                                                               HLEtJ
                                                     COURT 0~ APrEALS 1W~
                                                      STATE OF WASHINGTOh            -




                                                      2019FE8 II M11I:OO



  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

JEOUNG LEE and SHERRI                        )       No. 77694-1-I
MCFARLAND, on their own behalf               )
and on behalf of all persons similarly       )
situated,                                    )
                                             )
                      Respondents,           )
                                             )
               v.                            )
                                             )
EVERGREEN HOSPITAL MEDICAL                   )       PUBLISHED OPINION
CENTER, a/k/a KING COUNTY                    )
PUBLIC HOSPITAL DISTRICT #2,                 )       FILED: February 11,2019
                                             )
                      Appellant.             )

       VERELLEN, J. —A union employee working for a public employer does not

waive her ability to bring statutory wage and hour claims in a judicial forum unless

her collective bargaining agreement (CBA) clearly and unmistakably does so.

Because, on its face, the CBA between the Washington State Nurses’ Association

(WSNA) and Evergreen Hospital (Evergreen) does not waive union members’

abilities to enforce their statutory rights in a judicial forum, the trial court correctly

denied Evergreen’s motion to compel arbitration.

       Even if Evergreen had the right to compel arbitration under the CBA, it

waived any right to do so by its conduct. A litigant waives its right to invoke

arbitration where it knows of its right to arbitrate and engages in conduct
No. 77694-1 -1/2


inconsistent with seeking arbitration, such as actively litigating and passing an

obvious opportunity to assert that right. Evergreen noted its right to arbitrate in its

answer to Jeoung Lee’s initial complaint. Evergreen actively litigated the dispute

for nine months and then opposed Lee’s motion to continue the impending trial

date, declaring it was ready to litigate as scheduled. Three weeks later, Evergreen

filed its motion to compel arbitration. Because Evergreen knew of any right to

compel arbitration, litigated vigorously, and passed an obvious opportunity to

assert its right to compel arbitration, Evergreen waived its right.

       Therefore, we affirm.

                                        FACTS

       Lee was an emergency room nurse at Evergreen from February 2010 until

August 2016. The terms of her employment were governed by a CBA between

Evergreen and WSNA. To resolve nurses’ work-related grievances, the CBA

provided a set of informal procedures culminating with the option of arbitration.

The CBA also contained a provision about nurses’ meal and rest breaks.

       Lee filed a putative class action in November 2016 with herself as the sole

representative plaintiff alleging that Evergreen denied emergency room nurses

their statutorily guaranteed rest and meal breaks. Evergreen filed an answer in

December denying that class certification was appropriate and raising an

affirmative defense alleging that Lee “failed to exhaust the grievance and

arbitration process under the applicable collective bargaining agreement.”1 On

       1   Clerk’s Papers (CP) at 10.




                                           2
No. 77694-1-U3


January 17, 2017, Lee filed a first amended complaint making identical rest and

meal break allegations.2

         Over the next six months, the parties engaged in discovery, conducted

depositions, disagreed about trial dates, and disputed class certification. Lee also

sent out class notices to over 500 nurses after the court certified the proposed

class.

         On July 26, Evergreen deposed class member Sherri McFarland. Soon

after, Lee moved to continue the trial date from November of 2017 to March of

2018 and to amend her complaint by adding McFarland as a representative

plaintiff. Evergreen opposed Lee’s motion to continue and argued trial should go

forward as scheduled. The court granted Lee’s motion to continue.

         On August 15, the court also granted Lee’s motion to file her second

amended complaint, which is the operative complaint. Two weeks later,

Evergreen filed its motion to compel arbitration and alleged “Plaintiffs’ second

amended complaint, recent discovery requests, and deposition testimony of class

representatives now make clear that the claims arise under the [CBA].”3 The court

denied Evergreen’s motion to compel arbitration.

         Evergreen appeals.



        Lee originally filed to certify a class under CR 23(b)(2), and Evergreen
         2
moved to dismiss because she sought damages. The first amended complaint
was essentially the same, except for seeking class certification pursuant to
CR 23(b)(3).
      ~ CP at 544.




