Minter v. Pierce Transit

• Decision Date: 25 January 1993
• Docket Number: No. 14331-3-II,14331-3-II
• Citation: 843 P.2d 1128,68 Wn.App. 528
• Parties: Helen M. MINTER, a single person, Respondent, v. PIERCE TRANSIT, a municipal corporation, Appellant.
• Court: Washington Court of Appeals

Page 528

68 Wn.App. 528

843 P.2d 1128

Helen M. MINTER, a single person, Respondent, v. PIERCE TRANSIT, a municipal corporation, Appellant.

No. 14331-3-II.

Court of Appeals of Washington,

Division 2.

Jan. 25, 1993.

Bruce L. Schroeder, Heller, Ehrman, White & McAuliffe, Seattle, for appellant.

James F. Imperiale, Griffin Imperiale Bobman & Verhey, P.S., Tacoma, for respondent.

PETRICH, Judge.

In this wrongful termination of employment suit initiated by Helen M. Minter against Pierce Transit, ¹ her employer, Pierce Transit sought and this court accepted discretionary review of the trial court's denial of Pierce Transit's motion for summary judgment of dismissal. Pierce Transit contends that the arbitration procedure provided for in the collective bargaining agreement covering Minter's employment was the sole and exclusive remedy available to her.

The primary issue on appeal is whether a provision in the collective bargaining agreement, which provides that either taking a grievance appeal to arbitration or litigating the matter in court is an election of remedies and a waiver of alternative rights, overcomes the strong presumption that arbitration clauses provide the exclusive remedy in such agreements. We hold that the presumption was overcome and that arbitration was not the exclusive remedy available under the collective bargaining agreement. We affirm the trial court's denial of the motion for summary judgment.

Helen Minter worked full time as a bus driver for Pierce Transit and its predecessor from 1977 until 1988. In the two years prior to her dismissal, Minter had several accidents. On October 13, 1988, she was dismissed for violating safety rules, policies, and procedures.

Minter, a member of the Amalgamated Transit Union, Local 758, requested the Union to file a grievance on her behalf according to the terms of a collective bargaining agreement between the Union and Pierce Transit. The committee hearing the grievance affirmed the termination.

Although never recanting its position that Minter's claim was meritorious, the Union decided not to pursue Minter's case to arbitration, as authorized under Article VIII(E) of the collective bargaining agreement. Minter then filed a complaint against Pierce Transit in Pierce County Superior Court for wrongful termination, basing her action on a provision in the collective bargaining agreement that provides that no employee will be dismissed except for cause. She did not contend that the Union breached its duty of fair representation.

The trial court denied Pierce Transit's motion for summary judgment, rejecting its argument that Article VIII ² of the collective bargaining agreement made arbitration the exclusive remedy available to Minter. The specific provision at issue is Article VIII(E)(10), which reads:

It is specifically and expressly understood and agreed that taking a grievance appeal to arbitration constitutes an election of remedies and a waiver of any and all rights by the appealing employee, the Union, and all persons it represents to litigate or otherwise contest the appealed subject matter in any court or other available forum. Likewise, litigation or other contest of the subject matter of the grievance in any court or other available forum shall constitute an election of remedies and a waiver of the right to arbitrate the matter.

Pierce Transit asserts several reasons why this provision must be read to mean that arbitration is the exclusive remedy available to Minter under the collective bargaining agreement. It argues that contractual remedies under the collective bargaining agreement are ultimately subject to arbitration as the exclusive remedy of the parties. The election of remedies paragraph of the agreement, it contends, applies only to statutory causes of action, such as discrimination claims under state or federal law. See Alexander v. Gardner-Denver Co., 415 U.S.

