Roland Killian & Dennis Bailey v. International Union Of Operating Engineers, Resp

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ROLAND KILLIAN; DENNIS BAILEY and
DEBRA BAILEY, No. 74024-5-1

Appellants, DIVISION ONE

v. PUBLISHED OPINION

INTERNATIONAL UNION OF
OPERATING ENGINEERS LOCAL 609-A,

Respondent,

SEATTLE PUBLIC SCHOOLS, a
municipal corporation,

Defendant. FILED: August 22, 2016

Appelwick, J. — The trial court dismissed Killian and Bailey's lawsuit

against Local 609 for breach of the duty of fair representation and the

unauthorized practice of law as time barred. It denied their motion to amend the

pleadings to add a Consumer Protection Act1 claim. Killian and Bailey's claims

against Local 609 all flow from conduct of the union representative in the course

of the grievance procedure provided in their collective bargaining agreement.

Chapter 19.86 RCW.
No. 74024-5-1/2

These claims are subsumed in the duty of fair representation. The claims were

not timely filed. We affirm.

FACTS

Roland Killian and Dennis Bailey (appellants) were employed by Seattle

Public Schools (SPS). Killian worked as a grounds foreman, overseeing school

grounds personnel and other gardeners. Bailey was a grounds worker and

gardener. The appellants were both members of the International Union of

Operating Engineers, Local 609-A (Local 609). Local 609 is the collective

bargaining unit for employees of SPS, including grounds employees.

On September 7, 2011, SPS sent the appellants letters informing them

they were being placed on administrative leave because of allegations that they

were misusing SPS resources. On December 18, 2012, SPS informed the

appellants that it concluded there was proper cause to terminate their

employment for misconduct. It told the appellants that their employment would

be terminated effective December 27, 2012. SPS noted that the appellants could

appeal the termination decision through the grievance procedure provided in the

collective bargaining agreement (CBA).2

Local 609 filed grievances on behalf of the appellants, alleging they were

disciplined without just cause and progressive discipline in violation of the CBA.

2 Article XVIII of Local 609's CBA outlines the grievance procedure. The
grievance process is divided into steps—Step 1, Step 2, Step 3, and Step 4. If a
grievant remains unsatisfied and reaches Step 4, the grievant may request
mediation or alternative dispute resolution. If the grievance is not settled to the
grievant's satisfaction, the grievance may then be submitted to final and binding
arbitration. The arbitration is conducted by an arbitrator under the rules of the
Public Employment Relations Commission.
No. 74024-5-1/3

Local 609 representative Mike McBee represented the appellants during the CBA

grievance process. In March 2013, the appellants sought the assistance of

outside counsel to pursue individual civil claims against SPS. SPS denied the

grievances at Steps 1 through 3. After SPS denied the grievances at Step 3,

McBee proposed mediation. The appellants expressed concern to McBee about

how the mediation would affect their individual civil claims. McBee told the

appellants that the mediation was intended to address only the union claims. He

also told them that their outside counsel was not allowed to participate in the

mediation.

On June 13, 2013, SPS and Local 609 filed a joint grievance mediation

request with the Washington Public Employment Relations Commission (PERC).

The parties proceeded to mediation with PERC. McBee was present at the

mediations. Mediation began on August 5, 2013. The first day of mediation

ended without settlement after SPS offered a monetary settlement much lower

than what was sought. On September 9, 2013, the second day of mediation,

SPS made higher monetary offers to the appellants, but the appellants rejected

them. That same day, McBee presented SPS's monetary offers to settle the

grievances to Local 609's executive board. At this time, the board voted to move

the grievances to arbitration, but it reserved the right to rescind that decision if

SPS improved its settlement offer. McBee informed the appellants that the board

had voted to proceed to arbitration, but that Local 609 would consider accepting

a higher settlement offer from SPS in the future.
No. 74024-5-1/4

On September 17, 2013, after the two unsuccessful mediation attempts,

SPS offered to settle Local 609's grievances and pay $100,000 to Killian and

$75,000 to Bailey if each of them would agree to release all legal claims against

SPS. That day, McBee suggested to board members that Local 609 should

accept SPS's offer and not proceed to arbitration. He noted that the settlement

offer was the largest offer he had seen from SPS for one of its members.

