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Weinreich v. Wilburn

October 7, 1996

HUGH D. WEINREICH, APPELLANT,
v.
DONNELLY J. WILBURN AND JOHN DOE WILBURN, WIFE AND HUSBAND, AND THE MARITAL COMMUNITY COMPOSED THEREOF, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 93-2-17620-1. Date filed: 12/15/94. Judge signing: Hon. Ann Schindler.

Authored by C. Kenneth Grosse. Concurring: Mary K. Becker, Ronald E. Cox.

The opinion of the court was delivered by: Grosse

Grosse, J. -- Hugh D. Weinreich sued Donnelly J. Wilburn for failing to perfect his appeal from an unfavorable Public Employment Relations Commission's (PERC) decision. The superior court dismissed his malpractice claim, determining Weinreich did not establish proximate cause by showing that he would have probably prevailed in his appeal of the underlying unfair labor claims had Wilburn actually perfected his appeal. We agree.

Weinreich did not establish proximate cause because the PERC commissioners did not need to adopt the hearing examiner's findings and PERC did not erroneously conclude that Weinreich failed to prove his unfair labor practices claims.

FACTS

The Port of Seattle (the port) occasionally employed longshoreman Weinreich as a casual worker, hiring him through the hiring hall run by the International Longshoremen's and Warehousemen's Union, Local 9 (the union).

Under the collective bargaining agreement between the port and the union, the port fills most of its labor requirements through layoff and recall of employees from seniority lists consisting of approximately 102 employees.

If the port requires additional workers, the port uses the hiring hall run by the union. Workers are referred on a seniority basis and they are classified in three groups based on hours worked in the industry. Under the collective bargaining agreement, the port lays off casual employees referred from the hiring hall before laying off its own senior workers. Hiring hall workers may gain seniority with the port if they work 45 consecutive days on a single dispatch.

On October 13, 1988, the hiring hall dispatched Randy Uecker, Jerry Johnson, Rod Cameron, and Marty Arguello to work for the port at Pier 91.

The dispatch was to work under foreman Edward Trinka's supervision.

Subsequently Trinka and marine operations superintendent Eric Thomsen decided to confer seniority status on Uecker, Johnson, Cameron, and Arguello, using the 45-day provision. Thomsen testified that he and Trinka wanted to give the men seniority status because they were good workers and were willing to work at Pier 91, which the workers considered a difficult place to work. Others testified that the men had personal and business connections to Trinka.

The men had worked 45 consecutive days through Wednesday, November 23, 1998, the day before Thanksgiving. On this date, Pier 91 superintendent Joe Stuntz instructed Thomsen to lay off all casual workers, including Uecker, Johnson, Cameron, and Arguello. The port was laying off its own senior workers and was required under the collective bargaining agreement to lay off casual workers.

Dismayed by the order, Trinka and Thomsen actively sought to avoid laying off the men by calling their supervisors and a union official. Pier superintendent Stuntz and port labor relations official John Swanson reiterated that it was necessary to lay off the casual employees and instructed Thomsen to lay off the men. Thomsen ordered Trinka to do so.

But Trinka did not lay off the men. The men were granted seniority status on November 27, 1988. Swanson determined that it would be a breach of the collective bargaining agreement to not grant the four men gained seniority status.

Weinreich and several other employees wrote a letter to Swanson objecting to the grant of seniority, contending the men should have been laid off under the collective bargaining agreement. Neither the union nor the port treated the letter as a grievance. In January, Thomsen reprimanded Trinka for failing to lay off the men.

Proceeding pro se, Weinreich alleged that the port had committed unfair labor practices under RCW 41.56.140 by giving the four men seniority status because of familial and union connections. Weinreich also alleged that the union acted in complicity with the port by failing to process his grievance. On January 16, 1991, the PERC hearing examiner (the examiner) found that both the employer and the union had committed unfair labor practices. ...


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