                                           3
No. 77694-1-1/4


                                      ANALYSIS

       We review de novo denial of a motion to compel arbitration.4 We also

review de novo whether a party waived the right to compel arbitration.5

Whether The CBA Requires Arbitration

       Evergreen contends the CBA compels binding arbitration of all class claims

because Lee’s alleged violations arise from section 7.7 of the CBA, not from any

statute or regulation.6

       The Federal Arbitration Act (FAA)7 generally applies to CBAs.8 We apply

federal substantive law to any arbitration agreement within the coverage of the

FAA.9 When reviewing a motion to compel arbitration, we consider “whether the

arbitration agreement is valid” and ‘‘whether the agreement encompasses the


       ~ Cox v. Kroqer Co., 2 Wn. App. 2d 395, 403, 409 P.3d 1191(2018). The
parties debate whether a motion to compel arbitration may be made as a general
motion or whether it must be made pursuant to CR 12(c) or CR 56. But the issue
is purely academic because Evergreen advised the trial court it was moving
pursuant to CR 12, and both parties urge us to consider materials outside the
pleadings. Thus, our review is de novo regardless of which civil rule governed
Evergreen’s motion to compel arbitration.
       ~ Romney ex rel. Estate of Romney v. Franciscan Med. Gm., 199 Wn. App.
589, 602, 399 P.3d 1220, review denied, 189 Wn.2d 1026 (2017).
       6 Evergreen addresses Lee and McFarland’s individual claims separately
from class claims and contends both must be submitted to arbitration. Because
Evergreen did not appeal class certification, and we do not consider the underlying
issues—e.g., class certification—on appeal of a motion to compel arbitration,
Peninsula Sch. Dist. No. 401 v. Public Sch. Emp. of Peninsula, 130 Wn.2d 401,
413, 924 P.2d 13 (1996), we treat all claims as class claims.
       ~ 9 U.S.C. §~ 1-14.
       ~ Cox, 2 Wn. App. 2d at 403.
         ki. at 403-04.



                                          4
No. 77694-1-1/5


claims asserted.”1° If both criteria are met, then Washington courts order

arbitration in most instances.11 The parties do not dispute the validity of the CBA.

The critical question is whether Lee’s claims are statutory or contractual.12

       Evergreen relies on RCW49.12.187 to argue Lee’s claims are contractual

because the statute gives public employers and public employee unions the ability

to negotiate CBAs “that specifically vary from or supersede, in part or in total, rules

adopted under this chapter regarding appropriate rest and meal periods.”13 But

section 7.7 does not vary from or supersede WAC 296-126-092. And this CBA’s

grievance process does not encompass statutory claims.

       Article 16 in the CBA provides a four-step grievance process.14 The CBA

defines a grievance as “an alleged breach of the express terms and conditions” of



       10k~. at 404 (quoting Wiese v. CACH, LLC, 189 Wn. App. 466, 474, 358
P.3d 1213 (2015)).
      1~ Estate of Romney, 199 Wn. App. at 596-97.

       12  Evergreen argues this court lacks the authority to compare the CBA with
meal and rest break regulations because issues of arbitrability must be resolved
by an arbitrator. But threshold questions around arbitrability—questions about
“whether the parties have submitted a particular dispute to arbitration”—should be
resolved by courts unless the parties clearly and unmistakably provided otherwise
in their CBA. Martin v. Yasuda, 829 F.3d 1118, 1123 (9th Cir. 2016) (quoting
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 5. Ct. 588, 154
L. Ed. 2d 491 (2002)); accord FutureSelect Portfolio Mcimt., Inc. v. Tremont Grp.
Holdings, Inc., 190 Wn.2d 281, 287, 413 P.3d 1(2018). Because the CBA does
not provide otherwise, we determine if Lee’s claims are arbitrable.
        13 RCW49.12.187.

       14First, a nurse must present her written grievance to her supervisor.
Second, if unresolved, she must present her written grievance to the chief nurse
executive. Third, if still unresolved, the nurse must present her grievance to an
administrator. Fourth, “[ijf the grievance is not settled on the basis of the foregoing



                                           5
No. 77694-1-116


the agreement.15 The terms of this CBA do not allow an alleged statutory breach

to be grieved under this narrow definition.

       Chapter 49.12 RCW authorizes the creation of regulations about meal and

rest periods for employees, which are defined in WAC 296-126-092:

              (1) Employees shall be allowed a meal period of at least thirty
       minutes which commences no less than two hours nor more than
       five hours from the beginning of the shift. Meal periods shall be on
       the employer’s time when the employee is required by the employer
       to remain on duty on the premises or at a prescribed work site in the
       interest of the employer.

             (2) No employee shall be required to work more than five
       consecutive hours without a meal period.

              (3) Employees working three or more hours longer than a
       normal work day shall be allowed at least one thirty-minute meal
       period prior to or during the overtime period.

              (4) Employees shall be allowed a rest period of not less than
       ten minutes, on the employer’s time, for each four hours of working
       time. Rest periods shall be scheduled as near as possible to the
       midpoint of the work period. No employee shall be required to work
       more than three hours without a rest period.

