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Killian v. Seattle Public Schools

Supreme Court of Washington, En Banc

October 12, 2017


          MADSEN, J.

         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.

         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.


         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.

         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.

         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.

         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.

         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.

         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.

         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.

         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.

         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 Wn.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. This court accepted review. Killian v. Seattle Pub. Schs., 187 Wn.2d 1016, 388 P.3d 762 (2017).


         We review summary judgment de novo. Allen v. State, 118 Wn.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 Wn.2d 798, 803, 23 P.3d 477 (2001).

         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 Wn.2d 163, 167, 86 P.3d 774 (2004) (citing City of Yakima v. Int'lAss 'n of Fire Fighters, 117 Wn.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 Wn.2d 361, 371-22, 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 (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 duty of fair representation. That duty is breached "when a union's conduct is discriminatory, arbitrary, or in bad faith." Lindsey v. Municipality of Metropolitan Seattle, 49 Wn.App. 145, 148, 741 P.2d 575 (1987) (citing Allen, 100 Wn.2d at 375). Courts give great deference to a union's decisions regarding processing grievances because unions must balance the interests of the aggrieved individuals with the interests of the collective. Id. at 149 (citing Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985)).

         Generally, we apply the discovery rule to determine when a statute of limitations begins to run. Under that rule, "a cause of action accrues when the plaintiff knew or should have known the essential elements of the cause of action: duty, breach, causation and damages." Allen, 118 Wn.2d at 757-58. A plaintiff must use due diligence to discover the basis for the cause of action. Id. at 758. The cause of action will accrue on the date that the plaintiff, through exercise of due diligence, should have discovered the basis for the cause of action, even if actual discovery did not occur until later. Id. "The key consideration under the discovery rule is the factual, not the legal, basis for the cause of action." Id.

         Petitioners' negligent and unauthorized practice of law and CPA claims are subsumed in their DFR claim

         The first issue in this case examines the type of claim petitioners are raising against the union. Specifically, the issue is whether petitioners' claims against IUOE for conduct arising from IUOE's representation of petitioners in the collective bargaining process are subsumed in the DFR claim. The federal courts, which we look to for guidance when the NLRA is similar to the PECBA, have found that claims arising out of the union's representation are subsumed in a DFR claim.

         Peterson is the leading case from the federal courts. In that case, Peterson's breach of duty claim was based on allegations that the union, through its attorney representatives, erroneously advised him to file an injury grievance. 771 F.2d at 1252. Peterson sued the union and two of its attorneys. But the Ninth Circuit held that the malpractice claims against the union attorneys were subsumed in the DFR claim against the union. Id. at 1256. According to the Ninth Circuit, "sound policy reasons as well as established precedent compel the conclusion that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process." Id. Citing to Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the court highlighted that it has long been recognized that union officers and employees are not individually liable for acts they perform as representatives of the union in the collective bargaining process. Id.

         Peterson argued that the court should create an exception to the Atkinson rule for union employees who happen to be attorneys. Id. at 1257. But the court declined to do so. The court emphasized that when the union is providing services in the collective bargaining process, it is the union, not the individual agent or attorney, that represents and is ultimately responsible to the member. Id. at 1258. Peterson further stated that liability for individual conduct could arise outside of the DFR if the services that the attorney provides are "wholly unrelated to the collective bargaining process, " such as drafting a will, handling a divorce, or litigating a personal injury suit. Id. at 1259. Finally, the Peterson court emphasized that policy reasons supported its decision to hold that union attorneys are not subject to malpractice liability for collective bargaining activity. First, negligence is the essence of a malpractice action, but negligence is insufficient to support a breach of DFR. Thus, certain union employees-namely, attorneys-would be held to a higher standard than the union itself. Id. Second, permitting such malpractice actions would allow litigants to proceed against a union long after the expiration of the statute of limitations for suits against the union for DFR. Id.

         Like in Peterson, McBee was acting as an agent of the union, providing services in the collective bargaining process. Petitioners argue that the protection of Peterson should not apply because they allege that McBee acted outside of the scope of the CBA. But, even viewing the evidence in the light most favorable to petitioners, McBee did not act outside the scope of his role under the CBA. Petitioners assert that McBee worked to negotiate a resolution of their civil claims, but this reflects a misunderstanding of the relationship between the parties and claims in PERC mediation. McBee was there to negotiate the union's grievance. The union owns the grievance, not the individual. It was also the union's decision to pursue a grievance; petitioners could not have pursued the grievance through PERC mediation. McBee did what the CBA authorizes him to do: he negotiated a resolution to the union's grievance. IUOE agreed to settle their grievance with SPS in exchange for SPS offering the proposed settlement to petitioners. Petitioners were free to accept or reject that settlement. If they rejected the settlement, they were then free to pursue their claims against SPS in superior court, which they did. But McBee was never negotiating petitioners' individual claims because PERC mediation is not about the individual claims, it is about the union's grievances. McBee settled only the union's grievances. Therefore, petitioners can claim that McBee did not fairly represent them because the union should not have settled the union grievance in exchange for what SPS offered. But that is a DFR claim, not some other claim outside the scope of the CBA. We hold that when a union representative acts on behalf of the union in the collective bargaining process, the cause of action lies against the union itself as a DFR claim.

         Our holding is consistent with how other state and federal courts have ruled. See, e.g., Weiner v. Beatty, 121 Nev. 243, 246-50, 116 P.3d 829 (2005) (no action against attorney provided by union because attorney is union's agent and union owes only DFR); Brown v. Maine State Emp 'rs Ass 'n, 690 A.2d 956, 959-60 (Me. 1995) (union agents are not personally liable for actions taken in collective bargaining process; negligently missing a filing deadline is within the contours of the DFR); Best v. Rome, 858 F.Supp. 271, 274-76 (D. Mass. 1994) (claims against union attorney for breach of fiduciary duty, malpractice, intentional infliction of emotional distress, and state law governing union representative conduct are subsumed into DFR claim against union, despite no express immunity in state law), aff'd, 47 F.3d 1156 (1st Cir. 1995); Hussey v. Operating Eng'rs Local Union No. 3, 35 Cal.App.4th 1213, 1219-20, 42 Cal.Rptr. 2D 389 (1995) (analyzing claims against union and agent for negligence, breach of fiduciary duty, and negligent infliction of emotional distress as DFR claim).

         Because we find that petitioners' negligent and unauthorized practice of law and CPA claims are subsumed in their DFR claim against IUOE, we do not address the merits of either of those claims.

         The six-month statutes of limitation in RCW 41.56.160(1) and RCW 41.80.120(1) do not apply to unfair labor ...

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