Opinion
No. 60979-3-I.
April 13, 2009.
Appeal from a judgment of the Superior Court for King County No. 06-2-22468-0, Andrea A. Darvas, J., entered November 16, 2007.
Affirmed by unpublished opinion per Cox, J., concurred in by Grosse and Appelwick, JJ.
L. Jenny Chung appeals the summary dismissal of her breach of contract action against King County. Because she fails to establish that the County breached any covenant of good faith and fair dealing or otherwise breached the executory terms of the settlement agreement between the parties, we affirm.
King County Sheriff's Office hired Chung in 1990 as an accounting specialist. In April 1999, she petitioned the King County Personnel Board, seeking reclassification of her position and increased compensation consistent with the duties of the reclassified position. While the petition was pending, King County, Chung, and a representative from Chung's union, Service Employees International Union — Public Safety Employees, Local 519 (Local 519), executed a settlement agreement dated July 14, 2003. Local 519 is the exclusive bargaining agent for Chung and other similarly situated employees of the County. The settlement agreement resolved all issues regarding the reclassification. This included a commitment by the County to jointly develop the text of a reclassification of her position and award a pay raise based on the reclassification. The agreement also provided for payment of her attorney fees in connection with representation in her appeal to the Board.
In February 2006, Chung petitioned the King County Personnel Board to enforce the settlement agreement. The Board dismissed Chung's petition, concluding that the relief Chung sought was beyond the Board's authority to grant.
In July 2006, Chung commenced this action in superior court against the County, claiming breach of the covenant of good faith and fair dealing for allegedly arbitrarily imposing a reclassified position and pay range. The court granted the County's moved for summary judgment.
Chung appeals.
SETTLEMENT AGREEMENT
Chung argues that she may enforce the provisions of the settlement agreement that she signed. She also argues that the County breached the terms of the agreement. We agree with her first point, but disagree with the second.
A motion for summary judgment may be granted when there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. The burden is on the moving party to show there is no genuine issue of material fact. All facts and reasonable inferences are viewed in the light most favorable to the nonmoving party. If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute. We review a trial court's summary judgment order de novo.
Vallandigham v. Clover Park School Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
Atherton Condominium Apartment Owners Ass'n Board of Directors v. Blume Development Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).
Id.
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
Here, Chung contends that the County violated paragraphs 1, 2, and 7 of the settlement agreement. Those portions of the agreement state as follows:
Brief of Appellant at 8-9.
1. Within sixty (60) days of the signing of this agreement the Appellant and Respondent will meet to develop the text of the job description of the new classification LEOFF I CLAIMS SPECIALIST.
2. As soon as reasonably possible after the development and approval by the Director of the Human Resources Division of the LEOFF I CLAIMS SPECIALIST job description the Appellant will be re-classified into the newly created position . . . and Appellant will be placed in a RANGE 47 STEP 10 pay level.
. . . .
7. Appellant's pay range as agreed upon in this Settlement Agreement will be re-opened for bargaining as part of the next contract negotiations for [SEIU-PSE] Local 519 scheduled to take place in 2005. Prior to the negotiations the Human Resources Division will conduct a salary market study of the Appellant's position to be consulted as part of the negotiations.
Clerk's Papers at 9 (emphasis added).
We start with the observation that Chung does not argue that the County failed to bargain in good faith during the period specified in paragraph 7 of the agreement. Likewise, she does not claim that Local 519 breached its duty to her of fair representation at any time.
Viewing the record before us in the light most favorable to Chung, as we must, Chung fails to raise any genuine issues of material fact. Regarding paragraphs 1 and 2, Chung stated in her declaration that the County did not meet or develop the job description in a timely manner, but she fails to state any prejudice from the alleged lack of timeliness. She admits that the County did develop the required job description after considering written input from her. She states that she received a one page job description from the County for the position. She also states that she provided to the County a more complete statement of the duties that she performed. E-mail correspondence attached to Chung's declaration also indicates that the County considered the extensive materials that Chung provided and made changes to the job description.
E-mail correspondence also shows that Dustin Frederick, the Local 519 bargaining agent, urged the County to consider adding more specificity to the job description consistent with Chung's version. The e-mail correspondence also shows that Frederick agreed to meet with someone in the County's human resources department to discuss the reclassified position description on February 23, 2004. This evidence shows that the County fulfilled the requirements of paragraph 1of the settlement agreement. It developed the text of the job description with input from Chung and Local 519. Although she alleges that the description that the County developed is not accurate, her disagreement with the description is not a material fact. The agreement clearly states that the ultimate arbiter of what the job description should say was the Director of the Human Resources Division. It is clear that the director approved the job description after receiving input from Chung and Local 519 and that is all the County was required to do. Other than bare allegations that the description is inaccurate, Chung has failed to show any breach of the covenant of good faith or of the written terms of the settlement agreement regarding the development of the job description.
We also note that Chung does not contest the evidence that she received a pay raise that was consistent with the job description that the County approved. Accordingly, she has failed in her burden to raise a material fact with respect to paragraph 2 of the agreement.
With respect to paragraph 7, the record contains a declaration from Ann McClellan, a King County labor analyst, stating that she prepared a salary market study for the new LEOFF I Claims Specialist position. McClellan describes the process she used to conduct the study and indicates that in doing the study she reviewed materials submitted by Chung.
