association appeals.

                               ARBITRATION AWARD

       The Association argues that the trial court erred in entering summary 

judgment in favor of the City because the arbitration award's plain language

required summary judgment in the Association's favor.  Alternatively, it argues 

that the award was ambiguous and therefore required remand to the arbitrator 

for clarification.  We hold that the award is ambiguous as to the governing wage 

rate to be used in computing back pay.  Accordingly, we reverse and remand to 

the trial court with instructions for it to remand to the arbitrator for clarification of 

his award.

       We will affirm an order granting summary judgment if no genuine issue of 

material fact remains and the moving party is entitled to judgment as a matter of 
law.3 We review de novo summary judgment orders, taking the evidence and all 

       3 CR 56(c).

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No. 66033-1-I/4

reasonable inferences from it in the light most favorable to the nonmoving party.4

       Public policy in Washington strongly favors the finality of arbitration 
awards.5 We afford great deference to the decisions of a labor arbitrator.6

Therefore, the arbitrator is the final judge of both the facts and the law, and 
mistakes in either respect are not reviewable.7

       Here, there are no factual matters at issue for purposes of summary 

judgment.  Thus, we are faced with the legal question of whether the City was 

entitled to judgment as a matter of law.

       Where an arbitration award is ambiguous on its face, courts generally 
remand to the arbitrator for clarification.  In Tolson v. Allstate Insurance Co.,8

Tolson submitted an uninsured motorist claim to Allstate for injuries he sustained 
in a car accident.9 The claim was eventually submitted to arbitration in 

accordance with the policy's terms.10 The arbitrator awarded Tolson damages, 

       4 Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).

       5 Yakima County v. Yakima County Law Enforcement Officers Guild, 157 
Wn. App. 304, 317, 237 P.3d 316 (2010) (citing Davidson v. Hensen, 135 Wn.2d 
112, 118, 954 P.2d 1327 (1998)).

       6 Id. (citing United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 
568, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960)).

       7 Id. (citing Clark County Pub. Util. Dist. No. 1 v. Int'l Brotherhood of Elec. 
Workers, Local 125, 150 Wn.2d 237, 246, 76 P.3d 248 (2003)).

       8 108 Wn. App. 495, 32 P.3d 289 (2001).

       9 Id. at 497.

       10 Id.

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No. 66033-1-I/5

but Tolson moved to vacate the award because it did not specifically include 
damages for memory loss, which the arbitrator's letter stated he had proved.11  

Tolson claimed that the inconsistency was an error of law on the face of the 

award, demonstrating that the arbitrator had "exceeded" his powers and 
supporting Tolson's motion to vacate the award.12 The trial court denied 

Tolson's motion.13

       This court held that the letter could be read in at least two ways, and it 

was not clear from the letter's plain language which of the two possible readings 
was correct.14  Accordingly, this court reversed the trial court's denial of the 

motion to vacate and remanded with directions that the trial court seek 
clarification from the arbitrator.15

       The resolution in Tolson is consistent with persuasive authority in the 

employment law sphere.  The Ninth Circuit came to a similar conclusion in 
Hanford Atomic Metal Trades Council, et al. v. General Electric Co.16 There, the 

collective bargaining representative for certain General Electric (GE) production 

and maintenance employees in Richland, Washington, filed a grievance 

       11 Id.

       12 Id.

       13 Id. at 499.

       14 Id. at 498.

       15 Id. at 499.

       16 353 F.2d 302 (9th Cir. 1965).

