Killian v. Seattle Pub. Schs.

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ROLAND KILLIAN,
No. 93655-2
Petitioner,

V.

SEATTLE PUBLIC SCHOOLS,a municipal
eorporation.

Defendant,

INTERNATIONAL UNION OF
OPERATING ENGINEERS,LOCAL 609-A,

Respondent.
En Banc
DENNIS BAILEY and DEBRA BAILEY,

Petitioners,

V.

SEATTLE PUBLIC SCHOOLS,amunieipal
corporation.

Defendant,

INTERNATIONAL UNION OF
OPERATING ENGINEERS,LOCAL 609-A,

Respondent. Filed 0^-^ ^ 2 20]
No. 93655-2

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 (lUOE). 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 lUOE are subsumed within their claims that

lUOE 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 oflUOE's representation are subsumed into a

DFR claim against lUOE 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.

FACTS

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 oflUOE, which is the collective bargaining unit for SPS employees.
No. 93655-2

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. lUOE 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 ofthe grievance process(on

February 5, 2013, February 28, 2013, and March 29, 2013), so McBee proposed

mediation. On June 13, 2013, SPS and lUOE 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 withoutjust 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 ifthey would agree to release all

legal claims against SPS. Clerk's Papers(CP)61-62, 172-75. After McBee informed
No. 93655-2

lUOE's executive board ofthe offer, the board voted to settle lUOE's grievances with

SPS if SPS extended the offers to petitioners. According to McBcc, he repeatedly told

petitioners to discuss the settlement offers with their attorney. MeBee recommended to

the lUOE board that they accept SPS's offer and not proceed to arbitration. lUOE 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 lUOE,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 MeBee knew that no

release of civil claims would or should occur without Hammack's involvement.

Hammack ended her letter requesting clarification oflUOE'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," lUOE 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.
No. 93655-2

On October 12, 2013,lUOE held a regularly scheduled membership meeting that

Bailey attended. At the meeting, decisions by the lUOE 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 lUOE's counsel. In it, Hammack inquired as

to lUOE's position given that lUOE counsel expressed a willingness to extend the

grievance resolution deadline the day before it was announced that lUOE would no

longer be pursuing the grievances. On October 18, 2013, Barnard responded that her

earlier letter had put lUOE's position into writing, and Hammack's response

acknowledged that petitioners were aware that lUOE would not pursue arbitration.

Petitioners filed suit in superior court against SPS and lUOE on May 29, 2014.

The court consolidated their cases. Petitioners' allegations against SPS included

unlawful discrimination in violation ofROW 49.60.180 and breach of contract for

violating the CBA. SPS settled their claims with petitioners and were dismissed as

defendants before lUOE moved for summary judgment. Against lUOE,petitioners

alleged two claims in their complaint: breach ofDFR in violation ofRCW 41.56.080 and

negligent and unauthorized practice oflaw. Petitioners later moved to amend their

complaint to add a claim against lUOE under the CPA.

lUOE moved for summary judgment, alleging that all of petitioners' claims were

subsumed within their DFR claim, which lUOE alleged had a statute of limitations of

only six months. Because that six-month period had expired,lUOE argued that
No. 93655-2

petitioners' claims were time barred. Even assuming the date of Barnard's last letter, six

months had elapsed since petitioners became aware that lUOE would not pursue

arbitration. Petitioners opposed lUOE's motion for summary judgment. The court

granted lUOE'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 ofOperating 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 oflUOE. Id. at 514. This court accepted

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

ANALYSIS

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 ofSoap Lake, 143

Wn.2d 798, 803, 23 P.3d All (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
No. 93655-2

superior court." Wash. State Council ofCounty & City Emps. v. Hahn, 151 Wn.2d 163,

167, 86 P.3d 11A (2004)(citing City ofYakima v. Int'l Ass'n ofFire 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 offair

representation evolved as a judicial response to the broad power granted to unions as

exclusive representatives oftheir 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 ofMetropolitan 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 ofthe collective. Id. at 149 (citing Peterson v.

Kennedy, 111 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
No. 93655-2

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 ease examines the type of claim petitioners are raising

against the union. Specifically, the issue is whether petitioners' claims against lUOE for

conduct arising from lUOE'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 ease 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 ofthe 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
No. 93655-2

employees are not individually liable for acts they perform as representatives ofthe 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 ofthe 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 ofthe union, providing services in

the collective bargaining process. Petitioners argue that the protection ofPeterson should

not apply because they allege that McBee acted outside ofthe scope of the CBA. But,

even viewing the evidence in the light most favorable to petitioners, McBee did not act
No. 93655-2

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. lUOE 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. Ifthey 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 ofthe 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.Sd 829(2005)(no action against

attorney provided by union because attorney is union's agent and union owes only DFR);

10
No. 93655-2

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 ofthe DFR); Best v. Rome,858 F. Supp.

