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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

 

IN AND FOR THE COUNTY OF THURSTON

DAVID SPARLING; BYRD THIBODAUX; )

PAT WOODARD; KENNETH KOCH )

DARREL MOLLENHOUR; LONG K. )

TRINH; MICHAEL D. FARLEY; ) NO. 08-2-02701-2

CHRISTINA ZERBY; TOM DITTMAR; )

WILL LOHMAN; ALLEN CONRAD; )

MARY HANSEN; LIZBETH FLUGEL, ) (PROPOSED)

AND KELLI RUCKER; )

)

Plaintiffs, ) SECOND AMENDED COMPLAINT

)

vs. ) (BREACH OF CONTRACT)

)

WASHINGTON FEDERATION OF STATE ) (CLASS ACTION)

EMPLOYEES, COUNCIL 28 OF )

AMERICAN FEDERATION OF STATE, ) (ADDING STATE OF WASHINGTON

COUNTY AND MUNICIPAL ) AS A DEFENDANT)

EMPLOYEES; and THE STATE OF )

WASHINGTON, )

)

Defendants. )

____________________________________ )

 

The Plaintiffs, by and through their attorney, James P. Richmond of Richmond Law Group, for their Second Amended Complaint allege as follows:

 

 

I. JURISDICTION AND VENUE

1.1 Plaintiffs are employed by the State of Washington. Plaintiffs reside in Washington State, including Plaintiffs who are residents of Thurston County. The Class members are current or former state employees.

1.2 Washington Federation of State Employees, Counsel 28 of American Federation of State, County and Municipal Employees (WFSE), is a public sector labor union that is party to a Collective Bargaining Agreement (CBA) with the Governor’s Washington Labor Relations Office (LRO). LRO negotiates, contracts, and acts on behalf of the Governor and the State for general government public sector employee contracts. WFSE and the LRO agreed to a tentative CBA to be effective July 1, 2005, the 2005-2007 WFSE General Government CBA.

1.3 Plaintiffs here, and the class members, seek to recover monthly dues/fees paid to WFSE from July 1, 2005 through June 30, 2007 because the 2005-2007 WFSE General Government CBA, in its formation, violated public policy and created an illegal contract.

1.4 WFSE’s headquarters are in Thurston County, Washington.

1.5 Venue and jurisdiction are proper in Thurston County pursuant to RCW 4.12, et seq.

II. BACKGROUND FACTS

2.1 The Plaintiffs were bargaining unit employees included in the new collective bargaining system commonly known as Personnel Services Reform Act of 2002 (PSRA). WFSE was the exclusive representative of specified bargaining units and negotiated with the State on behalf of all bargaining unit members.

2.2 In September of 2004, WFSE reached a tentative CBA agreement for State employees.

2.3 The tentative agreement included a union security clause in which the State agreed to provide WFSE with an extraordinary state entitlement. The union security clause, in essence, gave WFSE the power to tax general government employees.

2.4 In exchange for the union security clause, WFSE and the State agreed that all bargaining unit employees would be allowed to vote, "all vote", on the ratification of the tentative 2005-2007 WFSE General Government CBA. WFSE promised to include all state employees in the vote on ratification of the tentative CBA.

2.5 During the 2004 ratification process, WFSE failed to properly and adequately notify bargaining unit employees about their contract ratification rights, the contents of the new contract, and to properly and adequately conduct the voting process. The tentative 2005-2007 WFSE General Government CBA fundamentally changed state employment at WFSE bargaining units that would now require every bargaining unit member to pay WFSE dues/fees.

2.6 During the 2004 ratification process, State agencies provided either inaccurate, misleading, or no information to its managers, supervisors, and employees about the members’ right to participate in ratification of the CBA. Prior to the 2004 tentative agreement, State supervisors and managers had a standing practice of explaining the terms and conditions of negotiated contract terms to state employees. That practice was eliminated July 1, 2005 without notice to state employees.

2.7 After the 2004 ratification vote, in spite of its illegality, the 2005-2007 WFSE General Government CBA was accepted without certification and applied to general government employees from July 1, 2005 through June 30, 2007. The State required members and non members to pay dues/fees in an amount ranging from $48.00 to $52.00 upon threat of termination for non payment. These dues/fees were to be deducted or paid each month from each bargaining unit member’s paychecks as dues or representation fees to be paid directly to the WFSE.