              (5) Where the nature of the work allows employees to take
       intermittent rest periods equivalent to ten minutes for each 4 hours
       worked, scheduled rest periods are not required.
Section 7.7 of the CBA addresses meal and rest periods for nurses:

       Meal periods and rest periods shall be administered in accordance
       with state law (WAC 296-126-092). Nurses shall be allowed an
       unpaid meal period of one-half (1/2) hour. Nurses required by the
       Employer to remain on duty during their meal period shall be
       compensated for such time at the appropriate rate of pay. All nurses

procedures, [WSNA] may submit the issue in writing to final and binding
arbitration.” CP at 107.
        15 CP at 106 (emphasis added).




                                          6
No. 77694-1-1/7


      shall be allowed a rest compensated for such time at the appropriate
      rate of pay. All nurses shall be allowed a rest period of fifteen (15)
      minutes on the Employer’s time, for each four (4) hours of working
      time.~1 6]
      Contrary to Evergreen’s contentions, section 7.7 in the CBA merely

comports with WAC 296-126-092. Section 7.7 states meal and rest breaks ‘shall

be administered in accordance with” WAC 296~126~092.17 Notably, the regulation

is more extensive than section 7.7 and addresses matters on which the CBA is

silent.18 For example, section 7.7 does not provide guidance on when nurses can

take rest breaks. WAC 296-126-092(4) requires that rest periods be scheduled as

near as possible to the midpoint of an employee’s work period. Also, section 7.7

does not explain when employees can take meal breaks.19 ButWAC 296-126-

092(2) requires that “[nb employee shall be required to work more than five

consecutive hours without a meal period.” As section 7.7 states, administration of

the CBA necessarily relies on compliance with the regulation rather than the CBA

varying from or superseding the regulation.


      16   CP at 93.
      17   CP at 93.
      18   Compare CP at 93 (section 7.7 of the CBA), with WAC 296-126-092.
      19  Throughout its briefing and at oral argument, Evergreen repeatedly
claimed that the CBA provides only one meal break per 12-hour shift. But this is
misleading. The section of the CBA Evergreen cites to for this fact is an
addendum to the CBA applicable only to nurses working a “combined shift
schedule” with both eight and 12-hour shifts. CP at 198. Generally, though,
nurses working 12-hour shifts would work three 12-hour shifts within a seven day
period. Because Lee and McFarland only worked 12-hour shifts, the combined
shift schedule would not have applied to them. Instead, section 7.7, rather than
the addendum, governed their meal and rest breaks.



                                         7
No. 77694-1-1/8


      Evergreen makes much of the fact that section 7.7 provides for a 15-minute

rest period, whereas WAC 296-126-092(4) provides for a rest period of “no less

than ten minutes.”20 But 15 minutes is “no less than ten minutes.” The 15-minute

rest period merely reflects compliance with rather than variance from the

regulation. Also, Lee’s claim is for missed rest breaks. The potential duration of a

rest break is irrelevant if the break never begins or was less than 10 minutes.

       Evergreen also relies on deposition testimony from McFarland and other

class members to argue Lee’s claims are contractual rather than statutory. But

arguable differences between class claims pled in the complaint and snippets of

plaintiffs’ testimony do not recast Lee’s claims as Evergreen wants them to be.21

Specifically, Evergreen contends that McFarland’s testimony about missed breaks




      20   See, e.g., Appellant’s Br. at 23-25 (‘The CBA grants nurses 15-minute
rest breaks, not the 10 minutes provided by WAC 296-126-092(4).      .   ~f nurses
                                                                         .   .


missed their 15-minute rest breaks and were not paid, that is a ‘breach of the
express terms and conditions’ of the CBA and must be resolved through the CBA’s
grievance process, culminating in arbitration.”).
        21 Evergreen points to CR 15(b) and related cases as authority for its
contention. But neither CR 15 nor the cases Evergreen cites apply here.
“CR 15(b) is applicable in general terms to those occasions when the course of the
trial departs so materially from the image of the controversy pictured in the
pleadings that it becomes necessary to adjust the pleadings to reflect the case as
it was actually litigated in the courtroom.” Harding v. Will, 81 Wn.2d 132, 136, 500
P.2d 91(1972). “Where evidence raising issues beyond the scope of the
pleadings is admitted without objection, the pleadings will be deemed amended to
conform to the proof.” Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 766-67,
733 P.2d 530 (1987). CR 15(b) is not an invitation to recast one party’s claims at
the behest of the opposing party based on highly disputed characterizations of
cherry-picked deposition testimony.



                                          8
No. 77694-1-1/9


shows her claims arise under the C BA,22 but the rest and meal breaks provided by

the CBA accord with state law.23 And Lee’s complaint alleges Evergreen failed to

provide any rest breaks regardless of each break’s duration. Neither the CBA nor

plaintiffs’ testimony converts this statutory claim into a contractual one.

       Evergreen contends that all disputes between parties to a CBA are

presumptively subject to arbitration unless specifically excluded. This argument is

not persuasive because it fails to recognize the source of the rights Lee asserts in

her complaint.