McBee's e-mail also stated:

I have calls into both grievants but remember, the grievance
belongs to the union and we decide to proceed or not. I will be
recommending to both of them that they consult their attorney
before deciding to accept o[]r reject their individual offers. If they
reject, and it's up to them, they can pursue their claims in court.
The board voted to settle the grievances and not proceed to arbitration in

exchange for SPS extending the offer to the appellants.

That same day, outside counsel for the appellants, Chellie Hammack,

wrote to counsel for Local 609, Kathleen Phair Barnard, summarizing various

conversations that the two attorneys had in the past regarding the appellants'

claims. Hammack also summarized conversations she had with her clients.

Hammack stated that she had previously expressed concern that SPS might

attempt to engage the appellants in a discussion that included settlement of all of

their claims during the mediation process. She noted that she reviewed a draft

settlement agreement after one of the mediation sessions, and it was clear that

SPS was attempting to resolve the appellants' individual civil claims. Hammack

stated that McBee never told her clients to notify her when the issue of waiver of

civil claims arose at the mediation. She further stated that McBee had informed
No. 74024-5-1/5

her clients that if they did not accept the settlement offer from SPS, Local 609

would decline to represent them further and would not pursue arbitration on their

behalf. And, that the appellants felt pressured to accept the offers. She stated

she believed that Local 609's conduct was inappropriate, and that she had the

right to be contacted if and when her clients' individual civil claims were involved

in the settlement discussions.

Local 609 and SPS entered into a settlement agreement on September

24, 2013. The appellants refused SPS's final settlement offers. When Hammack

contacted SPS to discuss the possible settlement of the appellants' individual

civil claims, SPS indicated that it had already extended an offer of resolution of

those claims to Local 609, and it was not interested in pursuing further

discussions.

On May 29, 2014, Bailey and Killian filed complaints against both Local

609 and SPS, and the cases were later consolidated. The appellants brought a

claim of unlawful discrimination3 and a claim of breach of contract against SPS.

And, they alleged that Local 609 had breached its duty of fair representation

(DFR) and had negligently engaged in the unauthorized practice of law. On May

29, 2015, Local 609 moved for summary judgment, alleging that all of the

appellants' causes of action were encompassed by Local 609's DFR claim. It

asserted that the statute of limitations period for DFR claims is six months and

that the appellants' claims were consequently time barred. On June 29, 2015,

the appellants moved to amend their complaint to include a Consumer Protection

3 Bailey's complaint also included a claim of retaliation against SPS.
No. 74024-5-1/6

Act4 (CPA) claim. On August 4, 2015, the trial court granted Local 609's motion

for summary judgment. The trial court also denied the appellants' motion to

amend, reasoning that any CPA claim would in substance be a DFR claim that

would be barred by the applicable statute of limitations.

The appellants appeal.

DISCUSSION

The appellants argue that the trial court erred when it granted Local 609's

motion for summary judgment based on the statute of limitations. They assert

that even iftheir claims are all effectively DFR claims, the statute of limitations for

those claims is two years, rendering their lawsuit timely. Finally, they contend

that even if the statute of limitations period is six months, summary judgment is

improper. They maintain this is so, because there are genuine issues of material

fact about whether the appellants failed to file their action within the statute of

limitations period.

The trial court granted Local 609's summary judgment motion as to all of

the appellants' claims on the basis of the statute of limitations. Therefore, it was

presumably persuaded by Local 609's argument that the appellants'

unauthorized practice of law claims were subsumed by their DFR claims as a

matter of law and that a six month statute of limitations applied to all of the

claims.

This court reviews summary judgment orders de novo. Hadlev v. Maxwell,

144 Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate

Chapter 19.86 RCW.
No. 74024-5-1/7

only where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn.