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No. 66033-1-I/6

requesting back pay and restoration of vacation time.17 The grievance was 

submitted to arbitration.18 The arbitration committee awarded damages to the 

employees.19

       GE paid the employees all damages it believed were due based on the 
award.20 But, the employees interpreted the award differently and demanded 

additional compensation.21  GE refused to pay the additional amount and the 

employees filed a state court action in Washington, asserting that GE breached 

the collective bargaining agreement by refusing to comply with the arbitration 
award.22  GE removed the case to federal court.23

       At trial, each party argued that its interpretation of the award was 
correct.24 In the alternative, GE argued that, if the court found the award to be 

ambiguous, the proper remedy was to remand to the arbitration committee for 
clarification.25 The district court decided that the award was susceptible to two 

       17 Id. at 303.

       18 Id.

       19 Id. at 304.

       20 Id.

       21 Id. at 305.

       22 Id.

       23 Id.

       24 Id.

       25 Id.

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No. 66033-1-I/7

different interpretations and entered an interim judgment directing the parties to 
submit the dispute to the arbitration committee for clarification.26 The arbitration 

committee clarified the award, stating that GE fully satisfied its terms.27 The 

court then confirmed the award.28

        The employees appealed, claiming that the arbitration committee's 

original award was not ambiguous and that the district court erred in remanding 
the award to the arbitration committee for clarification.29 The Ninth Circuit 

agreed with the lower court and held that the original arbitration award was 

ambiguous and that remand to the arbitration committee was the proper 
remedy.30  The court explained:

              It is appellant's position that once the arbitrators have acted, 
       it is the duty of the court to interpret and enforce the award, rather 
       than to send the matter back to the arbitrators, to the end that the 
       further delay involved in sending the matter back can be avoided. 
       We think, however, that all of the foregoing cases accept the 
       philosophy that where the parties have elected to submit their 
       disputes to arbitration, they should be completely resolved by 
       arbitration, rather than only partially resolved.  In some cases 
       the carrying out of this philosophy will require remanding the 
       matter to the arbitrators, and we think that this is such a case.[31]

       26 Id.

       27 Id. at 306.

       28 Id.

       29 Id. at 306-07.

       30 Id. at 307 (citing United Steelworkers of Am. v. Enter. Wheel & Car 
Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960) (holding that an 
arbitration award was ambiguous and remand to the arbitrator for clarification 
was proper).

       31 Id. at 308 (emphasis added).

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No. 66033-1-I/8

       Relying on Hanford, the United States District Court of Hawaii recently 

remanded an arbitrator's award to the arbitrator for clarification in Kaanapali Golf 

Management, Inc. v. International Longshore and Warehouse Union, Local 
142.32  In that case, Anthony Vierra was terminated by Kaanapali Golf 

Management (KGM).33 The termination was arbitrated and the arbitrator's award 

ordered KGM to reinstate Vierra.34 But, after Vierra was terminated, the duties 

he had performed were transferred to a supervisor and his old position no longer 
existed.35 It was unclear whether the arbitrator was informed of this fact.36  

       KGM moved for confirmation of the arbitrator's award.37 The trial court 

found that the award was susceptible to two possible interpretations: that the 

arbitrator ordered that Vierra be reinstated to the very position that he held or 
that he be reinstated to a comparable position at KGM.38 As a result, it 

remanded the matter to the arbitrator to determine, first, whether the arbitrator 

had the authority to clarify his award, and, if he did, for clarification of the 

       32 Noted at 2007 WL 1424682.

       33 Id. at *1.

       34 Id.

       35 Id.

       36 Id.

       37 Id.

       38 Id.

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No. 66033-1-I/9

ambiguity about Vierra's reinstatement.39  

       Here, the relevant language on which both parties rely for their conflicting 

interpretations of the arbitrator's award states:

              Having reviewed all of the evidence and argument, and 
       having observed the demeanor of the witnesses during their 
       testimony, I find the City did not have just cause to summarily 
       discharge Grievant Derek Kasel from his employment with the City 
       of Snoqualmie.  The City did establish there was just cause to 
       suspend Kasel for a period of sixty (60) calendar days and to 
       reduce him in rank from Sergeant to police officer on his return to 
       duty.  The City is ordered to reinstate Grievant Kasel and to make 
       him whole for all wages and benefits lost minus the sixty (60) 
       calendar day suspension.  Grievant Kasel shall be demoted 
       from the position of Sergeant to police officer effective with 
       his return to duty.[40]

       There is more than one reasonable way to read this award. The City 

relies primarily on the past tense "was" in the first emphasized passage of the 

above quotation to justify its use of a police officer's wage rate to "make him 

whole for wages and benefits."  As the trial court in this case appears to have 

concluded, this is a reasonable reading that is designed to make the grievant 

whole for all wages and benefits lost between the time of termination, less the 60-

day suspension.