       The “Steelworkers Trilogy,”24 which sets out the principles governing

arbitration of public employee labor disputes governed by a CBA, strongly favors




       22  ~ Appellant’s Br. at 14-16 (“I think if the union contract states that
they’re required to give you a rest break within a certain period of time, then if they
do not give you that, they ought to pay you for it, yes.”) (quoting CP at 589-90).
        23 Evergreen also relies on testimony from a single class member to argue

Lee’s claims rely on the “CBA’s ten-minute continuous and 15-minute total
standards” for rest breaks. Appellant’s Br. at 24. But Lee’s expectation of a
continuous 10-minute break does not originate in the CBA. WAC 296-126-092(4)
requires a rest break of at least 10 minutes, while WAC 296-126-092(5) merely
allows for short, intermittent breaks over four hours to add up to a single 10-minute
break. Whether some nurses take advantage of WAC 296-126-092(5) is a
question germane to class certification and damages, neither of which are before
us. Also, this argument admits that nurses can satisfy the break requirement in
their CBA by totaling their short breaks over four hours even though this procedure
is available only through WAC 296-1 26-092(5) and not section 7.7 of the CBA. It
shows the CBA being administered by the regulation rather than superseding it.
        245~ United Steelworkers v. Am. Mfq. Co., 363 U.S. 564, 80 S. Ct. 1343,
4 L. Ed. 2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 80 5. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers v.
 Enter. Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960).



                                           9
No. 77694-1 -1/10


arbitration of contractual disputes within the scope of an arbitration provision.25

But a public or private employee’s statutory rights are distinct from her contractual

rights.26 Even where a CBA contains a provision that is coextensive with a

statutory right, the ultimate question is what the law requires; “and that is not a

question which should be presumed to be included within the arbitration

requirement.”27

       Moreover, arbitration clauses in CBAs differ from arbitration clauses in

bilateral employment contracts, particularly when it comes to statutory rights.28

Consequently, an employee retains the ability to enforce her statutory rights in

court unless the employees clearly and expressly agreed in the CBA to arbitrate

their statutory claims.29 The CBA must “explicitly state[j” in “clear and


       255~    RCW 41 .56.122(2) (“A collective bargaining agreement may.       .



(2) Provide for binding arbitration of a labor dispute arising from the application or
interpretation of the matters contained/n a [CBA].”) (emphasis added); Mount
Adams Sch. Dist. v. Cook, 150 Wn.2d 716,723,81 P.3d 111 (2003) (quoting
Peninsula Sch. Dist., 130 Wn.2d at 413-14) (summarizing principles derived from
the Steelworker’s Trilogy)).
        26 Vega v. New Forest Home Cemetery, LLC, 856 F.3d 1130, 1134 (7th Cir.
2017); Civil Serv. Comm’ of City of Kelso v. City of Kelso, 137 Wn.2d 166, 175,
969 P.2d 474 (1999); see Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 78-
80, 119 S. Ct. 391, 142 L. Ed. 2d 361 (1998) (concluding that the presumption
favoring arbitrability in the Steelworker’s Trilogy was inapplicable to a statutory
claim).
        27 Wright, 525 U.S. at 79.

       28~g~,  Colev. Burns Int’l Sec. Servs., 105 F.3d 1465, 1473-79 (D.C. Cir.
1997) (discussing the historic background of the role of arbitration and
distinguishing contractual and statutory claims).
       29 14 Penn Plaza LLC v. Pvett, 556 U.S. 247, 258-59, 264, 129 5. Ct. 1456,

173 L. Ed. 2d 398 (2009) (holding that employees subject to a CBA must arbitrate
statutory claims where the CBA’s “arbitration provision expressly covers both



                                           10
No. 77694-1-I/il


unmistakable language” that employees waive their ability to enforce statutory

rights in court.3°

       In Vega v. New Forest Home Cemetery, LLC, a union employee working

under a CBA sued his former employer to collect unpaid wages.31 The employee

brought claims under the Fair Labor Standards Act (FLSA)32 and Illinois state

wage law.33 The CBA addressed the employee’s wages, set out a mandatory

four-step grievance process to resolve disputes, and explicitly defined grievances

to include disputes over pay.34 The court held the employee could sue in court to

enforce his statutory wage rights under the FLSA because nothing in the CBA

referenced the statute.35 Because the CBA did not explicitly reference the FLSA,

there was nothing clear and unmistakable in the CBA compelling the employee to

assert his statutory rights through the grievance process.36


statutory and contractual discrimination claims.”) (emphasis added); Wright, 525
U.S. at 79 (“[A]ny CBA requirement to arbitrate [a statutory claim] must be
particularly clear.”).
       30 Vega, 856 F.3d at 1134 (citing 14 Penn Plaza, 556 U.S. at 258-59); Cox,
2 Wn. App. 2d at 404; ~f. Kelso, 137 Wn.2d at 177 (“[W]here the two appeal
processes are concerned with different substantive rights, this court will not
impose an election of remedies clause [in a CBA] where none was bargained for
by the parties.”).
       31 856 F.3d 1130, 1131 (7th Cir. 2017).