App. 306, 310, 44 P.3d 894 (2002). When considering the evidence, the court

draws reasonable inferences in the light most favorable to the nonmoving party.

Schaafv. Hiqhfield. 127 Wn.2d 17, 21, 896 P.2d 665 (1995).

I. Unauthorized Practice of Law and CPA Claims

The appellants argue that their unauthorized practice of law and CPA

claims are not subsumed in their DFR claims, because those causes of action

are separate and distinct from their DFR claims. Consequently, they argue that

applying the statute of limitations for a DFR claim is not appropriate. Instead, the

appellants cite to RCW 4.16.080(2) and contend that the statute of limitations for

their negligent and unauthorized practice of law claim is three years. And, they

cite to RCW 19.86.120 and claim that the statute of limitations for their CPA claim

is four years. Thus, whether the appellants' other claims are subsumed in their

DFR claim determines which statute of limitations applies and whether the

appellants' claims are time barred.

In Washington, the Public Employees' Collective Bargaining Act (PECBA),

chapter 41.56 RCW, governs CBAs with state public employers. Navlet v. Port of

Seattle, 164 Wn.2d 818, 828, 194 P.3d 221 (2008). Unions have a duty under

Washington state law to fairly represent their members—the duty of fair

representation (DFR). Lindsev v. Mun. of Metro. Seattle, 49 Wn. App. 145, 148,

741 P.2d 575 (1987). In the context of grievance processing, the DFR prohibits a

union from ignoring a meritorious grievance or processing that grievance
No. 74024-5-1/8

perfunctorily. Jd., at 149. A union must exercise special care in handling a

grievance that concerns a discharge, because it is the most serious sanction an

employer can impose, jd However, unions need not arbitrate every case. jd.

Courts should accord substantial deference to a union's decisions regarding

grievance processing, because a union must balance collective and individual

interests in making these decisions. \_± The collective bargaining system by its

very nature subordinates the interest of an individual employee to the collective

interests of all the employees in the bargaining unit. jd. The DFR is breached

when a union's conduct is discriminatory, arbitrary, or in bad faith. Id. at 148.

While federal law generally preempts the field of labor law, it does not

govern over CBAs with state public employers. Navlet, 164 Wn.2d at 828. But,

this court may look to the interpretation of federal labor law where the law is

similar to state law. Id. at 828-29: Allen v. Seattle Police Officers' Guild, 100

Wn.2d 361, 372, 670 P.2d 246 (1983). Here, the parties rely predominantly on

federal case law.

Local 609 cites to the Ninth Circuit case, Peterson v. Kennedy, 771 F.2d

1244 (9th Cir. 1985), to support its assertion that the appellants' claims are

subsumed in their DFR claims. Peterson concerned a legal malpractice claim

against a union-employed attorney. Id. at 1251. The plaintiff-employee claimed

that the union attorney remained subject to liability for professional malpractice

independent of the union's potential liability for breach of its DFR. Id. at 1256.

The Peterson court rejected this argument, and held that legal malpractice claims

against union attorneys were subsumed as DFR claims against the union. Id.

8
No. 74024-5-1/9

In holding that the plaintiffs legal malpractice claims against the union

attorney were subsumed, the Peterson court began with a discussion of the

Atkinson5 rule. Id In Atkinson, the United States Supreme Court held that

individual damage claims may not be maintained against union officials for acts

that are undertaken on behalf of the union. Peterson, 771 F.2d at 1256. The

basis of the rule is that historically, only the union was to respond for union

wrongs. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 247-48, 82 S. Ct. 1318,

8 L. Ed. 2d 462 (1962). And, in Peterson, the court stated that the Atkinson rule

applies to and bars malpractice claims against attorneys representing the union.

]g\ at 1258. The court reasoned that where the attorney performs a function in

the collective bargaining process that would otherwise be assumed by the

union's business agents or representatives, the rationale behind the Atkinson

rule is applicable, jd.

