Lew v. Seattle School Dist. No. 1

• Decision Date: 04 May 1987
• Docket Number: No. 16627-1-I,16627-1-I
• Citation: 47 Wn.App. 575,736 P.2d 690
• Parties: , 39 Ed. Law Rep. 842 Edward T. LEW, Appellant, v. SEATTLE SCHOOL DISTRICT NO. 1, Respondent.
• Court: Washington Court of Appeals

Page 575

47 Wn.App. 575

736 P.2d 690, 39 Ed. Law Rep. 842

Edward T. LEW, Appellant, v. SEATTLE SCHOOL DISTRICT NO. 1, Respondent.

No. 16627-1-I.

Court of Appeals of Washington,

Division 1.

May 4, 1987.

As Changed May 18, 1987.

John Chen Beckwith, Beckwith & Collins, Seattle, for Edward lew.

Phillip A. Thompson, Office of Gen. Counsel, Seattle School Dist. No. 1, Seattle, for Seattle School District No. 1.

GEORGE H. REVELLE, Judge Pro Tem. ^*

On January 5, 1982 a formal complaint against appellant Edward Lew, a high school counselor, was filed by a student's parents with respondent Seattle School District. Based on its own investigation, respondent found that appellant's conduct warranted a written admonition and a transfer to a different position.

On April 20, 1982, appellant initiated the formal grievance procedure outlined in his collective bargaining agreement. That procedure may be summarized as follows:

(a) Step 1: The aggrieved employee initiates the formal grievance procedure by presenting a Grievance Review Request Form to his/her immediate supervisor requesting a formal conference;

(b) Step 2: The aggrieved employee may request additional review, conference and action by submitting a completed Grievance Review Request Form to the Staff Relations and Policy Development office of the Seattle School District;

(c) Step 3: If the grievance is not resolved, the aggrieved employee may request further review, conference and action by the Superintendent or his/her designated representative;

(d) Step 4: If the grievance has not been adjusted satisfactorily, the Seattle Teachers Association (STA) may, on behalf of the aggrieved employee, submit the grievance to binding arbitration. The STA has sixty days after receipt of the Step 3 decision to request the binding arbitration. ¹

Appellant timely triggered the first three steps of the procedure, and on July 21, 1982, the district deputy superintendent rendered a decision ending the third step of the procedure.

Following receipt of the deputy superintendent's decision, appellant asked the Seattle Teachers Association (STA) to submit his grievance for arbitration pursuant to the fourth step in the grievance procedure. Respondent waived the sixty-day requirement of Step 4. By letter dated September 28, 1982, and received September 30, 1982, the STA notified appellant that it felt nothing could be gained by submitting the matter to arbitration.

On October 29, 1982, appellant brought suit against respondent for breach of contract. The complaint did not name the STA as a defendant, and did not allege that the STA had wrongfully refused to press the matter on to arbitration.

Respondent subsequently moved for summary judgment, arguing that appellant's action could not be maintained in the absence of a claim that the STA breached its duty of fair representation, and that appellant's action was also barred because he failed to file his superior court action within the thirty day limit contained in RCW 28A.88.010. The trial court granted the motion, and held that appellant had not timely filed his action under RCW 28A.88.010. This appeal followed.

Appellant contends the trial court erred in granting summary judgment on the basis of RCW 28A.88.010. On the other hand, respondent argues that even if the trial court erred in granting summary judgment on the basis of RCW 28A.88.010, the judgment can be upheld on the basis of appellant's failure to allege in his complaint that the STA breached its duty of fair representation. ²

In general, where a collective bargaining agreement establishes grievance and arbitration procedures for the redress of employee grievances, an employee must exhaust those procedures before resorting to judicial remedies. Moran v. Stowell, 45 Wash.App. 70, 724 P.2d 396 (1986); Smith v. General Elec. Co., 63 Wash.2d 624, 625-27, 388 P.2d 550 (1964); Tombs v. Northwest Airlines, 83 Wash.2d 157, 162, 516 P.2d 1028 (1973); Garton v. Northern Pac. Ry., 11 Wash.App. 486, 523 P.2d 964 (1974); Clayton v. Automobile Workers, 451 U.S. 679, 681, 101 S.Ct. 2088, 2091, 68 L.Ed.2d 538 (1981); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967); Burkhart v. Mobil Oil Corp., 143 Vt. 123, 126, 463 A.2d 226, 228 (1983). However, federal and state courts have held that an employee's failure to exhaust contractual grievance procedures does not bar an action by the employee for breach of contract if the employee has been prevented from exhausting his or her contractual remedy by his or her union's wrongful refusal to process the grievance. Vaca, 386 U.S. at 184 n. 9, 185, 87 S.Ct. at 913 n. 9, 914. In this regard, the courts have generally held that where a grievance procedure has not been exhausted due to the union's refusal to press the matter on to arbitration, "a prerequisite to maintaining a lawsuit against [the employer] is an allegation that the...