Killian v. Int'l Union of Operating Eng'rs Local 609-A

• Citation: 381 P.3d 161,195 Wash.App. 511
• Decision Date: 22 August 2016
• Docket Number: No. 74024–5–I,74024–5–I
• Court: Court of Appeals of Washington
• Parties: Roland Killian; Dennis Bailey and Debra Bailey, Appellants, v. International Union of Operating Engineers Local 609–A, Respondent, Seattle Public Schools, a municipal corporation, Defendant.

195 Wash.App. 511

381 P.3d 161

Roland Killian; Dennis Bailey and Debra Bailey, Appellants,

v.International Union of Operating Engineers Local 609–A, Respondent,Seattle Public Schools, a municipal corporation, Defendant.

No. 74024–5–I

Court of Appeals of Washington, Division 1.

FILED: August 22, 2016

Chellie Hammack, CM Hammack Law Firm, 801 2nd Avenue Suite 1410, Seattle, WA, 98104–1517, Counsel for Appellants.

Richard Scott Fallon, Angela Yenlou Hunt, Fallon, McKinley, & Wakefield, 1111 3rd Avenue Suite 2400, Seattle, WA, 98101–3238, Kathleen Phair Barnard, Schwerin Campbell Barnard Iglitzin & Lav, 18 W Mercer St. Suite 400, Seattle, WA, 98119–3971, Counsel for Respondent.

Appelwick

, J.

¶ 1 The trial court dismissed Killian and Bailey's lawsuit against Local 609 for breach of the duty of fair representation and the unauthorized practice of law as time barred. It denied their motion to amend the pleadings to add a Consumer Protection Act¹ claim. Killian and Bailey's claims against Local 609 all flow from conduct of the union representative in the course of the grievance procedure provided in their collective bargaining agreement. These claims are subsumed in the duty of fair representation. The claims were not timely filed. We affirm.

FACTS

¶ 2 Roland Killian and Dennis Bailey (appellants) were employed by Seattle Public Schools (SPS). Killian worked as a grounds foreman, overseeing school grounds personnel and other gardeners. Bailey was a grounds worker and gardener. The appellants were both members of the International Union of Operating Engineers, Local 609–A (Local 609). Local 609 is the collective bargaining unit for employees of SPS, including grounds employees.

¶ 3 On September 7, 2011, SPS sent the appellants letters informing them they were being placed on administrative leave because of allegations that they were misusing SPS resources. On December 18, 2012, SPS informed the appellants that it concluded there was proper cause to terminate their employment for misconduct. It told the appellants that their employment would be terminated effective December 27, 2012. SPS noted that the appellants could appeal the termination decision through the grievance procedure provided in the collective bargaining agreement (CBA).²

¶ 4 Local 609 filed grievances on behalf of the appellants, alleging they were disciplined without just cause and progressive discipline in violation of the CBA. Local 609 representative Mike McBee represented the appellants during the CBA grievance process. In March 2013, the appellants sought the assistance of outside counsel to pursue individual civil claims against SPS. SPS denied the grievances at Steps 1 through 3. After SPS denied the grievances at Step 3, McBee proposed mediation. The appellants expressed concern to McBee about how the mediation would affect their individual civil claims. McBee told the appellants that the mediation was intended to address only the union claims. He also told them that their outside counsel was not allowed to participate in the mediation.

¶ 5 On June 13, 2013, SPS and Local 609 filed a joint grievance mediation request with the Washington Public Employment Relations Commission (PERC). The parties proceeded to mediation with PERC. McBee was present at the mediations. Mediation began on August 5, 2013. The first day of mediation ended without settlement after SPS offered a monetary settlement much lower than what was sought. On September 9, 2013, the second day of mediation, SPS made higher monetary offers to the appellants, but the appellants rejected them. That same day, McBee presented SPS's monetary offers to settle the grievances to Local 609's executive board. At this time, the board voted to move the grievances to arbitration, but it reserved the right to rescind that decision if SPS improved its settlement offer. McBee informed the appellants that the board had voted to proceed to arbitration, but that Local 609 would consider accepting a higher settlement offer from SPS in the future.

