Davis v. State, Dept. of Transp., 34352-5-II.

CourtCourt of Appeals of Washington
Citation138 Wn. App. 811,159 P.3d 427
Decision Date30 May 2007
Docket NumberNo. 34352-5-II.,34352-5-II.
PartiesBen DAVIS, Floyd Fulmer, Roy Hyett, Dick Olson, individually and on behalf of all persons similarly situated, Respondents, v. STATE of Washington, DEPARTMENT OF TRANSPORTATION, Appellant.
159 P.3d 427
138 Wn. App. 811
Ben DAVIS, Floyd Fulmer, Roy Hyett, Dick Olson, individually and on behalf of all persons similarly situated, Respondents,
v.
STATE of Washington, DEPARTMENT OF TRANSPORTATION, Appellant.
No. 34352-5-II.
Court of Appeals of Washington, Division 2.
May 30, 2007.

[159 P.3d 429]

Stewart Arthur Johnston, Atty. General Office L & p Div., Kara Anne Larsen, Office of The Atty. General, Olympia, WA, for Appellant.

Lewis Lynn Ellsworth, Gordon Thomas Honeywell, Warren Evans Martin, Tacoma, WA, for Respondents.

BRIDGEWATER, P.J.


¶ 1 The State appeals from a summary judgment order in favor of Washington State Ferry employees, in which the trial court agreed that the State willfully deprived the employees of compensation for watch changes that extended beyond their regular assigned work day. Washington State Ferry policies require these watch changes, during which the off-going employees exchange any pertinent information about the operation of the vessels before being relieved by on-coming employees.

¶ 2 We hold that, under the collective bargaining agreement (CBA), watch changes are a work activity for which the State must compensate employees. And we hold that the employees failed to exhaust either their contractual remedies under the CBA or their administrative remedies under the Maritime Employees' Commission (MEC). Because the employees' lawsuit was inappropriate, the trial court should have granted summary judgment in favor of the State. Therefore, the employees must seek a remedy either through the procedures established by the CBA or through the procedures established by the MEC. Accordingly, we reverse and remand for entry of a summary judgment in favor of the State.

FACTS

¶ 3 The respondents in this case are licensed engineer officers and unlicensed engine room employees for the Washington State Ferry (WSF) system. Under a CBA between the Marine Engineers Beneficial Association and the Washington State Department of Transportation (DOT), these employees have negotiated various provisions for overtime compensation.

¶ 4 For instance, licensed engineer officers and unlicensed engine room employees generally are entitled to overtime compensation at a rate of two times the base rate in their classification.1 When work is extended 15 minutes or less beyond a regular assigned work day,2 the CBA requires the State to compensate the employee for one-quarter hour at the overtime rate. When work is extended 15 minutes or more beyond a regular assigned work day, the CBA requires the State to compensate the employee in increments of one hour at the overtime rate. Nevertheless, "[s]uch extended work shifts shall not be scheduled on a daily or regular basis." CP at 72, 107.

¶ 5 Each regular assigned work shift aboard a ferry is called a watch. These watches do not overlap. When one watch ends, another watch immediately begins. Washington State Ferry policies require that the off-going employees exchange any pertinent information about the operation of the vessels before being relieved. The respondents'

159 P.3d 430

expert concluded that on average these watch changes lasted about 11 minutes; the State's expert concluded that on average these watch changes lasted about 5 minutes.

¶ 6 Even though watch changes extend the employees' work beyond a regular assigned work shift, the State does not compensate employees for watch changes. In defense of its position, the State notes that: (1) the maritime industry does not consider watch changes compensable work; (2) the CBA is silent about compensation for watch changes; (3) no employee has ever sought overtime compensation for watch changes; and (4) compensation for watch changes has never been the subject of collective bargaining.

¶ 7 Because of the State's position, the respondents brought a class action lawsuit on behalf of themselves and all other similarly situated employees of the marine transportation division of the DOT. They alleged that the State unlawfully withheld their wages under chapter 49.48 RCW and chapter 49.52 RCW.

¶ 8 The State moved for summary judgment, arguing that there was no legal basis for the claim and that the employees failed to exhaust their administrative remedies before the MEC. But the trial court denied the State's motion.

¶ 9 The employees then moved for partial summary judgment, arguing that watch changes are compensable work under chapter 49.48 RCW and/or chapter 49.52 RCW. The trial court agreed with the employees and granted their motion.

