(concurring in part, dissenting in part)—I agree that Stokes's and Williams's claims are barred by the 3-year statute of limitations, RCW 4.16.080(3). I would hold, however, that the claims of plaintiffs Campbell and Comito under the collective bargaining agreement are governed by the 6-year statute of limitations,1 and remand *482their claims for trial.
The majority asserts that this action is one to enforce pension rights. That is not the case. Any action to establish or enforce pension or retirement rights to which public employees are entitled under PERS is governed by RCW 41.40.412-.420, which provide an administrative remedy and judicial review pursuant to the administrative procedure act, RCW 34.04. Plaintiffs' claims for judgment were for:
1. A declaration that the termination of their employment was illegal and in violation of their lawful rights.
2. For judgments in an amount sufficient to compensate each plaintiff for loss of wages and of other benefits incurred as a result of said mandatory retirement.
3. Such other and further relief as the court may deem just and equitable.
4. For plaintiffs' costs and attorney's fees . . .
When the plaintiffs were hired, RCW 41.40.180(2) as it then read provided that the mandatory retirement age under PERS was 70. Eagan v. Spellman, 90 Wn.2d 248, 255, 581 P.2d 1038 (1978). In 1970 King County enacted an ordinance reducing the mandatory age for retirement from 70 to 65 years. King County Code 3.12.060(j). The Eagan court held that this back-door amendment of RCW 41.40 was invalid. Eagan, at 253. Thus the only legislative provision governing mandatory retirement is found in RCW 41.40.180, which becomes incorporated into and part of the collective bargaining agreement. See Wagner v. Wagner, 95 Wn.2d 94, 621 P.2d 1279 (1980). Campbell and Comito were third party beneficiaries of the collective bargaining agreement and thus entitled to assert its protections, including RCW 41.40.180, just as the third party beneficiaries of the collective bargaining agreement asserted the protection of the antikickback statute in McDonald v. Wockner, 44 Wn.2d 261, 267 P.2d 97 (1954).
The majority misapprehends the rationale and scope of McDonald and Stover v. Winston Bros. Co., 185 Wash. 416, 55 P.2d 821, appeal dismissed, 299 U.S. 508, 81 L. Ed. 376, *48357 S. Ct. 44 (1936). In McDonald, the defendant-employer was a member of the Automobile Dealers Association which negotiated a collective bargaining agreement with the union, providing for commission payments to salespeople. McDonald and Wockner entered into a secret agreement that McDonald would accept a salary of $350 per month in lieu of commissions called for in the union contract. The court held that this agreement constituted a rebate of commissions, violating the antikickback statute, RCW 49.52-.050. The court applied the 6-year statute of limitations and allowed the employee to recover under the collective bargaining agreement. Though the employment contract between the employer and the employee was oral, McDonald recovered under a written collective bargaining agreement which applied to him as an employee on whose behalf the union had negotiated the contract with the dealers association. The 6-year limit was applicable because the action was upon a written contract incorporating the provisions of the antikickback statute. McDonald, at 276.
The 6-year statute was also applied in Stover, which concerned a suit by defendant's employees under a statute setting minimum wage-hour standards for all contracts with the city. The workers, as third party beneficiaries of the written contract between the city and their employer, sued under the wage-hour statute. The court said that "the liability arises out of the contract, and therefore the six-year statute must apply." Stover, at 429. Though the contract of employment was oral, the contract between the city and the employer supplied the "contract in writing." The source of the right which the plaintiffs sought to enforce was the written contract, incorporating the wage-hour statute, so that the 6-year limit was applicable.
Similarly, in this case, the plaintiffs were hired by King County pursuant to an oral agreement. The majority characterizes the source of the plaintiffs' rights as flowing from this oral employment contract which gave them vested rights in PERS. The rights the plaintiffs are asserting, however, flow from the collective bargaining agreement and *484RCW 41.40, not from the oral employment contract. See Eagan. As in McDonald and Stover, if the plaintiffs had not been hired they would not be entitled to assert the claim. But, again as in McDonald and Stover, the oral employment contract is not the source of the rights they seek to enforce. It is true, as the majority states, that retirement benefits are not specifically mentioned in the collective bargaining agreement. The collective bargaining agreement does, however, prohibit discrimination based on age. Forced retirement at age 65 solely because of age violates former RCW 41.40.180 and may be "discrimination" under the language of the collective bargaining agreement. This is an issue for the trier of fact. Because the source of the right here, as in McDonald and Stover, is the written collective bargaining agreement incorporating a statutory provision, I would apply the 6-year statute of limitations.
Review denied by Supreme Court December 19, 1984.
RCW 4.16.040(1) establishes the 6-year limitation of n[a]n action upon a contract in writing, or liability express or implied arising out of a written agreement."