The appellants claim that Peterson is not applicable in this case, because

the issue before the court in that case was different. In Peterson, the plaintiff-

employee brought DFR claims against the union, but the legal malpractice claims

against only the union attorney in his individual capacity. See id. at 1251, 1256.

Therefore, the Peterson court's discussion and reasoning surrounding whether

the plaintiff's legal malpractice claim was subsumed was in response to a

different question. The court was considering whether a legal malpractice claim

against an individual union attorney is subsumed in a DFR claim against a union

5 Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S. Ct. 1318, 8 L. Ed.
2d 462 (1962).
No. 74024-5-1/10

that alleges the union, through its representatives, gave erroneous advice. Id at

1251.

We acknowledge that Peterson is factually distinguishable in this regard.

Here, the appellants' lawsuit was filed against the union itself rather than an

individual union employee. Still, we find the Peterson court's reasoning

instructive here. The Peterson court specifically based the rule it was adopting—

that a union attorney is not subject to individual liability for acts performed on

behalf of the union in the collective bargaining process—on a functional

assessment of the attorney's role as a union representative within the collective

bargaining process. Id at 1259. Notably, the court went on to say:

Our decision does not mean that union members are
necessarily without a remedy when attorneys employed by the
union fail to process grievances adequately. If an attorney's
conduct falls within the "arbitrary, discriminatory or bad faith"
test... the union member may sue the union for breach of the duty
of fair representation.

|d at 1259. Thus, when the union attorney is performing acts on behalf of the

union in the collective bargaining process, the plaintiff's cause of action lies

against the union itself and it is a DFR claim.

The appellants also attempt to distinguish Peterson, by claiming that Local

609's actions were not within the scope of the collective bargaining process,

because they were not authorized by the CBA.6 In a light most favorable to the

6 The only authority the appellants cite to support this assertion is an
unpublished Ninth Circuit opinion issued in 2000. Therefore, we do not consider
it. See GR 14.1(b) (a party may cite an unpublished opinion as authority only if
citation to that opinion is permitted under the law of the jurisdiction of the issuing
court); FRAP 36.3 (stating that unpublished dispositions in the Ninth Circuit

10
No. 74024-5-1/11

appellants, the allegations for the unauthorized practice of law claim amount to

the following: Local 609 engaged in the unlawful practice of law when it

negotiated a settlement of the appellants' civil claims, advised the appellants that

the amount offered for resolution of those claims was fair and reasonable,

advised the appellants to accept the settlement offer, and participated in and/or

approved the drafting of the settlement agreement that provided for resolution of

all of the appellants' claims and set out an amount of damages and costs

associated with their individual civil claims. The basis of the appellants' CPA

claim is that the allegations supporting the unauthorized practice of law claim

also support a CPA claim.

Like in Peterson, McBee represented the union. All of the allegedly

improper acts by Local 609 occurred within the collective bargaining mediation

process between the appellants and SPS. Any alleged harm flowed from Local

609's settlement with SPS and the termination of the grievance process. The

unauthorized practice of law claim is a legal negligence claim as was the claim in

Peterson. What is different is that McBee was not an attorney. We hold that

when a nonattomey union representative is alleged to have engaged in the

unauthorized practice of law in the course of the grievance process under the

CBA, the Peterson rule applies.

Therefore, any unauthorized practice of law claim arising in the course of

the grievance procedure is subsumed in a DFR claim against the union. And,

issued before January 1, 2007 may not be cited except in limited circumstances
that do not apply here).

11
No. 74024-5-1/12

because the appellants' CPA claim is based on the appellants' unauthorized

practice of law claim, we conclude that their CPA claims are also subsumed in

the DFR claim against the union.7 All of the appellants' claims are subject to the

statute of limitations for DFR claims.

II. DFR Statute of Limitations

The appellants cite to RCW 4.16.1308 and assert that the proper statute of

limitations period for DFR claims is two years. By contrast, Local 609 cites to

Imperato v. Wenatchee Valley College, 160 Wn. App. 353, 247 P.3d 816 (2011)

and contends that the applicable statute of limitations period is six months.

