Case Information
*1 This oj^.nlonj5(5,|jsAf9r;!agg FT at '^'.QOOJTv- onOO- IN CLERKS OFFICE eUFRaC COURT, 8IXIE OF mGHMGnCM U 1M75 12 mr SUSAN L. CARLSON
F SUPREME COURT CLERK CHIEF JUSTKE IN THE SUPREME COURT OF THE STATE OF WASHINGTON ROLAND KILLIAN,
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, Filed 0^-^ ^ 2 20]
Respondent.
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 of lUOE'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 of lUOE, 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. 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 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 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 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 lUOE's executive board of the 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 of lUOE'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.
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 of ROW 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 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 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 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 of Operating Eng'rs, Local 609-A,
ANALYSIS
We review summary judgment de novo. Allen v. State,
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,
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,
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.
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. 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. 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,
Brown v. Maine State Emp 'rs Ass 'n,
Because we find that petitioners' negligent and unauthorized practice of law 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 of the 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 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,
^ "The NLRB has consistently held that all breaches of a union's duty of fair representation are
in fact unfair labor practices." DelCostello v. Int'l Bhd. of Teamsters,
(2002)
Landmark Dev., Inc. v. City of Roy,
In Imperato v. Wenatchee Valley College, Division Three of the Court of Appeals
addressed the statute of limitations question that this case raises.
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.
because federal law also establishes a six month statute of limitations." Killian, 195 Wn.
App. at 523 (citing Imperato,
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 of RCW 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,
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 of the 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 if the 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 of the 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 of Teamsters, the Court held that the six-month limitation from the NLRA
applies to what they call "hybrid claims."
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.,
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 if that language is unambiguous, our
inquiry ends. State v. Armendariz,
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 of lUOE'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 of their representatives in the collective bargaining process are subsumed in a DFR claim. We further hold that the plain language of RCW 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.
WE CONCUR:
O&vKta [n
/
Killian v. Int'l Union of Operating Eng'rs, No. 93655-2
Fairhurst, C.J. (concurring)
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,
Fairhurst, C.J. (concurring)
361, 367-75,
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,
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 of DFR 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 of the 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.
Killian v. Int'l Union of Operating 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 of Operating Eng'rs, No, 93655-2
Fairhurst, C.J. (concurring)
'^aAA\oAAA^ . CC
No. 93655-2
(Gordon McCloud, J., dissenting in part)
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,
[1] Ch. 19.86 RCW.
^ Killian v. Int'l Union of Operating Eng'rs, Local 609-A,
(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,
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,
(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,
® Aramark Corp. v. Nat'l Labor Relations Bd.,
(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,
^ Wright V. Terrell,
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 of this legislative history. See State v. Evans,
(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 of Federal
Way V. Koenig,
^ 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,
(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 of PECBA'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,
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,
^ 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,
(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 of limitations applies
to NLRA/DFR actions filed in federal district court.
[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 of the 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 of that 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.
(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 of private 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,
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,
finality and predictability—are equally compelling in the context of a PECBA
claim.
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 of limitations [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.
(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.
(Gordon McCloud, J., dissenting in part)
'IM/
12