                                                                         FILED
                                                                     FEBRUARY 9, 2017
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




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

JUDITH Q. CHAVEZ, KATHLEEN                    )
CHRISTIANSON, ORALIA GARCIA,                  )         No. 33556-9-111
and MARRIETTA JONES, individually,            )
and on behalf of all similarly situated       )
registered nurses employed by Our Lady        )
of Lourdes Hospital at Pasco, d/b/a           )
Lourdes Medical Center,                       )         UNPUBLISHED OPINION
                                              )
                     Petitioners,             )
                                              )
       v.                                     )
                                              )
OUR LADY OF LOURDES HOSPITAL                  )
AT PASCO, d/b/a LOURDES MEDICAL               )
CENTER and JOHN SERLE, individually           )
and in his capacity as an agent and officer   )
of Lourdes Medical Center,                    )
                                              )
                     Respondents.             )

       FEARING, C.J. -Marietta Jones, Oralia Garcia, Kathleen Christianson, and Judith

Chavez, present or former nurses at Pasco's Lourdes Medical Center, sue the hospital and

its administrator, John Serie, for allegedly failing to provide nurses with rest periods and
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


meal periods and failing to pay wages owed as a result of the denial of the periods. The

nurses appeal from the trial court's refusal to certify the lawsuit as a class action. The

trial court ruled that the requirements of CR 23(a) were met, but that the nurses failed to

establish one of the three alternative prerequisites under CR 23(b), including

predominance and superiority as required by CR 23(b)(3). Because the trial court is in

the best position to determine whether a class action is the superior method of resolving a

lawsuit, we defer to the trial court and affirm its denial of certification. We conclude the

trial court did not abuse its discretion in this important decision.

                                           FACTS

       Lourdes Medical Center is a nonprofit hospital located in Pasco and serving the

Tri-Cities region. The hospital maintained or maintains nine departments: an emergency

room department, an obstetrics and birthing department, an intensive care unit, a medical-

surgical unit, a same day surgery unit, gastrointestinal services department, a

rehabilitation center, a post anesthesia care or observation unit, and an operating room

department. In June 2013, the hospital, for financial reasons, closed its obstetric unit.

Lourdes employs more than one hundred registered nurses, on a full-time, part-time, and

per diem basis. Most nurses work twelve-hour shifts.

       This lawsuit concerns how Lourdes accounted for nurse's work time and afforded

meal and rest breaks. Because the sole issue on appeal concerns certification of a class

action, our statement of facts focuses on facts relevant to certification more than facts

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No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


relevant to the underlying causes of action against Lourdes Medical Center. Still the

facts regarding the substantive claims hold relevance. The nurses claim that: ( 1) Lourdes

systematically failed to record and compensate nurses for missed rest periods, (2) the

hospital failed to provide scheduled rest periods as required by law and its own policies,

(3) the hospital failed to compensate nurses for on call meal periods, (4) Lourdes failed to

provide nurses with a second meal period during twelve-hour shifts, and (5) Lourdes

failed to compensate nurses for missed meal periods by discouraging nurses to report

missed meal periods. Although we do not mention Lourdes' administrator John Serie

again, the reader may assume that our analysis of claims against him mirror our analysis

of claims against Lourdes Medical Center.

       The order denying class certification omits a reference to the declarations and

affidavits that the trial court reviewed when considering the motion for certification.

Therefore, we consider all testimony regardless of whether the testimony addressed a

summary judgment motion or the class certification motion. The parties inundated the

trial court and inundate us with declarations and deposition excerpts, not that there is

anything wrong with that. The nurses' testimony focuses on the rest period, meal period,

and worktime accounting at the hospital. Lourdes' testimony focuses on differences

between schedules and tasks of individual nurses and nurses by department and by shift.

The declarations from the respective parties and their witnesses often conflict.

