Killian v. Seattle Pub. Sch., Corp.

• Citation: 189 Wash.2d 447,403 P.3d 58
• Decision Date: 12 October 2017
• Docket Number: No. 93655-2.,93655-2.
• Court: United States State Supreme Court of Washington
• Parties: Roland KILLIAN, Petitioner, v. SEATTLE PUBLIC SCHOOLS, a municipal corporation, Defendant, Intern ational Union of Operating Engineers, Local 609-A, Respondent. Dennis Bailey and Debra Bailey, Petitioners, v. Seattle Public Schools, a municipal corporation, Defendant, Intern ational Union of Operating Engineers, Local 609-A, Respondent.

189 Wash.2d 447

403 P.3d 58

Roland KILLIAN, Petitioner,

v.SEATTLE PUBLIC SCHOOLS, a municipal corporation, Defendant,Intern ational Union of Operating Engineers, Local 609-A, Respondent.

Dennis Bailey and Debra Bailey, Petitioners,

v.Seattle Public Schools, a municipal corporation, Defendant,Intern ational Union of Operating Engineers, Local 609-A, Respondent.

No. 93655-2.

Supreme Court of Washington, En Banc.

Argued May 9, 2017

Filed Oct. 12, 2017

Chellie Hammack, CM Hammack Law Firm, 801 2nd Ave., Ste. 1410, Seattle, WA, 98104-1517, for Petitioner.

Richard Scott Fallon, Fallon McKinley & Wakefield, 1111 3rd Ave., Ste. 2400, Seattle, WA, 98101-3238, Angela Yenlou Hunt, Crump Law Firm, 10303 Meridian Ave. N., Ste. 203, Seattle, WA, 98133-9483, Kathleen Phair Barnard, Schwerin Campbell Barnard Iglitzin & Lav, 18 W. Mercer St., Ste. 400, Seattle, WA, 98119-3971, for Respondent.

MADSEN, J

¶1 Former Seattle Public Schools (SPS) employees Roland Killian and Dennis Bailey (petitioners) seek reversal of a published Court of Appeals decision. In that decision, the Court of Appeals affirmed the trial court's summary judgment ruling in favor of petitioners' bargaining representative, International Union of Operating Engineers Local 609-A (IUOE). There are two issues in the case: (1) whether petitioners' negligent and unauthorized practice of law and Consumer Protection Act (CPA) (ch. 19.86 RCW) claims against IUOE are subsumed within their claims that IUOE breached its duty of fair representation (DFR) and (2) whether the six-month statute of limitations for unfair labor practices brought before the Public Employment Relations Commission (PERC) applies to petitioners' claims that they brought in superior court.

¶2 We hold that the claims arising out of IUOE's representation are subsumed into a DFR claim against IUOE and that the six-month statute of limitations found in RCW 41.56.160(1) and RCW 41.80.120(1) does not apply to unfair labor practices filed in superior court because those statutes refer only to those claims filed with PERC. Therefore, the trial court erred in granting summary judgment because petitioners' claims were timely. We reverse the Court of Appeals.

FACTS

¶3 Petitioners were employed as grounds workers for SPS. Killian was a grounds foreman, supervising school grounds personnel, and Bailey was a grounds worker. Both were members of IUOE, which is the collective bargaining unit for SPS employees, including grounds workers. On September 7, 2011, SPS sent petitioners letters informing them that SPS was placing them on administrative leave based on allegations that they misused SPS resources. SPS learned of this alleged misuse from another employee. That employee alleged petitioners used SPS tools and the SPS vehicle during work hours to conduct a side business of gardening and landscaping for private customers.

¶4 On December 18, 2012, SPS informed petitioners that proper cause existed to terminate their employment for misconduct. The termination was effective December 27, 2012. IUOE filed grievances on behalf of petitioners, alleging that SPS disciplined them without just cause or progressive discipline in violation of the collective bargaining agreement (CBA). Michael McBee served as petitioners' union representative. McBee is not an attorney. Petitioners retained outside counsel to represent them in their unlawful discrimination and retaliation claims against the district.

¶5 SPS denied the grievances at steps 1, 2, and 3 of the grievance process (on February 5, 2013, February 28, 2013, and March 29, 2013), so McBee proposed mediation. On June 13, 2013, SPS and IUOE filed a joint grievance mediation request with PERC. McBee told petitioners that mediation was meant to address only the union claims, specifically the claims for discipline without just cause or progressive discipline, and that their outside counsel was not allowed to participate or be present at mediation.

¶6 On September 17, 2013, SPS offered to extend a settlement to Killian and Bailey that would pay Killian $100,000 and Bailey $75,000 if they would agree to release all legal claims against SPS. Clerk's Papers (CP) 61-62, 172-75. After McBee informed IUOE's executive board of the offer, the board voted to settle IUOE's grievances with SPS if SPS extended the offers to petitioners. According to McBee, he repeatedly told petitioners to discuss the settlement offers with their attorney. McBee recommended to the IUOE board that they accept SPS's offer and not proceed to arbitration. IUOE and SPS settled the union's grievance in exchange for SPS extending the offers to petitioners on September 20, 2013.