       32   29 U.S.C.   § 206(b).
       33Vega, 856 F.3d at 1132.
         ki. at 1133. Notably, the mandatory grievance process in Vega
authorized arbitration on the demand of either the union or the employer. ki. at
1131 nI.
       35k1.at 1135.
       36 Id.




                                         11
No. 77694-1-1/12


       Similarly, this court recently held in Cox v. Kroqer Co. that an arbitration

provision in a union employee’s CBA did not waive his ability to bring statutory

wage and hour claims in court.37 The employee brought a class action against his

former employer to collect wages allegedly denied in violation of state wage

laws.38 Because neither the CBA’s wage nor grievance provisions identified or

even referenced any wage statutes covered by the agreement, the CBA did not

“clearly and unmistakably” waive his ability to enforce his statutory rights in court.39

The court affirmed the trial court’s denial of the employer’s motion to compel

arbitration.4°

       By contrast, the Supreme Court held in 14 Penn Plaza LLC v. Pyett that a

union employees’ CBA waived their ability to enforce statutory rights in court.41

The employees alleged discrimination in violation of the federal Age Discrimination

in Employment Act of 1967 (ADEA).42 But the employees’ CBA explicitly provided

that all employment discrimination claims, including those brought under the

ADEA, would be subject to the contract’s grievance provision requiring binding

arbitration “as the sole and exclusive remedy for violations.”43 The court reasoned



        372Wn. App. 2d 395, 405, 409 P.3d 1191 (2018).
        38 kI. at 399-400.

             kI. at at 404-05.
             Id. at 405
        41   556 U.S. 247, 251-52, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009).
        42   29 U.S.C.   § 621.
             ki. at 251-52.



                                           12
No. 77694-1-1/13


the CBA “clearly and unmistakably” required arbitration because the discrimination

section explicitly stated ADEA claims were arbitrable.44

       Here, as in Vega and Cox, article 16 makes no reference of any kind to any

statute orto statutory rights. In addition, article 16 narrowly defines a grievance as

an “alleged breach of the express terms and conditions of the [CBA],”45 which

WAC 296-126-092 is not. And unlike 14 Penn Plaza, no part of the CBA explicitly

waives Lee’s ability to enforce her statutory rights in court. Lee’s complaint

alleges that she and her fellow class members “did not receive meal and rest

breaks violat[ing] RCW 49.12 and WAC 296~126~092.”46 The complaint does not

reference breach of any contractual term, and the face of the CBA shows it does

not supersede or vary from WAC 296-126-092.~~

       Article 16 provides the option of submitting unresolved grievances to

binding arbitration, rather than mandating arbitration in all instances.48 And, as in


         Id. at 260.
       ~ CP at 106.
       46   CP at 439.
       ~ We note that our Supreme Court has held that a CBA may not abrogate a
worker’s right to periodic rest periods under chapter 49.12 RCW or WAC 296-1 96-
092, and the statute must “operate as a base” from which parties may negotiate a
CBA that “enhance[sj or exceed[s] those minimum standards.” Wingert v. Yellow
Freight Sys., Inc., 146 Wn.2d 841, 852, 50 P.3d 256 (2002) (quoting Wingert v.
Yellow Freight Sys., Inc., 104 Wn. App. 583, 596, 13 P.3d 677 (2000)). Thus,
variances are still actionable as statutory claims to the extent the CBA abrogates
an emergency room nurse’s ability to enjoy the minimum rest and meal breaks
guaranteed by the statute.
        48 CP at 107 (“If the grievance is not settled on the basis of the foregoing
procedures, [WSNA] may submit the issue in writing to final and binding
arbitration.”) (emphasis added).



                                           13
No. 77694-1-1114



~    the CBA’s grievance provisions make no mention of any statutory rights and
apply only to a breach of the agreement’s express terms. Lee’s complaint does

not implicate the CBA and, moreover, the CBA does not clearly and unmistakably

waive Lee’s ability to bring individual statutory claims in court.49

       Evergreen contends, though, 14 Penn Plaza, Vega, and ~ç~ç are inapposite

because those employees were privately employed whereas Lee was a public

employee with a CBA subject to Washington’s Public Employee Collective

Bargaining Act (PECBA).5° According to Evergreen, PECBA presumes that an

employee’s disputes with her public employer are subject to arbitration absent “a

clear and unmistakable carve-out” because PECBA “provides an express waiver

of a judicial forum for employee statutory claims on matters covered in the CBA.”51

       First, PECBA does not presume or mandate arbitration of employees’

statutory claims. PECBA merely allows that a CBA “may.          .   .   [pjrovide for binding

arbitration of a labor dispute” arising from “matters contained in” the agreement.52

The parties to a CBA are free to collectively bargain for particular dispute

resolution procedures. PECBA mandates neither arbitration nor litigation. And, as

discussed, Lee’s statutory claims do not arise from “matters contained in” the

CBA.