271,274-76(D. Mass. 1994)(claims against union attorney for breach offiduciary 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); Hiissey v. OperatingEng'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 offiduciary duty, and

negligent infliction of emotional distress as DFR claim).

Because we find that petitioners' negligent and unauthorized practice oflaw and

CPA claims are subsumed in their DFR claim against lUOE, 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 applv to unfair labor practice claims filed in superior court

The second issue in this case is whether petitioners timely filed their claims.

lUOE moved for summary judgment based on the statute of limitations, and that is the

ground on which the trial court granted summary judgment. Based on the plain language

ofthe statutes, we hold that the six-month statutes of limitation in RCW 41.56.160(1) and

RCW 41.80.120(1) do not apply to petitioners' claims because they filed the claims in

superior court. And under the applicable statute of limitations, petitioners timely filed

11
 No. 93655-2

their claims. Therefore, the trial court erred in granting summary judgment on that

ground.

lUOE argues, as it did successfully in the Court of Appeals, that the six-month

statutes of limitation found in RCW 41.56.160(1) and RCW 41.80.120(1) apply to bar

petitioners' claims. RCW 41.56.160(1) and RCW 41.80.120(1) provide:

The commission is empowered and directed to prevent any unfair labor
practice and to issue appropriate remedial orders: PROVIDED,That a
complaint shall not be processed for any unfair labor practice occurring
more than six months before the filing of the complaint with the
commission. This power shall not be affected or impaired by any means of
adjustment, mediation or conciliation in labor disputes that have been or
may hereafter be established by law.t'l
The statutes thus set a six-month limitation for unfair labor practice claims^ filed with

PERC. But the statutes do not refer to unfair labor practice claims filed in superior court.

We have recognized that PERC has both expertise and authority to rule on unfair

labor complaints, but "this expertise and authority do not divest the superior courts of

jurisdiction in all cases to resolve unfair labor practice complaints which involve

interpretation of public employee collective bargaining statutes." City ofYakima, 117

Wn.2d at 675. When the legislature expresses one thing in a statute, we infer that

omissions are exclusions. In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597

'Chapter 41.56 RCW applies to public employees' collective bargaining, whereas chapter 41.80
RCW refers to state collective bargaining. The text of RCW 41.56.160(1) and RCW
41.80.120(1) is identical.
^ "The NLRB has consistently held that all breaches of a union's duty offair representation are
in fact unfair labor practices." DelCostello v. Int'l Bhd. ofTeamsters, 462 U.S. 151, 170, 103 S.
Ct. 2281, 76 L. Ed. 2d 476(1983). None of the parties appears to dispute that DFR claims are
unfair labor practice claims. So we assume, without deciding, that they are.

12
No. 93655-2

(2002) Landmark Dev., Inc. v. City ofRoy, 138 Wn.2d 561, 571, 980 P.2d 1234

(1999); State v. Williams, 29 Wn. App. 86, 91, 627 P.2d 581 (1981)). If the legislature

intended for the statutes of limitation set forth in RCW 41.56.160(1) and RCW

41.80.120(1) to apply to claims filed both with PERC and in superior court, it would not

have included only those complaints filed "with the commission." The plain language of

these statutes dictates that they apply only to claims filed with PERC, and we will not

read additional language into a statute that the legislature did not write. Rather than

assuming that RCW 41.56.160(1) and RCW 41.80.120(1) limit the superior court's

power to hear unfair labor practice claims, we hold that the statutes do what the plain

language says: authorize PERC to hear unfair labor practice claims, so long as those

claims are not older than six months.

In Imperato v. Wenatchee Valley College, Division Three of the Court of Appeals

addressed the statute of limitations question that this case raises. 160 Wn. App. 353, 247

P.3d 816 (2011), review denied, 171 Wn.2d 1033, 257 P.3d 664(2011). There, the Court

of Appeals held that the applicable statute of limitations for the breach of contract and

DFR claim is six months. Id. at 356. Because the plaintiff filed his claims in superior

court more than six months after the union declined to file a grievance, the superior court

properly granted the union's motion for summary judgment based on the statute of

limitations. Id. To reach this conclusion, the Court of Appeals first found that

Imperato's claim for breach of contract and DFR was an unfair labor practice claim,

relying on this court's decisions in Allen, 100 Wn.2d at 371-72, and Wright v. Terrell,