In Imperato, Imperato filed an action in superior court almost eight months

after he was discharged, alleging breach of contract against his employer and a

DFR claim against his former union, jd at 356. The defendants filed a motion

for summary judgment, claiming that Imperato's action was barred by the statute

of limitations. Id at 357. The trial court granted summary judgment in favor of

the defendants. Id

In determining the applicable statute of limitations for Imperato's claims,

the Imperato court noted that the DFR claims should be treated as unfair labor

claims under Washington law. Id at 360. It noted that unfair labor practice

7 Because we reach this conclusion, the trial court did not abuse its
discretion when it denied the appellants' motion to amend their complaint to add
CPA claims. See Ino Ino. Inc. v. City of Bellevue, 132 Wn.2d 103, 142, 937 P.2d
154, 943 P.2d 1358 (1997) (stating that a trial court does not abuse its discretion
when it denies a motion to amend because the new claim is futile or untimely).
8 RCW 4.16.030 is a catch-all provision that provides a two year statute of
limitations for those claims not referenced elsewhere by the legislature. Imperato
v. Wenatchee Valley College, 160 Wn. App. 353, 360, 247 P.3d 816 (2011).

12
No. 74024-5-1/13

claims are addressed by a six month statute of limitations set forth in RCW

41.56.160(1) and RCW 41.80.120(1). id at 360-61. But, that those statutes only

establish the statute of limitations for unfair labor practice claims that are

specifically filed with PERC. Id at 355-56, 361. Thus, the Imperato court was

tasked with deciding which statute of limitations applies when a union employee

files directly in superior court instead of with PERC. Id at 361.

The court noted that the statutes were silent as to whether unfair labor

practice claims filed in superior court were subject to the statute of limitations

contained in RCW 41.56.160(1) and RCW 41.80.120(1). jd at 362. But, the

Imperato court ultimately held that the six month statute of limitations applies to

DFR claims filed directly in superior court. Id at 364. It reasoned that

application of the six month statute of limitation period to DFR claims would serve

several important policies: (1) It would prevent piecemeal litigation; (2) Applying a

different statute of limitations to DFR claims filed in superior court would frustrate

the role of PERC in promptly resolving labor disputes; and (3) It would provide

consistency, because federal law also establishes a six month statute of

limitations, jd In so holding, the Imperato court rejected the argument that it

should apply the three year statute of limitations in RCW 4.16.080, the six year

statute of limitations for breach of a written agreement in RCW 4.16.040, or the

two year statute of limitations in RCW 4.16.130. ]d at 362, 364.

The appellants do not attempt to distinguish Imperato. Instead, they

merely argue that "the two year statute of limitations [in RCW 4.16.130] is the

most appropriate and . . . [the] Imperato decision is in error." They argue that

13
No. 74024-5-1/14

had the legislature intended DFR claims to be subject to the six month statute of

limitations, it would have done so explicitly by statute. We adhere to Imperato.

To the extent the appellants' claims are considered DFR claims, they are subject

to a six month statute of limitations period.

III. Expiration of the Statute of Limitations

The appellants argue that even accepting the six month statute of

limitations period, there are issues of material fact surrounding when the statute

of limitations period began. They assert that a discovery rule applies and when

they knew or reasonably should have known of all the essential elements of their

causes of action is a question of fact for the jury.

The appellants cite to Ninth Circuit case law to support their assertion.

Federal law dictates that the statute of limitations begins to run when an

employee knows or should know of the alleged breach of DFR. Harris v. Alumax

Mill Prod., Inc., 897 F.2d 400, 404 (9th Cir. 1990). In Harris, the court

determined that this date for a federal DFR claim was no later than the date on

which the employee was informed by a union representative that the union would

not be pursuing a grievance on his behalf. Id. The appellants do not cite to any

Washington state cases explicitly discussing when state DFR causes of action

accrue. But, they assert that under Washington law, the common law discovery

rule applies to all statutes of limitations in the absence of legislation limiting the

application of the rule. Under Washington's common law discovery rule, a cause

of action accrues when a claimant knows, or in the exercise of due diligence,

should have known all the essential elements of the cause of action. Funkhouser

14
No. 74024-5-1/15

v. Wilson, 89 Wn. App. 644, 666-67, 950 P.2d 501 (1998), affirmed by C.J.C. v.

Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 985 P.2d 262 (1999).

The appellants emphasize that there are issues of material fact

surrounding when they had reasonable notice that Local 609 was no longer

pursuing their grievances and when they knew of all essential elements of the

cause of action. The appellants point the court to several facts in the record that

they claim show they were confused about whether Local 609 was going to

advance the grievances to arbitration.

Local 609 responds that Hammack's September 17, 2013 letter to Barnard

illustrates that the appellants and Hammack knew on that date. In that letter,

Hammack stated,

Today, after meeting with both my clients to discuss the issues, and
after our discussion, Mr. McBee called my clients again extending
an offer made by SPS. Further, Mr. McBee told both of my clients
that if they did not accept the offers extended the union would
decline to represent them further and would not pursue an
arbitration on their behalf.

But, Hammack also noted that McBee was trying to pressure the appellants into

settling their civil claims without the benefit of counsel. And, she noted that

Barnard had promised to make sure that Hammack was notified if settlement of

the civil claims was involved. Consequently, she concluded the letter by stating

that she needed clarification of the union's position. Local 609 maintains that

even if the September 17 letter is insufficient to establish knowledge, October 12,

2013 would be the next appropriate date—when Bailey heard the final

announcement that Local 609 would not be advancing their claims to arbitration.

15
No. 74024-5-1/16

But, the appellants claim that, to date, they have not received a written

notice about the status of their grievance. The appellants cite to no legal

authority to support their implicit assertion that only written notice triggers the

knowledge required for the statute of limitations to run. And, even if written

notice was required, on October 18, 2013, Barnard wrote to Hammack and

stated,

In my letter of October 16, 2013, I detail the two
communications191 you sent me on September 17, 2013,
acknowledging that you knew that Local 609 had decided not to
proceed to arbitration. Your assertions establish your knowledge.
Your latest letter asks that the Union put its position in writing. My
October 16I101 letter did that already.

This written communication left no room for doubt about notice of the union's

position.

Therefore, even assuming the statute of limitations did not begin to run

until Local 609 provided the appellants with written notice, and even assuming

that written notice was not adequately provided until October 18, 2013, the

appellants' action is still untimely. The appellants filed their complaints on May

29, 2014. At the very least, the appellants' complaints were filed over a month

after the expiration of the six month statute of limitations period.11

9 The second September 17 communication referenced in the October 16
letter is a voicemail from Hammack.
10 This letter told Hammack that she had known since September 17, 2013
that Local 609 had decided to accept SPS's offer to settle the two grievances.
And, that the appellants were notified on that date that whether or not they
agreed with the settlement, Local 609 had agreed to the settlement and would
not proceed to arbitration.
11 By October 18, 2013, Local 609 had already engaged in all of the
allegedly improper legal advice. Therefore, to the extent the appellants had
viable DFR causes of action against the union based on earlier "unauthorized"

16
No. 74024-5-1/17

Finally, the appellants assert that the statute of limitations is subject to

tolling based on a provision in the CBA. And, the appellants assert that even if

the statute of limitations in this case ran, equitable tolling and/or estoppel applies

here. The appellants base these arguments on the contention that Local 609's

actions in pursuing their grievances were contradictory. And, that they were

never provided with any written notices of any deadlines or the outcome of their

grievances despite repeated requests. Again, the appellants cite to no authority

to support the proposition that Local 609 had to provide written notice of its

decision about the grievances. And, Barnard's October 18 letter unequivocally

reiterated that Local 609 would not be pursuing arbitration. Therefore, we reject

the appellants' arguments regarding tolling.

We affirm.

WE CONCUR:

L~Jj.

legal advice, the statute of limitations for those claims would also have certainly
expired prior to the filing of the appellants' complaints.

17