2.8 Prior to the 2005-2007 WFSE General Government CBA, the majority of bargaining unit members were not WFSE members and were not required to pay a representation fee to WFSE. As a result of the 2004 tentative agreement the WFSE and the State decided every employee would be required to pay dues/fees to WFSE.

2.9 RCW 41.80.100 requires written authorization to deduct dues/fees from state employees’ paychecks in an amount that must be certified, but does not appears to have been certified.

. 2.10 Some WFSE members and non members have paid without complaint, some have paid the dues/fees under protest, and some did not pay the dues/fees. Other members paid the dues/fees but stopped payment when they learned the contract was illegal.

2.11 WFSE filed lawsuits against state employees for dues/fees claimed under the 2005-2007 WFSE General Government CBA in several counties including Clark, Thurston, Spokane, Pierce, and Snohomish County. Some members have appeared, others are being found in default.

III.

CLASS REPRESENTATIVES, INDIVIDUAL CLAIMS AND CAUSES OF ACTION

3.1 The 2005-2007 WFSE General Government CBA violated public policy in its formation, creating an illegal contract by violating RCW 41.80 and RCW 49, et seq. The actions and non-actions by WFSE and the State by withholding information about union security and providing misleading information about the bargaining unit members’ ratification rights directly damaged general government employees. The illegal contract directly damaged each employee by requiring the State to illegally withhold a portion of wages under threat of termination to fulfill the promise to provide an extraordinary State entitlement to WFSE.

3.2 WFSE’s conduct denied Plaintiffs the right to fair representation by failing to fairly and adequately conduct the CBA ratification. WFSE’s duty of fair representation was violated by failing to follow state law, union bylaws and constitution, election regulations and guidelines, and by not allowing all bargaining unit employees to vote for or against the 2005-2007 WFSE General Government CBA, a right that the WFSE and the State expressly granted all employees. WFSE’s conduct violated the public sector union’s duty of fair representation because of discriminatory, arbitrary, and bad faith conduct in the ratification process. WFSE’s conduct directly damaged the Plaintiffs and the Class by compelling payment of monthly union dues/fees that was not supported by a legal vote.

3.3 By violating public policy in its formation, a present controversy exists concerning whether WFSE and the State violated contract law, violated statutory law and administrative regulation, and whether WFSE violated the duty of fair representation.

3.4 The named Plaintiffs, and the Class, are entitled to a judicial declaration that Defendant WSFE’s and the State’s conduct during the 2004 ratification was unlawful and that the State’s actions including withholding of employees’ salary was unlawful because an illegal contract was created.

3.5 Plaintiffs seek an injunction to prevent the WFSE from taking any action to collect dues/fees under the 2005-2007 WFSE General Government CBA.

 

 

 

IV.

CLASS ACTION ALLEGATIONS

4.1 Plaintiffs are members of a class of persons who were in the general government 2004 bargaining units where WFSE was the designated representative.

4.2 The class of general government bargaining unit members is so numerous that joinder of all members is impracticable, because it could lead to multiple lawsuits in different jurisdictions, creating an opportunity for uncontested determinations. It is believed that the class consists of over 37,000 members.

4.3 The following questions of fact are common to the class:

a. Whether the WFSE’s conduct was illegal during the 2004 ratification by failing to fairly and adequately conduct the bargaining unit’s vote.

 

b. Whether the WFSE followed reasonable guidelines and regulations for ratification of new contracts.

 

c. Whether all the class members are entitled to a refund to the extent that they paid dues/fees under the 2005-2007 WFSE General Government CBA. (The amount and remedy for damages).

 

d. Whether the State and the union failed to properly and adequately notify bargaining unit members about the 2004 ratification process

 

e. Whether the union security clause fundamentally changed state employment.

 

f. Whether the tentative 2004CBA was certified.

 

4.4 The following questions of law are common to the class:

a. Whether WFSE and the State violated public policy.

 

b. Whether WFSE violated the duty of fair representation.

 

c. Whether WFSE and the State created an illegal contract.

 

d. Whether the State illegally withheld employee’s salaries.

 

e. Whether WFSE should be prevented from filing lawsuits to collect dues/fees.

 

4.5 The claims of Plaintiffs against WFSE and the State are typical of the claims of the class generally because:

a. All class members and Plaintiffs allege the existence of similar legal violations.

 

b. All class members and Plaintiffs allege that they paid some dues/representation fees, and/or are subject to State and WFSE threat of termination for non-payment.

 

c. All class members and Plaintiffs seek a judicial declaration that WFSE and the State created an illegal contract and all class members seek to enjoin further efforts to collect dues under the 2005-2007 WFSE General Government CBA.