13
No. 93655-2

162 Wn.2d 192, 196, 170 P.3d 570(2007). Imperato, 160 Wn. App. at 359-60. As an

unfair labor practice claim, RCW 41.56.160(1) and 41.80.120(1) set forth a six-month

statute of limitations. Id. at 360-61. Imperato also argued that the statutes outlining the

six-month period are direeted only at claims filed with PERC, which should not apply to

claims filed in superior eourt. The Court of Appeals rejected this argument and found

that the six-month statute of limitations applies whether filed with PERC or in the

superior court. Id. at 361. Although the Court of Appeals recognized that the plain

language ofthe statutes applies only to claims filed with PERC and the statutes are silent

as to elaims filed in superior court, it nonetheless relied on policy and context to conclude

that the six-month period also applies to elaims filed in superior court. Id. at 361-63.

According to the Court of Appeals, applying the six-month limitation would prevent

piecemeal litigation, impose a greater degree of certainty and fairness to the proeess,

align with the role ofPERC in promptly adjudicating and resolving labor disputes, and be

consistent with federal law. Id. at 364. We xQ]QCt Imperato because it departs from the

plain language ofRCW 41.56.160(1) and RCW 41.80.120(1).

Further, the policy rationales on which Imperato and the Court of Appeals in this

case rely are overstated. Echoing the reasoning in Imperato, the Court of Appeals

explained that applying the six-month limitation to all DPR elaims would serve several

important policies: "(1)It would prevent piecemeal litigation,(2) applying a different

statute of limitations to DPR elaims filed in superior court would frustrate the role of

PERC in promptly resolving labor disputes, and (3)it would provide consisteney.

14
No. 93655-2

because federal law also establishes a six month statute of limitations." Killian, 195 Wn.

App. at 523 (citing Imperato, 160 Wn. App. at 364).

Applying the six-month limitation would not necessarily prevent piecemeal

litigation because such litigation can be inevitable in cases like this. PERC has

jurisdiction to hear only unfair labor practice claims. RCW 41.80.120(1). Actions by

employers and employee organizations that are "unfair labor practices" are enumerated

by statute. See RCW 41.80.110(1),(2)(defining "unfair labor practiee[s]"). Not all of

petitioners' claims could have been brought before PERC. For example, petitioners

alleged unlawful discrimination against SPS in violation ofRCW 49.60.180, a claim not

included in RCW 41.80.110. CP at 9, 981.

Similarly, petitioners could not have filed their DFR claims against lUOE with

PERC. PERC has jurisdiction over unfair labor practices, but it does not assert

jurisdiction in DFR eases arising from the union's actions in processing a claim under a

CBA. James v. Amalg. Transit Union Local 1765, Decision 12172, 2014 WL 5149996

(Wash. Pub. Emp't Relations Comm'n Get 1, 2014). PERC asserts jurisdiction in DFR

eases only when an employee alleges that the union has aligned itself in interest against

the employees based on invidious discrimination. Id. (citing Heitman v. Seattle Police

Officers' Guild, Decision 11291-A, 2012 WL 2885472(Wash. Pub. Emp't Relations

Comm'n July 11, 2012)). Petitioners' DFR claims arise from lUOE's processing of their

claims under the CBA and not invidious discrimination.

15
No. 93655-2

We also doubt that applying a longer limitation period to claims filed in superior

court would undermine PERC's role in promptly resolving labor disputes. PERC still

operates with the six-month limitation. And unions, employers, and individual

employees remain free to take advantage ofthe quick process that PERC offers for

resolving unfair labor disputes. Simply because there are two paths of dispute resolution,

which we have said coexist, does not mean that one undermines the other. PERC will

maintain its role in promptly resolving unfair labor practice disputes even ifthe process

in superior court operates on a different timeline.

Additionally, there are sound reasons to depart from the federal law on this issue.

Under the NLRA,the National Labor Relations Board(NLRB)has authority to hear

unfair labor practice complaints provided that "no complaint shall issue based upon any

unfair labor practice occurring more than six months prior to the filing ofthe charge with

the [NLRB]." 29 U.S.C. § 160(b). And the United States Supreme Court has expanded

that limitation to claims not filed with the NLRB. In DelCostello v. International

Brotherhood ofTeamsters, the Court held that the six-month limitation from the NLRA

applies to what they call "hybrid claims." 462 U.S. 151, 165-71, 103 S. Ct. 2281, 76 L.