¶ 6 On September 17, 2013, after the two unsuccessful mediation attempts, SPS offered to settle Local 609's grievances and pay $100,000 to Killian and $75,000 to Bailey if each of them would agree to release all legal claims against SPS. That day, McBee suggested to board members that Local 609 should accept SPS's offer and not proceed to arbitration. He noted that the settlement offer was the largest offer he had seen from SPS for one of its members. McBee's e-mail also stated:

I have calls into both grievants but remember, the grievance belongs to the union and we decide to proceed or not. I will be recommending to both of them that they consult their attorney before deciding to accept o[ ]r reject their individual offers. If they reject, and it's up to them, they can pursue their claims in court.

The board voted to settle the grievances and not proceed to arbitration in exchange for SPS extending the offer to the appellants.

¶ 7 That same day, outside counsel for the appellants, Chellie Hammack, wrote to counsel for Local 609, Kathleen Phair Barnard, summarizing various conversations that the two attorneys had in the past regarding the appellants' claims. Hammack also summarized conversations she had with her clients. Hammack stated that she had previously expressed concern that SPS might attempt to engage the appellants in a discussion that included settlement of all of their claims during the mediation process. She noted that she reviewed a draft settlement agreement after one of the mediation sessions, and it was clear that SPS was attempting to resolve the appellants' individual civil claims. Hammack stated that McBee never told her clients to notify her when the issue of waiver of civil claims arose at the mediation. She further stated that McBee had informed her clients that if they did not accept the settlement offer from SPS, Local 609 would decline to represent them further and would not pursue arbitration on their behalf. And, that the appellants felt pressured to accept the offers. She stated she believed that Local 609's conduct was inappropriate, and that she had the right to be contacted if and when her clients' individual civil claims were involved in the settlement discussions.

¶ 8 Local 609 and SPS entered into a settlement agreement on September 24, 2013. The appellants refused SPS's final settlement offers. When Hammack contacted SPS to discuss the possible settlement of the appellants' individual civil claims, SPS indicated that it had already extended an offer of resolution of those claims to Local 609, and it was not interested in pursuing further discussions.

¶ 9 On May 29, 2014, Bailey and Killian filed complaints against both Local 609 and SPS, and the cases were later consolidated. The appellants brought a claim of unlawful discrimination³ and a claim of breach of contract against SPS. And, they alleged that Local 609 had breached its duty of fair representation (DFR) and had negligently engaged in the unauthorized practice of law. On May 29, 2015, Local 609 moved for summary judgment, alleging that all of the appellants' causes of action were encompassed by Local 609's DFR claim. It asserted that the statute of limitations period for DFR claims is six months and that the appellants' claims were consequently time barred. On June 29, 2015, the appellants moved to amend their complaint to include a Consumer Protection Act⁴ (CPA) claim. On August 4, 2015, the trial court granted Local 609's motion for summary judgment. The trial court also denied the appellants' motion to amend, reasoning that any CPA claim would in substance be a DFR claim that would be barred by the applicable statute of limitations.

¶ 10 The appellants appeal.

DISCUSSION

¶ 11 The appellants argue that the trial court erred when it granted Local 609's motion for summary judgment based on the statute of limitations. They assert that even if their claims are all effectively DFR claims, the statute of limitations for those claims is two years, rendering their lawsuit timely. Finally, they contend that even if the statute of limitations period is six months, summary judgment is improper. They maintain this is so, because there are genuine issues of material fact about whether the appellants failed to file their action within the statute of limitations period.

¶ 12 The trial court granted Local 609's summary judgment motion as to all of the appellants' claims on the basis of the statute of limitations. Therefore, it was presumably persuaded by Local 609's argument that the appellants' unauthorized practice of law claims were subsumed by their DFR claims as a matter of law and that a six month statute of limitations applied to all of the claims.

¶ 13 This court reviews summary judgment orders de novo. Hadley v. Maxwell, 144 Wash.2d 306, 310–11, 27 P.3d 600 (2001)

. Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c) ; Peterson v. Groves, 111 Wash.App. 306, 310, 44 P.3d 894 (2002). When considering the evidence, the court draws reasonable inferences in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995).

I. Unauthorized Practice of Law and CPA Claims

¶ 14 The appellants argue that their unauthorized practice of law and CPA claims are not subsumed in their DFR claims, because those causes of action are separate and distinct from their DFR claims. Consequently, they argue that applying the statute of limitations for a DFR claim is not appropriate. Instead, the appellants cite to RCW 4.16.080(2)

and contend that the statute of limitations for their negligent and unauthorized practice of law claim is three years. And, they cite to RCW 19.86.120 and claim that the statute of limitations for their CPA claim is four years. Thus, whether the appellants' other claims are subsumed in their DFR claim determines which statute of...