       On the other hand, the Association relies on "shall be demoted," the 

future tense of the second emphasized passage above, to justify its reading that 

no demotion in pay occurs until the grievant's "return to duty," whenever that 

occurs. This, too, is a reasonable reading, given the plain language of award.

       39 Id. at *2.

       40 Clerk's Papers at 61 (emphasis added). 

                                               9 

No. 66033-1-I/10

       The award orders Sergeant Kasel be compensated for back pay and 

wages in order to "make him whole."  Because there is more than one 

reasonable way to read this award to accomplish that objective and the award 

does not specify what wage rate governs to accomplish this purpose, the award 

is ambiguous.

       The Association argues that this "make whole" language requires use of 

the sergeant rate for the back pay calculation.  It cites Hanson v. City of 
Tacoma41 and Allstot v. Edwards42 in support of this contention.  Neither case is 

helpful in deciding whether the award in this case is ambiguous.

       In Hanson, the trial court awarded a suspended employee back pay for 

the difference in pay between his original salary and the lower salary he 
received while working on another job while suspended.43  The supreme court 

stated that the recovery of the differential in pay was not a double recovery.44

Ambiguity in that arbitration award was not at issue.

       In Allstot, a police officer was awarded back pay after he was wrongfully 
terminated.45 The issue on appeal was whether the trial court erred in refusing 

to instruct the jury that double damages were awardable.46  Ambiguity in the 

       41 105 Wn.2d 864, 719 P.2d 104 (1986).

       42 114 Wn. App. 625, 60 P.3d 601 (2002).

       43 Hanson, 105 Wn.2d at 867.

       44 Id. at 873.

       45 Allstot, 114 Wn. App. at 628-29.

       46 Id. at 629.

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No. 66033-1-I/11

arbitration award was not at issue in that case either.

       As demonstrated in Tolson, Hanford, and Kaanapali, when an arbitration 

award is ambiguous, the proper remedy is to remand the award to the arbitrator 

for clarification.  That is the proper remedy here.  The trial court erred by 

granting summary judgment to the City without first permitting the arbitrator to 

clarify the award.

       The City argues that the Association is barred from requesting that the 

dispute be remanded to the arbitrator because it requested that relief for the first 

time in its CR 59 motion for reconsideration following the summary judgment 
ruling.  Relying on Wilcox v. Lexington Eye Institute,47 the City argues that the

request for remand was not preserved for this review. We disagree.

       In Wilcox, the plaintiff sued the defendants for injuries resulting from 
LASIK eye surgery.48 The defendants moved for summary judgment, arguing 

that Washington was an improper venue, based on a forum selection clause in 
the eye surgery consent form.49 In her response, the plaintiff relied exclusively 

on the doctrine of mutual mistake to argue that the forum selection clause was 
unenforceable.50 The trial court granted the motion and the plaintiff moved for 

reconsideration arguing that the clause was also unenforceable due to fraud, 

       47 130 Wn. App. 234, 122 P.3d 729 (2005).

       48 Id. at 237.

       49 Id. at 238.

       50 Id. at 240.

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No. 66033-1-I/12

undue influence, overweening bargaining power, and lack of consideration.51

This court held that the plaintiff could not raise these new theories of law for the

first time in a motion for reconsideration because they "were based on new legal 
theories with new and different citations to the record."52

       But, this case is more analogous to August v. United States Bancorp.53  

There, the trial court dismissed on summary judgment Nick August's lawsuit 

against U.S. Bancorp for its alleged mismanagement of several family trusts and 
estates.54  The trial court also denied August's motion for reconsideration, which 

was based on a new theory of liability.55  On appeal, the bank argued that 

August could not introduce the new theory in a motion for reconsideration.56  The 

court of appeals held otherwise for two reasons.57      First, "'[i]n the context of 

summary judgment, unlike in a trial, there is no prejudice if the court considers
additional facts on reconsideration.'"58 Second, generally even after a trial an 

issue may be raised in a motion for reconsideration when it is closely related to 

       51 Id. at 240-41.

       52 Id. at 241.

       53 146 Wn. App. 328, 190 P.3d 86 (2008).

