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Ervin v. Columbia Distributing Inc.

February 6, 1997

MIKE ERVIN, APPELLANT,
v.
COLUMBIA DISTRIBUTING, INC., A WASHINGTON CORPORATION, RESPONDENT.



Appeal from Superior Court of Okanogan County. Docket No: 94-2-00020-1. Date filed: 06/08/94. Judge signing: Hon. John G. Burchard Jr.

Authored by Philip J. Thompson. Concurring: Dennis J. Sweeney, John A. Schultheis.

The opinion of the court was delivered by: Thompson

THOMPSON, J. Mike Ervin appeals the summary dismissal of his claims against Columbia Distributing, Inc., for unpaid overtime pay. He contends the trial court erroneously concluded his claims were barred because he failed to process them through his union's grievance procedure. We affirm in part, reverse in part, and remand. *fn1

Mr. Ervin began working for Columbia in 1984, when he and his father sold their Omak distributorship to Columbia. Mr. Ervin later became operations manager of Columbia's Omak branch, and worked in that capacity as a supervisor until 1989. He left the supervisory position in 1989 and began working as a driver-salesman, which is a position covered by Columbia's collective bargaining agreement with Teamsters Local 760.

According to Mr. Ervin, Columbia officials made it clear from the beginning of his employment that Columbia would not pay overtime wages. Both Mr. Ervin and Columbia's president, Richard W. Whipple, stated there was an understanding between the company and its employees that long hours during the busy summer season would be offset by shorter hours during the winter months. The union contract guaranteed driver-salesmen 40 hours' pay each week.

Mr. Ervin stated he never finished his work in less than eight hours, and there were many days when he worked much longer than eight hours. In July 1991, he decided to keep track of his hours on a calendar. He discussed his concerns with a union representative, but did not file a grievance because he believed it would not do any good.

Columbia's contract with the union provided for "time and one-half" pay for hours worked in excess of 10 in a day or 40 in a week. The contract established a grievance procedure (including binding arbitration), %which required employees to file grievances "within fifteen (15) days of the date of the occurrence or discovery," and provided that "claims for additional wages shall be limited to a period of thirty (30) calendar days immediately preceding the date upon which the Employer received notice in writing of the claim."

Mr. Ervin voluntarily quit his job in April 1992. He filed a complaint against Columbia in January 1994, requesting (among other things) compensation for unpaid overtime, as well as exemplary damages and attorney fees. Mr. Ervin later stipulated that his claim was solely for unpaid overtime pay for the period from January 1990 to April 1992.

On Columbia's motion for summary judgment, the superior court dismissed the complaint, holding the overtime issue should have been resolved under the collective bargaining agreement's grievance procedure. The court concluded Mr. Ervin's failure to process a grievance barred statutory relief.

In reviewing a summary judgment order, we engage in the same analysis as did the superior court. Ruff v. County of King, 125 Wash. 2d 697, 703, 887 P.2d 886 (1995). Summary judgment is appropriate if on the record "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). A fact is material if it affects the outcome of the litigation. Ruff, 125 Wash. 2d at 703 (citing Barrie v. Hosts of Am., Inc., 94 Wash. 2d 640, 642, 618 P.2d 96 (1980); Braegelmann v. County of Snohomish, 53 Wash. App. 381, 383, 766 P.2d 1137, review denied, 112 Wash. 2d 1020 (1989)). The burden is on the moving party to establish its right to judgment as a matter of law, and facts and reasonable inferences from the facts are considered in favor of the nonmoving party. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wash. 2d 439, 452, 842 P.2d 956 (1993).

We first consider whether Mr. Ervin's contract-based claim is barred because he failed to pursue his remedies under the collective bargaining agreement's grievance procedure. As a general rule, federal labor policy *fn2 requires that an employee who alleges violation of a labor contract must attempt to use the contract's grievance procedure before seeking a judicial remedy. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965); see Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 914, 17 L. Ed. 2d 842 (1967); see also Moran v. Stowell, 45 Wash. App. 70, 75, 724 P.2d 396, review denied, 107 Wash. 2d 1014 (1986). However, failure to exhaust the contractual grievance procedure may be excused in some situations, such as when the employee's union has breached its duty to fairly represent the employee, Vaca, 87 S. Ct. at 914, or when resort to the grievance procedure would be futile. Moran, 45 Wash. App. at 77-78.

Mr. Ervin argues resort to the contractual grievance procedure would have been futile. He first points out that the collective bargaining agreement itself limits wage claims to the 30 days before the date when the employer is notified of the claim. Indeed, the record contains a letter from the union to Columbia's president indicating any grievance regarding overtime pay would be limited to 30 days. This letter does not prove the contractual remedy would be futile; in fact, it proves the opposite: If Mr. Ervin had timely raised his overtime grievance as required by the contract, it appears the contractual grievance procedure would have provided a remedy. *fn3

Mr. Ervin also contends the grievance procedure would have been futile because Columbia had demonstrated a policy of harassing employees who filed grievances until they quit, or of terminating them on pretextual grounds. Other than his own conclusory allegation regarding an unnamed former Columbia employee, there is no support for this argument in the record. Moreover, the collective bargaining agreement provides for termination only upon "just cause," and any retaliatory action by Columbia would itself have been a legitimate issue for a contractual grievance.

Mr. Ervin has failed to establish that resort to the collective bargaining agreement's grievance process would have been futile. His failure to exhaust that ...


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