Ed. 2d 476(1983). Hybrid claims are those in which a plaintiff files suit in district court

against a union for breach of DFR and against the employer for breach of contract based

on the CBA. The Court in DelCostello highlighted the need for uniformity of procedure

for similar claims and the national interest in stable bargaining relationships. Id. at 171;

see also Peterson, 111 F.2d at 1259(describing as bringing "rationality and

16
No. 93655-2

symmetry" with respect to the timing for claims by union members that their grievances

were mishandled).

Unlike PERC,however, the NLRB asserts jurisdiction to hear DFR claims arising

from the union's actions in processing a claim under a CBA. See, e.g., DelCostello,462

U.S. at 170(citmg Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enforcement denied, 326

F.2d 172(2d Cir. 1963)); Steamfitters Local Union No. 342, 336 N.L.R.B. 549, 550-51

(2001). We look to how the federal courts have interpreted NLRA provisions when they

are substantially similar to our PECBA provisions. Even then, such decisions are

persuasive, not controlling. See Allen, 100 Wn.2d at 372. But where NLRA and PECBA

practices are not similar, consistency with federal law is not a persuasive policy

rationale—^particularly here, where such a policy rationale is proffered to justify

departing from the plain language of ROW 41.56.160(1) and ROW 41.80.120(1). We

decline to place a greater emphasis on the federal courts' interpretation of a dissimilar

system than the plain language of our state statutes.

Nor can we stray from the legislature's plain language for policy reasons alone.

We look first to the plain language of a statute, and ifthat language is unambiguous, our

inquiry ends. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007)(citing

State V. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). In this case, RCW 41.56.160(1)

and RCW 41.80.120(1) include references only to claims filed with PERC. The

legislature expressly omitted such claims filed in superior court. We must give effect to

that plain meaning.

17
No. 93655-2

Because we hold that the six-month limitation does not apply to petitioners' unfair

labor practice claims filed in superior court, we must determine what statute of

limitations applies. Petitioners argue that we should apply RCW 4.16.130 to their DFR

claims, which provides,"An action for relief not hereinbefore provided for, shall be

commenced within two years after the cause of action shall have accrued." We agree that

this two year statute of limitation applies. Although the parties dispute when petitioners

became aware oflUOE's decision not to proceed to arbitration, petitioners filed this suit

within two years of any of the possible dates. Thus, petitioners' claims were timely and

the superior court erred in granting summary judgment on that ground.

CONCLUSION

We reverse the Court of Appeals and hold that claims against unions for the

actions oftheir representatives in the collective bargaining process are subsumed in a

DFR claim. We further hold that the plain language ofRCW 41.56.160(1) and RCW

41.80.120(1) dictates that the six-month statute of limitations applies only to claims filed

with PERC, not those filed in superior court. Therefore, the two year catchall statute of

limitations found in RCW 4.16.130 should apply to unfair labor practice claims filed in

superior court. Therefore, petitioners' timely filed their claims and the superior court

erred in granting summary judgment based on the statute of limitations.

18
No. 93655-2

WE CONCUR:

O&vKta[n
/

19
Killian v. Int'l Union ofOperating Eng'rs, No. 93655-2
Fairhurst, C.J.(concurring)

No. 93655-2

FAIRHURST, C.J. (concurring)—I agree with the majority's result in this

case, but I write separately because I would narrow the holding with regard to the

applicable statute of limitations. The six month statute of limitations is inapplicable

to Roland Killian and Dennis Bailey's duty of fair representation (DFR) claim

because they could not have filed the claim with the Public Employment Relations

Commission (PERC) for lack of jurisdiction. Therefore, the two year statute of

limitations applies to this claim and the trial court erred in granting summary

judgment.

PERC lacks jurisdiction over Killian and Bailey's claim because it does not

involve a statutory right. PERC has limited jurisdiction to prevent unfair labor

practices and issue appropriate remedial orders. RCW 41.56.160. It is settled law

that this limited jurisdiction applies only when unfair labor practices affect statutory

rights. Local 2916, lAFF v. Pub. Emp't Relations Comm'n, 128 Wn.2d 375, 376,

907 P.2d 1204 (1995). The duty of fair representation is a judicially imposed

standard, not a statutory right. Allen v. Seattle Police Officers' Guild, 100 Wn.2d
Killian v. Int'l Union ofOperating Eng'rs, No. 93655-2
Fairhurst, C.J.(concurring)