       54 Id. at 336-37, 339.

       55 Id. at 339, 346.

       56 Id. at 346.

       57 Id. at 346-47.

       58 Id. at 347 (citing Chen v. State, 86 Wn. App. 183, 192, 937 P.2d 612
(1997)).

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No. 66033-1-I/13

an issue previously raised and no new evidence is required.59

       Here, the Association's request that the case be remanded to the 

arbitrator for clarification is not a separate legal theory that requires the court to 

look at different facts in the record.  Rather, it is an alternative remedy that 

requires no new evidence and is closely related to the issue of the plain 

meaning of the award.  Therefore, we may consider remand as a remedy on 

appeal.  

       Finally, the City argues that in order for remand to be an appropriate 

remedy, the award must be "patently" ambiguous.  That is not the law in 

Washington.

       The City cites four federal district court opinions from jurisdictions outside 
of the Ninth Circuit in support of its claim.60  First, the ambiguity here is patent, 

not latent.  We have already discussed in this opinion why this is so.

       Second, even if the ambiguity in this award could be classified as latent, 

we do not believe that Washington law would require such a narrow

interpretation of the required remedy.  

       As Hanford states, parties agreeing to arbitrate commit all issues of fact 

       59 Id. (citing Anderson v. Farmers Ins. Co., 83 Wn. App. 725, 734, 923 
P.2d 713 (1996)).

       60 Auto., Petroleum and Allied Indus. Employees Union, Local 618 v. 
Sears, Roebuck and Co., 581 F. Supp. 672 (E.D. Mo. 1984); Int'l Brotherhood of 
Elec. Workers Local Union No. 2022 v. Teletype Corp., 551 F. Supp. 676 (E.D.
Ark. 1982); United Steelworkers of Am., Local No. 12886 v. ICI Americas Inc., 
Atlas Point Plant, 545 F. Supp. 152 (D. Del. 1982); United Steelworkers of Am., 
AFL-CIO-CLC v. Interpace Corp., 447 F. Supp. 387 (W.D. Pa. 1978).

                                              13 

No. 66033-1-I/14

and law to the arbitrator.  That case did not suggest any distinction in the 

necessity to first ask the arbitrator to clarify an ambiguous award based on 
whether the ambiguity is patent or latent.61 We conclude that, based on the 

policy that all issues of fact and law should be decided by the arbitrator, with 

limited judicial review, there should be no distinction in remedy based on the 

degree of ambiguity in a particular case.

       To summarize, the award here is ambiguous, and thus, the trial court 

should not have construed the award nor granted summary judgment to the City.  

Rather, the court should have remanded the award to the arbitrator for 

clarification.

                  DOUBLE DAMAGES UNDER RCW 49.52.070

       The Association next argues that the trial court erred in denying it the 

statutory remedies for nonpayment of wages under Washington's wage rebate 

statute, chapter 49.52 RCW.  Because there is a bona fide dispute between the 

parties whether additional pay is due, we reject this argument.

       RCW 49.52.050(2) provides that an employer who, willfully and with intent 

to deprive the employee of any part of his or her wages, pays any employee a 

lower wage than it is obligated to pay shall be guilty of a misdemeanor.  A willful 

withholding is a basis for exemplary damages of twice the amount of the wages 
unlawfully withheld together with costs and reasonable attorney fees.62

       61 353 F.2d at 307-08.