       ~ 14 Penn Plaza, 556       u.s. 258-59; Wright,   525 U.S. at 79; Cox, 2 Wn. App.
2d at 404.
       50 Ch. 41.56 RCW.

        51   Appellant’s Supp. Br. at 5-6.
        52   RCW 41 .56.122(2).




                                             14
No. 77694-1 -1115


       Second, our Supreme Court recognized in Peninsula School District No.

401 v. Public School Employees of Peninsula that PECBA is not implicated where

only “statutorily created private rights” are allegedly harmed by an employer’s

conduct.53 In Peninsula, a school district declined to recognize a grievance filed

jointly by a union and its member because the district argued the matter grieved

fell outside the bounds of the CBA.54 Thus, the court had to address whether the

matter could be and was collectively bargained for.55 The Peninsula court

distinguished that case from Shoreline Community Collecie District No. 7 v.

Employment Security Department56 because Peninsula did not involve a waiver of

private statutory rights.57

       In Shoreline, the community college argued that an English instructor was

not entitled to unemployment benefits because his CBA calculated his work hours

such that he could not meet the statutory minimum to receive benefits.58 The

community college further contended the CBA controlled over conflicting

provisions of the Employment Security Act,59 effectively waiving the instructor’s

right to receive unemployment benefits.6° The court disagreed and held that a


       ~~130 Wn.2d 401, 412, 924 P.2d 13(1996).
       ~ kzl. at 403-05.
       55kLat409.
       56120 Wn.2d 394, 842 P.2d 938 (1992).
       ~~130 Wn.2d at 412.
       58120 Wn.2d at 401-02.
       ~ Oh. 50.04 RCW.
       60120 Wn.2d at 401-02.



                                         15
No. 77694-1-1116


contractual waiver of the right to unemployment benefits was void as contrary to

public policy because the right to benefits serves a public policy purpose; the

court’s analysis never considered PEC BA.61

       Because the CBA does not clearly and unmistakably waive Lee’s ability to

enforce her statutory rights in court and PECBA is not germane, the court did not

err in denying Evergreen’s motion to compel arbitration.62


      61    j~ at 410. We also note that PECBA’s stated purpose is to provide “‘a
uniform basis for implementing the right of public employees to join  ...  and to be
represented by [labor] organizations in matters concerning their employment.”
Peninsula, 130 Wn.2d at 406-07 (quoting RCW 41.56.010). And cases cited by
Evergreen implicating PECBA all involve infringements on a union’s ability to
represent its members. Peninsula, 130 Wn.2d at 403-04, 407 (school district
refused to comply with CBA and enter arbitration after the union filed a grievance
in conjunction with a terminated employee); Municipality of Metro. Seattle v. Pub.
Emp’t Relations Comm’n, 118 Wn.2d 621, 624, 631-34, 826 P.2d 158 (1992)
(employer refused to comply with an order from the Public Employment Relations
Commission mandating arbitration to advance the collective bargaining process
between it and a union); Rose v. Erickson, 106 Wn.2d 420, 421-22, 721 P.2d 969
(1986) (employer refused to recognize a union employee’s grievance filed
pursuant to terms of the CBA); Nucleonics All., Local Union No. 1-369, Oil, Chem.
& Atomic Workers Int’l Union, AFL-CIO v. Washington Pub. Power Supply Sys.
(WPPSS), 101 Wn.2d 24, 25-27, 677 P.2d 108 (1984) (union soughtto represent
nonunion employees and employer opposed its efforts); SEIU 775 v. State Dep’t of
Soc. & Health Servs., 198 Wn. App. 745, 396 P.3d 369 (holding that PECBA does
not prohibit a public employer’s release of employees’ names where the
employees’ union intervened to enjoin release of members’ names under the
Public Records Act), review denied, 189 Wn.2d 1011(2017); The Council of
County. & City Employees, AFSCME, AFL-CIO v. Spokane County, 32 Wn. App.
422, 647 P.2d 1058 (1982) (employer refused to recognize and arbitrate a
grievance filed pursuant to CBA with the union). Here, by contrast, Evergreen’s
conduct implicates only private statutory rights and not collective bargaining rights.
As in Shoreline Community College, PECBA does not appear to be germane to
this litigation.
         62 Vega, 856 F.3d at 1134; ~ 2 Wn. App. 2d at 404. Evergreen has
moved to strike portions of Lee’s supplemental briefing, which she and Evergreen
both filed at our request. First, Evergreen’s motion to strike relied exclusively on



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No. 77694-1-1/17


Whether Evergreen Waived The Right To Compel Arbitration

       Lee contends that even if the CBA required arbitration of her claims,

Evergreen waived its right to compel arbitration.