361, 367-75, 670 P.2d 246 (1983).^ Thus, PERC has jurisdiction over DFR claims

only if the claim affects a statutory right. Local 2916, lAFF, 128 Wn.2d at 383

(concluding that PERC has "no authority to decide whether an act is an unfair labor

practice unless the right that is affected is guaranteed by statute").^ So only in "rare

circumstances" does PERC assert jurisdiction over DFR claims, such as when an

employee alleges its union aligned itself against the employees it represents based

on invidious discrimination. James v. Amalg. Transit Union Local 1765, Decision

12172, 2014 WL 5149996, at *1 (Wash. Pub. Emp't Relations Comm'n Oct. 1,

2014)(citing Heitman v. Seattle Police Officers' Guild, Decision 11291-A, 2012

WL 2885472, at *3(Wash.Pub. Emp't Relations Comm'n July 11, 2012)). Because

Killian and Bailey's DFR claim does not affect a statutory right, PERC lacks

jurisdiction.

Because PERC does not have jurisdiction over Killian and Bailey's DFR

claim, the six month statute of limitations in RCW 41.56.160(1) and 41.80.120(1)

does not apply. The two year statute of limitations in RCW 4.16.130 applies. It is

'The court decided to apply the doctrine ofDFR to unions certified under RCW 41.56.080,
then proceeded to craft "our own guidelines" for what constitutes a breach of this duty, leaving
further development ofthe doctrine to be decided in subsequent cases by the judicial branch.Allen,
100 Wn.2dat374.
^ For example, DFR claims affect statutory rights when the bargaining representative
engages in a prohibited unfair labor practice as enumerated in RCW 41.56.150.
2
Killian v. Int'l Union ofOperating Eng'rs, No. 93655-2
Fairhurst, C.J.(concurring)

unnecessary to answer the broader question of what statute of limitations applies to

claims that could properly be filed in either PERC or superior court.
Killian v. Int'l Union ofOperating Eng'rs, No,93655-2
Fairhurst, C.J.(concurring)

'^aAA\oAAA^. CC
No. 93655-2
(Gordon McCloud, J., dissenting in part)

No. 93655-2

GORDON McCLOUD, J. (dissenting in part)—agree with the majority's

resolution of the first issue presented in this case: the petitioners' negligent and

unauthorized practice of law and Consumer Protection Act' claims are subsumed

within their duty of fair representation (DFR) claim. I therefore concur in that

holding, which is consistent with relevant precedent from around the country. See

majority at 8-11. I disagree with the majority's other holding, however, regarding

the statute of limitations applicable to petitioners' claims.

On that question, the Court of Appeals in this case followed Imperato v.

Wenatchee Valley College, 160 Wn. App. 353, 247 P.3d 816 (2011),^ a well-

reasoned decision on which parties to collective bargaining disputes have relied for

years. Consistent with Imperato, the Court of Appeals held that the petitioners'

1
Ch. 19.86 RCW.

^ Killian v. Int'l Union ofOperating Eng'rs, Local 609-A, 195 Wn. App. 511, 522-
24, 381 P. 3d 161 (2016){ciXmg Imperato, 160 Wn. App. at 356-64).
1
No. 93655-2
(Gordon McCloud, J., dissenting in part)

claims were subject to the six-month statute of limitations in RCW 41.56.160, even

though that statute's express terms govern only complaints filed with the Public

Employee Relations Commission (PERC). Killian v. Int'l Union of Operating

Eng'rs, Local 609-A, 195 Wn. App. 511, 522-24, 381 P. 3d 161 (2016).3 The

majority reverses that holding, concluding instead that the two-year catchall statute

of limitations codified at RCW 4.16.130 should apply because the petitioners filed

their DPR claim in superior court. In doing so, the majority overturns Imperato,

minimizes the policy concerns underlying that decision, and departs jhom decades

of precedent interpreting Washington's Public Employees' Collective Bargaining

Act's(PECBA)provisions consistent with similar provisions in the National Labor

Relations Act(NLRA)§ 9, 29 U.S.C. § 159(a).

^ RCW 41.56.160(1) provides, "The commission is empowered and directed to
prevent any unfair labor practice and to issue appropriate remedial orders: PROVIDED,
That a complaint shall not be processed for any unfair labor practice occurring more than
six months before the filing of the complaint with the commission. This power shall not
be affected or impaired by any means of adjustment, mediation, or conciliation in labor
disputes that have been or may hereafter be established by law." The petitioners do not
dispute that a claim for breach of the DFR is a claim for an "unfair labor practice." See
RCW 41.56.150(1) (defining "unfair labor practice" as including actions that "interfere
with, restrain, or coerce public employees in the exercise of their rights guaranteed by this
chapter"); v. Seattle Police Officers' Guild, 100 Wn.2d 361,371,670 P.2d 246(1983)
(holding that the DFR is a right guaranteed by RCW 41.56.080).
No. 93655-2
(Gordon McCloud, J., dissenting in part)

I believe Imperato was correctly decided and would therefore affirm the Court

of Appeals' decision on the statute of limitations issue in this case. On that issue, I

respectfully dissent.