Declarations of Deborah Bellam, the collective bargaining representative for King County, and Dustin Frederick state that McClellan's salary study was considered during the collective bargaining process in 2005. Chung produced no evidence showing that the County failed to satisfy its obligation to conduct a market salary study as required by paragraph 7 of the agreement. Chung states in her declaration only that when she received a copy of the salary survey conducted by the County, she determined that it was "incomplete and misleading as to its comparability with my . . . position." These bare allegations are insufficient to avoid summary judgment.
After receiving the County's "incomplete" study, Chung conducted her own salary study based on positions she believed to be more comparable to hers than those considered by the County. She submitted this salary information to Bellam and Frederick. Both Bellam and Frederick stated in their declarations that they considered and discussed this salary survey information provided by Chung during the 2005 bargaining process. Thus, the evidence before us again fails to show the existence of a material fact, precluding summary judgment.
The second question before us is whether the County was entitled to judgment as a matter of law, notwithstanding Chung's other arguments. None of her arguments refutes the County's claim that it was entitled to judgment as a matter of law.
Chung argues that she is suing for breach of a settlement agreement that is independent of the collective bargaining process, citing Hill v. J.C. Penney. We disagree.
70 Wn. App. 225, 852 P.2d 1111 (1993).
We have already addressed why Chung has not raised a genuine issue of material fact regarding the development of the new job description contemplated by paragraphs 1 and 2 of the agreement. To the extent Chung claims an individual right to negotiate with the County regarding future pay levels following the development of the job description, she is clearly wrong.
As paragraph 7 plainly reads, the subject of future pay raises was to be part of the bargaining process between Local 519 and the County to take place in 2005. The record shows that process took place. Under the plain language of the agreement that she signed, Chung simply has no basis to contend that she had an individual right to bargain with the County regarding her pay.
Hill does not require a different result. In that case, Hill, a union employee, sued J.C. Penney in state court for wrongful discharge and breach of employment contract, among other claims. At the time of Hill's discharge, the current collective bargaining agreement, which required a showing of good cause prior to discharge, had expired. Because Hill's claims were based on the expired CBA, the court held that they were preempted by federal labor law and subject to the exclusive jurisdiction of the NLRB. However, the court recognized that Hill could "litigate in state court a claim that Penney made a binding promise, or entered into a contract with her individually, or any other claim that does not interfere with the collective bargaining process." While the court noted the availability of state court enforcement for such claims, it ultimately concluded that Hill did not have such a claim because she failed to prove that J.C. Penney modified her at will employment contract.
Hill, 70 Wn. App. at 229.
Id. at 227-28.
Id. at 232-33.
Id. at 233.
Id. at 234.
Similarly, here, Chung fails to show that her settlement agreement contains a binding promise or contract that does not interfere with the collective bargaining process. Significantly, paragraph 7 of the agreement clearly references the collective bargaining process and states that her salary will be negotiated as part of the next CBA negotiation in 2005. Moreover, the settlement agreement was signed by three parties — Chung, the County, and Local 519. Chung fails to show that the agreement is independent from the CBA.
Chung argues the agreement is independent of the CBA because the agreement is the product of a personnel system created by the King County Charter, which is independent of the CBA. She argues that King County Code 3.08.100 gives the personnel board jurisdiction to consider "classification, reclassification and related pay issues. "But nothing in the provision Chung cites, or in related provisions, gives the board the jurisdiction to address pay issues.
Chung also argues that the County cannot "unilaterally convert" the agreement into a mandatory collective bargaining issue by entering into an agreement with Local 519 to negotiate the salary of her new position during the next CBA negotiation. Chung claims she was not aware that, by way of a separate Memorandum of Agreement, the County and Local 519 agreed to initially set her salary for the reclassified position and to reopen her pay range in the next CBA negotiation. This document was put in writing in October 2003 but indicates an effective date of July 14, 2003, the same date the settlement agreement was executed.
Chung contends this Memorandum between the County and Local 519 is nothing more than "a subterfuge to provide a make weight justification for their unilateral decision to deprive [her] of her contractual right to negotiate her new pay scale." Significantly, however, nothing in the separate Memorandum of Agreement changed the terms of the settlement agreement that Chung had earlier signed. Although it may be true that Chung did not know that Local 519 and the County had to agree separately on her interim salary for the reclassified position, she nevertheless agreed and accepted it. Furthermore, the terms of the settlement agreement to which Chung agreed belie her claim that she did not know her position's salary would be subject to CBA negotiations.
Brief of Appellant at 19.
We note that our reading of the settlement agreement is consistent with state law. Under Washington law, the County would have committed an unfair labor practice if it had made such a promise to Chung. The Public Employees' Collective Bargaining Act (PECBA), Chapter 41.56 RCW, prohibits such an agreement between the County and Chung. The PECBA authorizes public employees to be represented by unions. It also requires employers to bargain collectively with the exclusive representative designated by the employees, Local 519 in this case.
The scope of the employer's collective bargaining obligation is defined by the act to include employee wages. The act also prohibits, as an unfair labor practice, an employer from controlling, dominating or interfering with a bargaining representative or from refusing to engage in collective bargaining. Had the County promised to negotiate Chung's wages with her, rather than with her union representative, it would have effectively refused to bargain collectively on wages, constituting an unfair labor practice under RCW 41.56.140(4). As a matter of law, Chung is not entitled to the relief she seeks. We affirm the summary judgment order.
RCW 41.56.030(4); see also Pasco Police Officers' Ass'n v. City of Pasco, 132 Wn.2d 450, 460, 938 P.2d 827 (1997) (wages, hours, and other terms and conditions of employment are mandatory subjects about which parties must bargain).
RCW 41.56.140(2), (4).
We concur.