       62 RCW 49.52.070.

                                              14 

No. 66033-1-I/15

       "'Willful withholding' is 'the result of knowing and intentional action and 
not the result of a bona fide dispute as to the obligation of payment.'"63 The term 

"willful" means that the act is volitional.64 A "bona fide" dispute is one that is 

fairly debatable whether all or a portion of the wages must be paid.65 The issue 

of willfulness ordinarily presents a question of fact, but when no dispute exists as 
to the material facts, this court may dispose of the question summarily.66

        Here, the arbitrator's award is ambiguous as to the rate to be used for 

Sergeant Kasel's back pay.  The City has paid back pay according to an officer's

rate of pay.  On remand, the arbitrator shall decide, in the first instance, whether 

additional pay is required.  Thus, there is a bona fide dispute as to the obligation 

of the City to pay more.  The trial court did not err in denying the request for 

double damages.

                                  ATTORNEY FEES

       The Association argues that the trial court abused its discretion by 

reducing the amount of the award of attorney fees it requested.  It also argues 

that it is entitled to attorney fees on appeal.  We hold there was no abuse of 

       63 Yakima County, 157 Wn. App. at 341 (quoting Chelan County Deputy 
Sheriffs' Ass'n v. County of Chelan, 109 Wn.2d 282, 300, 745 P.2d 1 (1987)).

       64 Id. (citing Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 159-60, 961 
P.2d 371 (1998); Champagne v. Thurston County, 163 Wn.2d 69, 81, 178 P.3d 
936 (2008)).

       65 Id. (citing Schilling, 136 Wn.2d at 159-60; Champagne, 163 Wn.2d at
81).

       66 Id. (citing Schilling, 136 Wn.2d at 160).

                                              15 

No. 66033-1-I/16

discretion in deciding the amount of fees at trial.  A decision on whether and in 

what amount fees should be awarded for this appeal is premature.

                                       Trial Fees

       Washington allows a party to recover attorney fees under a statute, 
contract, or some well-recognized principle of equity.67 Attorney fees are 

available to a successful plaintiff in a wage recovery case under RCW 

49.48.030.  The fee request below was based on this statute.  

       In deciding whether to award requested attorney fees, a court may 
discount hours spent on unsuccessful claims.68 Any award that is substantially 

lower than that requested "should indicate at least approximately how the court 
arrived at the final numbers, and explain why discounts were applied."69

       The appellate court reviews the amount of attorney fee awards made 
pursuant to a statute for abuse of discretion.70  A decision is an abuse of 

discretion if it is outside the range of acceptable choices given the facts and the 
applicable legal standard.71

       67 Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510, 525, 210 P.3d 
318 (2009) (citing Quality Food Ctrs. v. Mary Jewell T, LLC, 134 Wn. App. 814, 
817, 142 P.3d 206 (2006)).

       68 Absher Const. Co. v. Kent School Dist. No. 415, 79 Wn. App. 841, 847, 
917 P.2d 1086 (1995).

       69 Id. at 848.

       70 Humphrey Indus., Ltd. v. Clay St. Assoc., LLC, 170 Wn.2d 495, 506, 
242 P.3d 846 (2010).

       71 In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997) 
(citing State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).

                                              16 

No. 66033-1-I/17

       Here, the Association requested $29,437.63 in attorney fees related to 

the arbitration.  The trial court held that the Association was entitled to fees, but 

discounted the amount requested by 25 percent because "there were a number 

of claims that did not work[,]" including Sergeant Kasel's claim that he should be 

reinstated as a sergeant.  This was not an abuse of discretion.

       The Association argues that it was entitled to more attorney fees because 

Sergeant Kasel was entitled to back pay at the sergeant rate.  But, the trial court 

discounted the award for a different reason: Sergeant Kasel was not successful 

in arguing that he should be reinstated as a sergeant.  The rate of back pay was 

not a consideration for the attorney fee award.  Therefore, the Association has 

not shown any abuse of discretion.

                                     Appeal Fees

       Finally, an award of fees on appeal is premature because the proper back 

pay rate has not yet been clarified by the arbitrator.  Whether the City owes 

additional amounts may only be determined by further proceedings below.  If the 

Association prevails, the trial court will then be in a position to determine 

whether and to what extent an award of fees incurred in this appeal should be 

made, as RAP 18.1(i) provides.

       We reverse and remand with instructions.

WE CONCUR:

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No. 66033-1-I/18

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