Page 431

                36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (contractual grievance and arbitration procedures provide an inadequate forum for enforcing statutory rights granted to individuals);  Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 577-78, 731 P.2d 497 (1987), overruled on other grounds, Phillips v. Seattle, 111 Wash.2d 903, 766 P.2d 1099 (1989) (statutory scheme in the State's anti-discrimination law evidences the Legislature's intent to allow individual employees to pursue their statutory rights independently from the remedies of a collective bargaining agreement).   Such an interpretation, according to Pierce Transit, is mandated because of the strong presumption that grievance and arbitration procedures provide the exclusive remedy for resolving contractual disputes in labor agreements, and because such was intended as demonstrated by extrinsic evidence of the negotiations leading up to the contract and by the plain reading of the contract.   We disagree
                

PRESUMPTION OF EXCLUSIVITY

According to Pierce Transit, the trial court erred in ignoring the well-established presumption that a labor contract's grievance and arbitration procedure is the exclusive remedy available to a party subject to its terms. Pierce Transit cites a number of federal and state cases illustrating the nature and scope of this presumption.

The seminal case is Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), in which the United States Supreme Court considered a case where a former employee successfully sued in state court for severance pay against an employer where both the employer and the employee were subject to a collective bargaining agreement. The Court held that where a collective bargaining agreement has provisions for grievances, "unless the contract provides otherwise, there can be no doubt that the employee must afford the Union the opportunity to act on his behalf." Republic, at 653, 85 S.Ct. at 616. While Republic did in fact establish that arbitration clauses are presumed to be exclusive, the Republic Court also stated that the employee's Similarly, in Wyatt v. Interstate & Ocean Transp. Co., 439 F.Supp. 1310 (E.D.Virginia, 1977), the court acknowledged a presumption that arbitration clauses are exclusive of other remedies: "contract grievance procedures including arbitration must, unless specified as nonexclusive, be exhausted before direct legal redress is sought." Wyatt, at 1312. The Wyatt court, however, recognized that where the Union failed to pursue the employee's grievance, the employee was free to pursue an independent action against the employer and the Union apart from the grievance procedures called for under the collective bargaining agreement. Wyatt, at 1311.

suit would not be precluded if the parties to the collective bargaining agreement expressly agreed that arbitration was not the exclusive remedy. Republic, at 657-58, 85 S.Ct. at 618-19.

Washington courts also recognize this presumption. In Lew v. Seattle Sch. Dist. 1, 47 Wash.App. 575, 736 P.2d 690 (1987), a high school counselor filed a grievance and followed the first three steps of a four-step grievance procedure. However, upon reaching the final step, which called for the Seattle Teacher's Association to submit the grievance to binding arbitration on behalf of the aggrieved teacher, the Association refused to submit the grievance to arbitration. Lew, at 576, 736 P.2d 690. The Lew court set out the general rule regarding grievance procedures:

[W]here 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. 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.

(Citations omitted.) Lew, at 577-78, 736 P.2d 690. However, the Lew court held that in order to maintain such an action, the employee must also join the union in the complaint and allege that the union acted arbitrarily, discriminatorily, or in bad faith in failing to exhaust the grievance procedures. Lew, at 578, 736 P.2d 690.

In the cases Pierce Transit relies upon, the union was the sole agent of the employee under the collective bargaining Article VIII(E)(1) provides that if a grievance cannot be amicably settled in accordance with the outlined procedures, the grievance "may be submitted to arbitration." (Emphasis added.) In the absence of any contradictory language, arbitration is the exclusive remedy. However, Article VIII(E)(10) specifically and expressly provides that "litigation or other contest of the subject matter of the grievance in any court or other available forum shall constitute an election of remedies and a waiver of the right to arbitrate the matter." (Emphasis added.) A "grievance" is narrowly defined in Article VIII(B) as a "claim by an employee that the terms of this Agreement have been violated, or that a dispute exists concerning the proper application or interpretation of this Agreement." (Emphasis added.) A grievance under the contract does not embrace a statutory violation of an employee's rights. The election of remedies provision clearly gives Minter the option of litigating in court her claim that the collective bargaining agreement has been violated. This provision overcomes the strong presumption of arbitrability as the exclusive remedy because it satisfies the requirement of an express agreement.

                agreement, and there was no provision for any other type of remedy under the agreement.   Here, however, the collective bargaining agreement provides for an alternate course of relief apart from arbitration, and this course of relief is not waived until the grievance is taken to arbitration
                

EXTRINSIC EVIDENCE

Pierce Transit contends that extrinsic evidence supports its...