¶ 10 Thereafter, both the State and the employees moved for summary judgment. Again, the State argued in part that: (1) the employees are not entitled to any compensation for watch changes under the CBA; (2) the employees failed to exhaust their administrative remedies before the MEC; and (3) in any case, the State did not willfully deprive the employees of compensation for watch changes. The State also argued that watch changes should not be considered work because they are a de minimis activity. The employees argued that the State willfully deprived them of compensation for watch changes and that they were entitled to twice the amount of wages unlawfully withheld under RCW 49.52.070.

¶ 11 The trial court denied the State's motion for summary judgment, but granted the employees' motion for summary judgment. The trial court then entered judgment for the employees.

ANALYSIS
I. STANDARD OF REVIEW

¶ 12 On review of an order for summary judgment, we perform the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 93 P.3d 108 (2004). Thus, the standard of review is de novo. Morton v. McFall, 128 Wash.App. 245, 252, 115 P.3d 1023 (2005). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We consider the facts and all reasonable inferences in the light most favorable to the non-moving party. Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 502-03, 834 P.2d 6 (1992). Summary judgment is granted only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005). "All questions of law are reviewed de novo." Berger v. Sonneland, 144 Wash.2d 91, 103, 26 P.3d 257 (2001).

II. THE RIGHT TO COMPENSATION FOR WATCH CHANGES IS DERIVED FROM THE CBA

¶ 13 The State claims that "[t]he collective bargaining agreements contain all the terms and conditions of employment and are the exclusive source for wages." Br. of Appellant at 15. And because the CBA is allegedly silent about compensation for watch changes and because the employees did not seek a remedy under the CBA, the State contends that their lawsuit must fail. But we disagree with the State that the CBA is silent about compensation for watch changes.

159 P.3d 431

¶ 14 In construing a written contract, such as the CBA here, we have consistently applied the following rules: (1) the intent of the parties controls; (2) we ascertain that intent from reading the contract as a whole; and (3) we do not read ambiguity into the contract. Dice v. City of Montesano, 131 Wash.App. 675, 683-84, 128 P.3d 1253, review denied, 158 Wash.2d 1017, 149 P.3d 377 (2006); Mayer v. Pierce County Med. Bureau, 80 Wash.App. 416, 420, 909 P.2d 1323 (1995).

¶ 15 Furthermore, we give words and provisions in a contract their ordinary meaning. Corbray v. Stevenson, 98 Wash.2d 410, 415, 656 P.2d 473 (1982). If their meaning is uncertain or if they are capable of more than one meaning, we consider them ambiguous. Shafer v. Bd. of Trs. of Sandy Hook Yacht Club Estates, Inc., 76 Wash.App. 267, 275, 883 P.2d 1387 (1994), review denied, 127 Wash.2d 1003, 898 P.2d 308 (1995). But words and provisions in a contract are not ambiguous simply because a party suggests an opposing meaning. Mayer, 80 Wash.App. at 421, 909 P.2d 1323.

¶ 16 Here, we hold that the CBA unambiguously addresses compensation for watch changes in its definition of wages and its treatment of overtime. As we have noted, the CBA requires: (1) the State to compensate the employees for one-quarter hour at the overtime rate when work is extended 15 minutes or less beyond a regular assigned work day; and (2) the State to compensate the employees in increments of one hour at the overtime rate when work is extended 15 minutes or more beyond a regular assigned work day. The ordinary meaning of these provisions leaves no room for alternative interpretations. Consequently, the language itself is not ambiguous.

¶ 17 But the language of these provisions is only one factor in the equation of the parties' intent. Scott Galvanizing, Inc. v. Nw. EnviroServices, Inc., 120 Wash.2d 573, 580, 844 P.2d 428 (1993). In determining the parties' intent, we also look to the contract as a whole, its subject matter and objective, the circumstances of its making, the subsequent acts and conduct of the parties, and the reasonableness of the parties' interpretations. Berg v. Hudesman, 115 Wash.2d 657, 667, 801 P.2d 222 (1990).3

¶ 18 The State contends that no employee has ever sought overtime compensation for watch changes and that the union has never made compensation for watch changes the subject of collective bargaining.4 Yet, during oral argument, the State candidly acknowledged that even a "layman" certainly would understand that watch changes are a work activity. And regardless of the State's inconsistent positions, the CBA clearly provides compensation for work that is extended beyond a regular assigned work day.

¶ 19 The State also contends, "It is undisputed that it is the custom and practice in the maritime industry that watch turnover is not separately compensable." Br. of Appellant at 27. But extrinsic evidence may not...

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