A. The Imperato Decision Is Well Reasoned and Consistent with Our
Legislature's Intent

Our legislature enacted PECBA in 196T^ in order to fill a gap in collective

bargaining law. At that time, the NLRA had long protected private sector employees

from unfair labor practices^ but had never applied to public employment.^ PECBA

addressed that discrepancy by extending NLRA-type protections to public sector

employees like the petitioners in this case. Indeed, many of PECBA's provisions

are clearly based on the NLRA.

Like an NLRA unfair labor practices claim, a PECBA claim does not sound

in tort; instead, it is a special cause of action created by chapter 41.56 RCW.^ Thus,

Laws of 1967, Ex. Sess., ch. 108, § 7.

^ See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 239-46, 79 S. Ct.
773, 3 L. Ed. 2d 775 (1959)(discussing history of unfair labor practice claims brought
under NLRA, distinguishing these claims from common law tort claims, and holding that
National Labor Relations Board (NLRB) has exclusive jurisdiction over unfair labor
practice claims).

® Aramark Corp. v. Nat'l Labor Relations Bd., 179 F.3d 872, 874 (10th Cir. 1999)
(NLRA expressly exempts government entities from NLRB jurisdiction (quoting NLRA §
2(2), 29 U.S.C. § 152(2) (defining covered "'employer[s]'" to exclude, among other
entities, "any State or political subdivision thereof'))).
No. 93655-2
(Gordon McCloud, J., dissenting in part)

in Washington, a public employee's claim for unfair labor practices did not exist

until 1969—and neither did the six-month statute of limitations applicable to such

claims under RCW 41.56.160. The 1969 enactment created the claim and the

limitations period simultaneously. LAWS OF 1969, Ex. Sess., ch. 215, § 3

(empowering PERC to prevent and remediate unfair labor practices subject to the

six-month limitations period); LAWS OF 1969, Ex. Sess., ch. 215, § 1 (defining

"unfair labor practice [by] a public employer"); LAWS OF 1969, Ex. Sess., ch. 215, §

2(defining "unfair labor practice [by] a bargaining representative").

As the majority notes, PECBA does not divest superior courts of any

jurisdiction, majority at 12, and for this reason an aggrieved employee can bring a

PECBA claim in superior court as well as before PERC. State ex rel. Graham v.

Northshore Sch. Dist. No. 417, 99 Wn.2d 232, 240, 662 P.2d 38 (1983)). But this

creates the potential for conflicts, so we have developed the "priority of action rule,"

under which the superior court is precluded fi-om ruling on any issue in a case already

pending before PERC (where the two cases are identical as to issues, parties, and

relief). City ofYakima v. Int'l Ass'n ofFire Fighters, AFL-CIO, Local 469, 117

Wn.2d 655,615-16, 818 P.2d 1076(1991){CNmgSherwin v. Arveson,96 Wn.2d 77,

^ Wright V. Terrell, 162 Wn.2d 192, 196, 170 P.3d 570 (2007)(RCW 4.96.020,
which imposes special filing rules on actions for damages against all local governmental
entities and their officers, employees, or volunteers, does not apply to unfair labor practice
claims under chapter 41.56 RCW because such claims "are not tort claims for damages").
4
No. 93655-2
(Gordon McCloud, J., dissenting in part)

80, 633 P.2d 1335 (1981)). The purpose of this rule is to prevent '"unseemly,

expensive, and dangerous conflicts of jurisdiction and of process.'" Id, at 675

(quoting Sherwin, 96 Wn.2d at 80).

The majority's holding is hard to reconcile with this rule. It is not clear why

we should strive to achieve consistency between PECBA cases before PERC and

PECBA cases in superior court with respect to everything except the statute of

limitations.

Nor is it likely that our legislature intended that result. It is far more likely

that when our legislature created PECBA's unfair labor practices claim in 1969, it

simply failed to consider the fact that such claims might be filed in superior court.