¶7 Also on September 17, 2013, petitioners' attorney, Chellie Hammack, wrote a letter to counsel for IUOE, Kathleen Barnard, summarizing discussions between the attorneys, as well as between petitioners and McBee. McBee had told petitioners that if they did not accept the offer extended, the union would not pursue arbitration on their behalf. According to Hammack, Barnard had assured her that McBee knew that no release of civil claims would or should occur without Hammack's involvement. Hammack ended her letter requesting clarification of IUOE's position, asking, "Is it the union's position that should my clients decline the offers, including releasing the civil claims, that it will not pursue arbitration and will no longer assist them by seeking reinstatement on their behalf? Please let me know in writing so that I can advise my clients of their options." CP at 136. In the letter that Barnard sent in response on October 11, 2013, she did not answer this question. Instead, she indicated that if petitioners were still in negotiations over their "public law claims," IUOE would be willing to request an extension on the grievance resolution deadline from SPS. CP at 138, 436. Barnard sent that letter the day before the membership meeting.

¶8 On October 12, 2013, IUOE held a regularly scheduled membership meeting that Bailey attended. At the meeting, decisions by the IUOE executive board from the previous month were read aloud, including the decision not to arbitrate petitioners' grievances. Bailey heard this announcement and told Killian. On October 14, 2013, petitioners' counsel wrote another letter to IUOE's counsel. In it, Hammack inquired as to IUOE's position given that IUOE counsel expressed a willingness to extend the grievance resolution deadline the day before it was announced that IUOE would no longer be pursuing the grievances. On October 18, 2013, Barnard responded that her earlier letter had put IUOE's position into writing, and Hammack's response acknowledged that petitioners were aware that IUOE would not pursue arbitration.

¶9 Petitioners filed suit in superior court against SPS and IUOE on May 29, 2014. The court consolidated their cases. Petitioners' allegations against SPS included unlawful discrimination in violation of RCW 49.60.180 and breach of contract for violating the CBA. SPS settled their claims with petitioners and were dismissed as defendants before IUOE moved for summary judgment. Against IUOE, petitioners alleged two claims in their complaint: breach of DFR in violation of RCW 41.56.080 and negligent and unauthorized practice of law. Petitioners later moved to amend their complaint to add a claim against IUOE under the CPA.

¶10 IUOE moved for summary judgment, alleging that all of petitioners' claims were subsumed within their DFR claim, which IUOE alleged had a statute of limitations of only six months. Because that six-month period had expired, IUOE argued that petitioners' claims were time barred. Even assuming the date of Barnard's last letter, six months had elapsed since petitioners became aware that IUOE would not pursue arbitration. Petitioners opposed IUOE's motion for summary judgment. The court granted IUOE's motion for summary judgment based on the statute of limitations. The court also denied petitioners' motion to amend their complaint.

¶11 Division One of the Court of Appeals affirmed, holding that petitioners' other claims are subsumed into the DFR claim and the six-month statute of limitations applies. Killian v. Int'l Union of Operating Eng'rs, Local 609-A , 195 Wash. App. 511, 513-14, 381 P.3d 161 (2016). Thus, petitioners did not timely file their claims and the superior court properly granted summary judgment in favor of IUOE. Id. at 514, 381 P.3d 161. This court accepted review. Killian v. Seattle Pub. Schs. , 187 Wash.2d 1016, 388 P.3d 762 (2017).

ANALYSIS

¶12 We review summary judgment de novo. Allen v. State , 118 Wash.2d 753, 757, 826 P.2d 200 (1992). We sit in the same position as the trial court below and analyze whether any genuine issues of material fact exist and whether one party is entitled to judgment as a matter of law. Id. ; CR 56(c). We view the facts and all reasonable inferences in the light most favorable to the nonmoving party. Samis Land Co. v. City of Soap Lake , 143 Wash.2d 798, 803, 23 P.3d 477 (2001).

¶13 Washington's Public Employees' Collective Bargaining Act (PECBA), RCW 41.56.010 -.900, "provides a cause of action for unfair labor practices, an action that a party can file with either the Public Employment Relations Commission (PERC) or a superior court." Wash. State Council of County & City Emps. v. Hahn , 151 Wash.2d 163, 167, 86 P.3d 774 (2004) (citing City of Yakima v. Int'l Ass'n of Fire Fighters , 117 Wash.2d 655, 674-75, 818 P.2d 1076 (1991) ). Washington further recognizes a duty of fair representation imposed on unions. See Allen v. Seattle Police Officers' Guild , 100 Wash.2d 361, 371-72, 670 P.2d 246 (1983). This court has noted that, federally, "[t]he duty of fair representation evolved as a judicial response to the broad power granted to unions as exclusive representatives of their members." Id. at 367, 670 P.2d 246 (citing The National Labor Relations Act (NLRA) § 9, 29 U.S.C. § 159(a) (1976) ). The standard of care that unions owe their members is encapsulated by the...