4.6 Plaintiffs will fairly and adequately protect the interests of the class because:

a. The Plaintiffs’ interests in prosecuting the claims against the Defendant are identical to the interests of the absent class members.

b. The named Plaintiffs have sufficient resources to prosecute the action and have retained experienced and competent trial counsel.

c. The named Plaintiffs have background, experience and knowledge of WFSE’s and the State’s conduct during the September 2004 ratification for the 2005-2007 WFSE General Government CBA.

4.7 Class certification is appropriate under CR 23(b)(2) because WFSE and the State have acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief, or corresponding declaratory relief, and an award of money damages with respect to the class as a whole.

 

 

 

V.

CLASS CLAIMS AND CAUSES OF ACTION

5.1 The 2005-2007 WFSE General Government CBA with WFSE and the State violated public policy in its formation creating an illegal contract by violating RCW 41.80 and RCW 49 et. seq. The actions and non-actions by WFSE and the State by providing misleading information about members’ ratification rights, directly damaged general government employees in WFSE designated bargaining unit members. The illegal contract directly damaged each state employee by the State illegally withholding a portion of wages to fulfill the promise to provide an extraordinary State entitlement to WFSE.

5.2 WFSE’s conduct denied Plaintiffs and the Class the right to fair representation by failing to fairly and adequately conduct the CBA ratification. WFSE violated its duty of fair representation by failing to follow state law, union bylaws and constitution, election regulations and guidelines, and by not allowing all bargaining unit employees to vote for or against the 2005-2007 WFSE General Government CBA, a voting right that the WFSE and the State expressly granted all employees. WFSE’s conduct violated the public sector union’s duty of fair representation because of discriminatory, arbitrary, and bad faith conduct in the ratification process. This directly damaged the Plaintiffs by compelling payment of monthly union dues/fees that was not supported by a legal vote in a contract that was not certified.

5.3 A present controversy exists over whether the contract was illegal and WFSE should be prohibited from collecting dues/fees. The Plaintiff class is entitled to a judicial declaration that Defendant WFSE’s and the State’s conduct was unlawful and the Plaintiffs and the Class was damaged.

5.5 WFSE should be enjoined in any efforts of collection under the 2005-2007 WFSE General Government CBA.

VI.

REQUEST FOR RELIEF

6.1 Plaintiffs request that judgment be entered against the WFSE and the State as follows:

(a) Until a trial on the merits, by issued a preliminary injunction preventing, restraining and prohibiting the WFSE from taking "further action" against the Plaintiffs and similarly situated bargaining unit employees who did not pay all or a part of the dues/fees for 2005-2007 WFSE General Government CBA;

(b) Staying and consolidating all WFSE lawsuits for claiming unpaid dues/fees;

(c) Damages in the amount of dues/fees of $48.00 to $52.00 taken monthly from each bargaining unit member from July 1, 2005 to June 30, 2007 under the illegal contracts, including interest, double damages, and attorney’s fees under RCW 49, et seq.;

(d) An award of reasonable attorney’s fees and litigation expenses in equity or by law; and

(e) Any additional relief the court finds appropriate, just and equitable.

 

Dated this 12th day of February, 2009.

RICHMOND LAW GROUP, PLLC

 

__________________________________

JAMES P. RICHMOND, WSBA #15865

Attorney for Plaintiffs

 

 

CERTIFICATE OF SERVICE

The undersigned certifies under penalty of perjury under the laws of the State of Washington that I am now and at all times herein mentioned a citizen of the United States, a resident of the State of Washington, over the age of eighteen years, not a party to or interested in the above-entitled action, and competent to be a witness herein.

On the 12th day of February, 2009, I caused to be served the foregoing PROPOSED SECOND AMENDED COMPLAINT on the following individuals in the manner indicated:

 

Edward E. Younglove, III

Attorney at Law

Westhills II Office Park

1800 Cooper Point Road SW, Bldg. 16

Olympia, WA 98507

U. S. Mail

Hand Delivery

Facsimile

E-Mail

Legal Messenger

 

State of Washington

Attorney General’s Office

7141 Cleanwater Drive SW

Olympia, WA 98501

 

U. S. Mail

Hand Delivery

Facsimile

E-Mail

Legal Messenger

 

 

 

 

U. S. Mail

Hand Delivery

Facsimile

E-Mail

Legal Messenger

Signed this 12th day of February, 2009, at Olympia, Washington.

James P. Richmond