After all, it created the PECBA cause of action 14 years before our holding in

Graham (recognizing superior court jurisdiction to hear PECBA claims) and more

than 100 years after the enactment of the catchall statute of limitations codified at

RCW 4.16.130. PECBA's silence about superior court claims must be viewed in

light ofthis legislative history. See State v. Evans, 177 Wn.2d 186, 202-03,298 P.3d

724 (2013) (because legislative history indicated amendment was intended to

broaden scope of identity theft statute, court would not interpret addition of the

words "living or dead" to narrow that scope by excluding corporations from class of

potential victims). And in that light, RCW 41.56.160's silence does not indicate a

deliberate decision to incorporate the hundred-year-old catchall statute.

5
No. 93655-2
(Gordon McCloud, J., dissenting in part)

Moreover, if our legislature had intended that result—if it had intended to

impose one statute of limitations on PECBA claims brought before PERC and

another statute of limitations on PECBA claims brought in superior court—it could

have overturned Imperato at any point during the last six years. The fact that it has

not done so is strong evidence that it believes Imperato was correct. City ofFederal

Way V. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172(2009)("This court presumes

that the legislature is aware ofjudicial interpretations of its enactments and takes its

failure to amend a statute following a judicial decision interpreting that statute to

indicate legislative acquiescence in that decision." (citing Soproni v. Polygon Apt.

Partners, 137 Wn.2d 319, 327 n.3, 971 P.2d 500 (1999)). This makes sense given

Imperato's excellent policy reasoning.^

^ I agree with the majority that there may be some instances in which PERC could
not hear all claims relating to an employment dispute, no matter what statute of limitations
applies. Thus, I agree with the majority that contrary to the Imperato court's reasoning,
avoiding "piecemeal litigation" is not necessarily a relevant coneem in interpreting
PECBA. Majority at 15. But I disagree with the majority's assertion that PERC did not
have jurisdiction over the petitioners' DFR claims in this case. Id. While PERC lacks
jurisdiction to decide contract disputes over the meaning of a collective bargaining
agreement, it does have jurisdiction to hear other allegations that a union has acted
arbitrarily, in bad faith, or in a discriminatory manner toward the workers it represents. See
Heitman v. Seattle Police Officers' Guild, Decision 11291-A, 2012 WL 2885472(Wash.
Pub. Emp't Relations Comm'n July 11, 2012) (explaining the principles underlying
PBRC's jurisdiction to hear DFR claims). In this case, the petitioners alleged that the
defendant union acted in bad faith when it represented them. Clerk's Papers at 10, 982-83.
This was not a contract dispute outside PERC'sjurisdiction under the authority the majority
cites.
No. 93655-2
(Gordon McCloud, J., dissenting in part)

B. The Majority's Holding Departs from Decades of Precedent Interpreting
PECBA's Provisions Consistent with Similar Provisions in the NLRA

As noted above, PECBA filled a gap in collective bargaining law by giving

public employees essentially the same rights, under state law, that private sector

employees enjoy under the NLRA. Many ofPECBA's provisions borrow language

wholesale from the federal act. Accordingly, this court gives persuasive authority

to federal cases interpreting NLRA provisions that are "substantially similar" to their

PECBA counterparts. Allen v. Seattle Police Officers' Guild, 100 Wn.2d 361, 372,

670P.2d 246(1983).

Applying that rule, Washington courts have relied on NLRA case law to

conclude that PECBA imposes the DFR on unions, see id. at 371-72, and that a

breach of the DFR is an "unfair labor practice" under PECBA,Imperato, 160 Wn.

App. at 358-60 (citing DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 103 S.

Ct. 2281, 76 L. Ed. 2d 476 (1983)); Fowlkes v. Int'l Bhd. ofElec. Workers, Local

No. 76, 58 Wn. App. 759, 767-68, 795 P.2d 137 (1990)(citing numerous federal

cases).^

^ As the majority notes, Killian and Bailey do not dispute that a claim for breach of
the DFR is a claim for an "unfair labor practice." Majority at 12 n.2. This is consistent
with the relevant statutes and case law. See ROW 41.56.150(1)(defining "unfair labor
practice" as including actions that "interfere with, restrain, or coerce public employees in
the exercise of their rights guaranteed by this chapter"); Allen, 100 Wn.2d at 371 (holding
that the DFR is a right guaranteed by RCW 41.56.080).
7
No. 93655-2
(Gordon McCloud, J., dissenting in part)

Just as we follow federal precedent on these DFR questions, we should follow

federal precedent on the statute of limitations question presented in this case. RCW

41.56.160 is "substantially similar"'® to NLRA § 10(b), 29 U.S.C. § 160(b), the

provision the United States Supreme Court addressed in DelCostello, which imposes

a six-month limitations period on unfair labor practice claims under that act. 462

U.S. at 169. Like RCW 41.56.160, whose express terms apply only to actions filed

with PERC, NLRA § 10(b), 29 U.S.C. § 160(b) imposes an express six-month

limitation only on actions filed with the National Labor Relations Board(NLRB)."

