Skip to Content

Court of Appeals Rules All Claims Against Union Arising from Its Representation of Its Member Were Actually DFR Claims


Last week, Division One of the Washington Court of Appeals agreed that the trial court had correctly dismissed a lawsuit by two bargaining unit members brought against their public sector bargaining union. The members alleged that the union had negligently engaged in the unauthorized practice of law by settling their grievances in a way that they did not like. The employer had offered to settle the grievances for significant amounts of money, but only if the grievants would also agree to release any claims arising outside of the collective bargaining agreement that they might assert against the employer. The union settled the grievances by agreeing to withdraw the grievances if the employer would make the monetary offers to the grievants to settle those external claims. This left the grievants free to settle and take the money offered or to pursue their claims. The grievants rejected the employer’s offers and sued the employer and the union. The trial court dismissed the claims against the union on the grounds that the claims asserted were really duty of fair representation claims and were filed too late to be actionable.

The decision in Killian v. International Union of Operating Engineers Local 609 is the first time a Washington appellate court has ruled that any claim against a Washington public sector union which arises from the union’s representation of its member is, in reality, a claim that the union breached its duty of fair representation and cannot be characterized as a different type of claim.

The Court explained that unions have a statutorily authorized representational status that gives them great latitude in how they process grievances. This is because “a union must balance collective and individual interests in making these decisions [because the] collective bargaining system by its very nature subordinates the interest of an individual employee to the collective interests of all the employees in the bargaining unit.” Thus, the duty of fair representation is breached only when a union's conduct is “discriminatory, arbitrary, or in bad faith.” The Court ruled that, in order to ensure that unions retain this latitude, any claim against them arising from representation must be judged under the DFR standard.

In addition, the Court agreed with a previous decision of its sister court, Division Two of the Court of Appeals, that DFR claims brought in state court are subject to the same six-month statute of limitations that applies to DFR claims brought before the Public Employment Relations Commission. Therefore, any lawsuit alleging claims against a public sector union must be filed within six months of the member’s knowing the facts that give rise to the claim, or, in the exercise of due diligence, of when the member should have known those facts. Because the suit was filed well after the six-month deadline, the Court of Appeals affirmed the trial court’s dismissal of the lawsuit.

This decision correctly protects the broad discretion that unions exercise in the representation of their members during the grievance process while considering the interests of all the bargaining unit members. It ensures that labeling a DFR case as something else will not be allowed to impede unions in exercising their discretion in a reasonable manner. It also ensures that collective bargaining relationships are not disrupted by lawsuits filed years after a grievance was settled.