       We review de novo whether a party waived arbitration.63

       “Washington courts have long held that the contractual right to arbitration

may be waived if it is not timely invoked.”64 Because Washington has a strong

presumption in favor of arbitration, the party arguing against it bears a heavy

burden of showing that waiver occurred.65 “‘To establish waiver of the right to

arbitration, the party opposing arbitration must demonstrate (1) knowledge of an

existing right to compel arbitration; (2) acts inconsistent with that existing right; and

(3) prejudice to the party opposing arbitration resulting from such inconsistent

acts.”66 A party asserting its right to arbitration acts inconsistently with that right

where it seeks a decision on the merits of issues in the litigation67 and fails to



materials outside the appellate record in violation of RAP 17.3(a). Second,
Evergreen moved to strike only those portions of Lee’s supplemental brief arguing
that her claims are based solely on statutes, but a motion to strike is not the
appropriate vehicle for arguments on the merits of an appeal. We deny the
motion.
       63 Estate of Romney, 199 Wn. App. at 602.

       64   Otis Hous. Ass’n, Inc. v. Ha, 165 Wn.2d 582, 587, 201 P.3d 309 (2009).
       65   Estate of Romney, 199 Wn. App. at 602.
       66   kI. at 601-02 (internal quotation marks omitted) (quoting Wiese, 189 Wn.
App. at 480).
         67 Martin, 829 F.3d at 1125; Petroleum Pipe Ams. Corp. v. Jindal Saw, Ltd.,
575 F.3d 476, 480 (5th Cir. 2009); see Otis Housing Ass’n, 165 Wn.2d at 588,
(litigating a parallel action before invoking right to arbitrate in a separate action on
same merits waives the right); Naches Valley Sch. Dist. No. JT3 v. Cruzen, 54 Wn.



                                           17
No. 77694-1 -1/18


assert its right at “‘obvious opportunities” to do so.68 “Simply put,      .    .   .   a party

waives a right to arbitrate if it elects to litigate instead of arbitrate.’69

       Evergreen agrees it did not move to compel arbitration until the parties had

been litigating for nine months.7° But it contends it did not know the claims in the

complaint arose under the CBA until after it deposed McFarland on July 26, 2017,

and Lee added McFarland as a representative plaintiff a few weeks later.71

       Lee’s meal and rest break claims against Evergreen in her second

amended complaint are identical to those in her first amended complaint and her

original complaint.72 Also, Evergreen first raised arbitration as a defense in the




App. 388, 395-96, 775 P.2d 960 (1989) (plaintiffs waived arbitration by filing for
summary judgment on the merits of their claims).
       68 Hill v. Garda CL Nw. Inc., 169 Wn. App. 685, 692, 281 P.3d 334 (2012)
(quoting Steele v. Lundgren, 85 Wn. App. 845, 853-55, 935 P.2d 671 (1997)),
rev’d on other grounds, 179 Wn.2d 47, 308 P.3d 635 (2013).
       69 Otis Hous. Ass’n,, 165 Wn.2d at 588.

       70  See Appellant’s Br. at 28-29 (Evergreen’s “motion to compel arbitration
was filed 15 days after the [c]ourt granted the motion to amend and plaintiffs filed
the [s]econd [a]mended [c]omplaint.”).
        71 See k1. at 29-30 (“The combination of McFarland’s deposition testimony,
which was given before plaintiffs sought to amend the complaint, and the [s]econd
[a]mended [c]omplaint made clear that the claims in this lawsuit arise under the
CBA and require an interpretation of the CBA’s express terms and past practices
of the parties.”).
        72 Compare CP at 439 (section VI of second amended complaint stating
claims against Evergreen: “Defendant’s practices under which Plaintiffs and the
class did not receive meal and rest breaks violate RCW 49.12 and WAC 296-126-
092.”), with CP at 5, 17 (section VI of complaint and first amended complaint
stating claims against Evergreen: “Defendant’s practices under which Plaintiff and
the class did not receive meal and rest breaks violate RCW 49.12 and WAC 296-
126-092.”).



                                              18
No. 77694-1 -1119


answer it filed December 22, 2016.~~ Evergreen cannot now contend it did not

know these claims might be arbitrable where its answer raised arbitration as an

affirmative defense.