Nevertheless, the DelCostello Court held that this same statute oflimitations applies

to NLRA/DFR actions filed in federal district court. 462 U.S. at 169-70.

10
Allen, 100 Wn.2d at 'ill.

" Compare RCW 41.56.160(1) (empowering PERC to prevent and remediate
"unfair labor praetiee[s] . . . Provided, That a complaint shall not be processed for any
unfair labor practice oceurring more than six months before the filing ofthe complaint with
the commission"), with NLRA § 10(b), 29 U.S.C. § 160(b)(empowering the NLRB or"any
agent or agency designated by the [NLRB] for such purposes" to prevent and remediate
"unfair labor practice[s]... Provided, That no complaint shall issue based upon any unfair
labor practice oceurring more than six months prior to the filing of the charge with the
[NLRB]. . . ."). This similarity makes the NLRA "substantially similar" to PECBA for
purposes of the question presented in this case. For purposes ofthat question, and contrary
to the majority's reasoning, it is irrelevant that the NLRB may have broader jurisdiction
over some collective bargaining agreement contract disputes than the PERC does. See
majority at 17.

8
No. 93655-2
(Gordon McCloud, J., dissenting in part)

To reach that conclusion, the DelCostello Court had to depart from a previous

rule: that district courts hearing federal labor law claims should borrow state statutes

of limitations applicable to the most closely analogous claims. Id. at 171-72. It

departed from that rule because it determined that the six-month limitations period

expressly applicable to unfair labor practice claims brought before the NLRB

reflected Congress' careful balancing of'"the national interests in stable bargaining

relationships and finality ofprivate settlements, and an employee's interest in setting

aside what he views as an unjust settlement under the collective-bargaining

system.'" Id. at 171 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 70,

101 S. Ct. 1559, 67 L. Ed. 2d 732 (1981)(Stevens, J., concurring in part)). The

DelCostello Court reasoned that this balance should be given effect in federal district

court as well as in NLRB proceedings. Id.

Reaching the same conclusion about PECBA claims filed in superior court is

consistent with our long-standing practice of following federal precedent on

substantially similar NLRA provisions. See Allen, 100 Wn.2d at 367, 371-72. The

Imperato court recognized this: it noted that RCW 41.56.160(1) "mirror[s] federal

law" and it held that the policy considerations underlying the DelCostello decision—
No. 93655-2
(Gordon McCloud, J., dissenting in part)

finality and predictability—are equally compelling in the context of a PECBA

claim. 160 Wn. App. at 364.

The Imperato court also reasoned that it would not make sense to impose

different statutes of limitations on unfair labor practice claims brought by public

employees under PECBA and private employees under the NLRA. Id.("[ajpplying

a six-month statute oflimitations [under RCW 41.56.160(1)] places state employees

and private employees on equal footing"). This reasoning is sound. Our legislature

enacted PECBA to place public employees on the same footing as private sector

employees with respect to collective bargaining rights. A superior court loophole

for public sector employees, allowing them to escape the six-month limitations

period applicable under PECBA and the NLRA,is not consistent with that purpose.

CONCLUSION

In this case, the Court of Appeals applied the well-reasoned holding from

Imperato that PECBA claims must be brought within six months, no matter what

forum they are brought in. That holding is consistent with long-standing precedent

regarding the interpretation of PECBA's provisions. It also furthers sound policy

The Imperato court adopted policy reasoning from a Michigan case, which relied
in significant part on DelCostello, addressing an identical statute of limitations question
under that state's law. 160 Wn. App. at 363-64 (citing Meadows v. City ofDetroit, 164
Mich. App. 418, 434-35, 418 N.W.2d 100 (1987)). The Michigan case cited
DelCostello for the principle that in the context of collective bargaining, relatively short
statutes of limitation further the parties' interests in finality and predictability. 164 Mich.
App. at 434-45 (citing DelCostello, 462 U.S. 151).
10
No. 93655-2
(Gordon McCloud, J., dissenting in part)

goals: promoting efficiency in the resolution of labor disputes, placing public and

private sector employees on equal footing, and preventing forum shopping. The

majority's decision to overturn Imperato departs from settled precedent and

frustrates those goals. Because I do not believe that this is consistent with our

legislature's intent, I respectfully dissent.

11
No. 93655-2
(Gordon McCloud, J., dissenting in part)

'IM/

12