       Evergreen behaved inconsistently with a party seeking to arbitrate. Soon

after McFarland’s deposition, Lee moved to continue trial from November 2017 to

March 2018. Lee also sent Evergreen a copy of her proposed second amended

complaint adding McFarland as a representative plaintiff. Evergreen opposed the

motion to continue, and stated it “is prepared to try this case on November 6,

2O17.”~~ Also, Evergreen was fully aware of McFarland’s deposition testimony at

the time it insisted on litigating. Evergreen specifically argued against granting

Lee a continuance because McFarland had already been deposed and “[a] second

class representative adds nothing to the present case.”75 Put simply, Evergreen

elected to litigate and missed an obvious opportunity to assert its right to arbitrate.

       Lee would be prejudiced by granting Evergreen’s motion to compel. “When

a party has expended considerable time and money due to the opposing party’s

failure to timely move for arbitration and is then deprived of the benefits for which it

has paid by a belated motion to compel, the party is indeed prejudiced.”76 For

example, there is prejudice when a party loses a motion on the merits and



       ~ CP at 10.
       ~ CP at 1793.
       ~ CP at 1798.
       76   Martin, 829 F.3d at 1127.




                                           19
No. 77694-1 -1/20


effectively attempts to relitigate it by invoking arbitration77 or when a party “too long

postpones” invocation of arbitration and causes the opposing party ‘to incur

unnecessary delay or expense.”78

       Here, Lee will be prejudiced if Evergreen is allowed to belatedly compel

arbitration. Lee asserts she incurred over $140,000 in fees and costs from formal

discovery and pretrial litigation before Evergreen moved to compel arbitration.

Granting Evergreen’s motion would also prejudice Lee by giving Evergreen a

second chance on the critical substantive issues, such as class certification, that it

litigated and lost.79

       Evergreen analogizes to Hill v. Garda CL Northwest Inc. to argue it did not

waive its right to compel arbitration.8° In Hill, a group of employees filed a putative

class action against an armored car company for alleged wage violations.81 The



       ‘~   Steele, 85 Wn. App. at 859.
       78 Schuster v. Presticie Senior Mcjmt., LLC, 193 Wn. App. 616, 643, 376
P.3d 412 (2016); Steele, 85 Wn. App. at 859. Evergreen argues that its motion to
compel arbitration was not belated because it occurred only two weeks after the
court approved Lee’s second amended complaint. But this ignores the preceding
nine months of litigation during which Evergreen knew it could arbitrate, and it
attempts to elevate chronology over conduct.
       ~ Steele, 85 Wn. App. at 859; see Martin, 829 F.3d at 1128 (holding the
defendant waived arbitration “because the plaintiffs would be prejudiced if the
defendants got a mulligan on a legal issue it chose to litigate in court and lost”);
Riverside Publ’q Co. v. Mercer Publ’q LLC, 829 F. Supp. 2d 1017, 1021-23 (W.D.
Wash. 2011) (finding prejudice from the plaintiff’s “forum shopping” when it
belatedly moved to compel arbitration only after losing substantive pretrial
motions).
       80 169 Wn. App. 685, 691-94, 281 P.3d 334 (2012).

       81   kI.at 688.




                                           20
No. 77694-1-1/21


company asserted its right to compel arbitration in its answer and began to engage

in discovery, but it did not move to compel arbitration for over one year.82 But

during that year, the parties agreed to delay litigation while awaiting the outcome

in a very similar case83 being litigated in this court.84 After the similar case was

decided, the parties filed a joint stipulation agreeing that the matter was

arbitrable.85 Also, both parties endeavored to resolve the dispute through

mediation prior to committing to arbitration or litigation.86 After the company finally

moved to compel arbitration, this court held it had not waived the right to arbitrate

“[b]ecause the delay in filing the motion to compel resulted in part from an effort to

resolve this case without resorting to litigation and Garda asserted its arbitration

rights in its answer.”87

       Evergreen’s conduct in this case bears little similarity to that of the armored

car company. Unlike the company in Hill, Evergreen demanded to litigate this

case in court before seeking arbitration. Also, nothing in the appellate record

shows an effort by either party to resolve this dispute out of court.

       Evergreen’s knowledge of its ability to invoke arbitration, its litigation

conduct, and the potential prejudice to Lee demonstrate waiver of the right to


       82 Id. at 688-89, 691.
       83 Pellino v. Brink’s Inc., 164 Wn. App. 668, 267 P.3d 383 (2011).

       84[.jjfl,   169 Wn. App. at 691.
       85   Id.
       86kLat692.
       87 Id.




                                           21
No. 77694-1 -1/22


arbitrate. Accordingly, we conclude Evergreen waived the right to arbitrate when it

elected to litigate instead of arbitrate.88

       For the foregoing reasons, we affirm.




                                                         AL)!



WE CONCUR:




                        0




       88   Otis Hous. Ass’n, 165 Wn.2d at 588.




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