       The parties agree that Lourdes Medical Center utilized a web-based timekeeping

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No. 33556-9-111
Chavez v. Our Lady of Lourdes Hosp.


system called Kronos to record employee work time. Employees used Kronos to clock

the beginning of work and clock the ending of work. Kronos automatically deducted

thirty minutes from an employee's compensable time for a meal period for any shift

longer than five hours. When an employee clocked out, the employee could account for a

missed meal period by canceling the automatic meal period deduction. When an

employee reported a missed meal period, Lourdes paid for the half hour at the appropriate

regular or overtime rate. The Kronos system did not record rest periods or missed rest

periods.

       Lourdes Medical Center maintained no policy that directed nurses to report missed

rest breaks to the hospital payroll office and had no formal process for a nurse to report a

missed break. Before March 2013, the hospital had no knowledge of any nurse being

paid for a missed rest period, maintained no policy that provided for payment for a

missed rest break, and never informed employees of the right to receive additional

payment for a missed rest break.

       We now outline testimony of the plaintiff nurses and their witnesses. We will

later outline testimony of Lourdes Medical Center's witnesses.

       According to plaintiff nurses, a Washington regulation prohibits a nurse assigned

to a patient of abandoning the patient and requires every nurse to transfer a patient's care

to another qualified nurse when leaving an assignment. If a Lourdes Medical Center

nurse abandoned a patient assignment without a transference, she would suffer discipline.

                                             4
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


This rule imposes an obstacle for a nurse with a patient assignment from taking a rest

break. Whether a nurse exercises a rest break depends on whether the hospital provides

her with another nurse to transfer patient care or the fortuitous event of no patient to care

for during a break period. The hospital maintains no procedure of relieving nurses

assigned to a patient's care.

       Lourdes Medical Center generally assigns nurses to twelve-hour shifts. The

hospital did not allow nurses two meal periods during these shifts. The Kronos time

electronic system failed to note that nurses, on this half-day shift, should receive two

meal breaks. The hospital maintained no system to report missed second lunches.

Nurses testified that they often worked a twelve-hour shift without a second meal break.

       According to plaintiff witnesses, a Lourdes Medical Center employee subjected

herself to discipline if she worked overtime without authorization. Therefore, if a nurse

missed a meal period and pressed the deduct cancelation button with the result that she

worked overtime during a pay period, the hospital might discipline her. Nevertheless,

plaintiffs Oralia Garcia and Marietta Jones testified that every time they reported missing

a meal period, the hospital paid each at the appropriate rate, which testimony may

conflict with the hospital's concession that no payment occurred before 2013. Garcia and

Jones also respectively testified that the hospital never disciplined them for missing meal

periods or reporting missed meal breaks.




                                              5
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


       Oralia Garcia worked as a registered nurse in Lourdes Medical Center's

emergency department from 2005 to June 25, 2012. She sometimes assisted in the

ambulatory unit. The hospital claims that each of its nine departments discretely trained

its department nurses regarding rests and meals. Garcia testified that emergency

department nurses never received unit specific training on using rest and meal periods.

She was unaware of unit policies that cover rest and meal periods.

       As part of its defense to this lawsuit, Lourdes Medical Center contends it met its

obligation to allow an employee a fifteen-minute break for every four hours worked, if

the employee periodically took small breaks from work duties and those small breaks

totaled in time fifteen minutes. Lourdes calls these breaks "intermittent" or "mini"

breaks. Presumably, under the hospital's theory, if a nurse rested by closing her eyes for

ten seconds, those seconds counted toward a fifteen-minute break. According to Oralia

Garcia, Lourdes Medical Center management told her, upon her hire, that she would

receive two fifteen-minute minute block rest periods in a twelve-hour shift. Management

never suggested to her that she take rest periods in smaller increments of time that, over

the course of the day, would equal a half hour. Oralia Garcia conceded sometimes

patient flow allowed emergency room nurses to enjoy small incremental breaks, chat

about personal matters, surf the internet, check e-mail, read magazines or newspapers, or

eat a snack.




                                             6
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.




       According to Oralia Garcia, she frequently missed rest periods. The hospital never

assigned another nurse to cover for her during a break. She never observed any nurse

transferring duties regarding a patient to another registered nurse during a rest break.

Garcia averred that the nursing commission and Lourdes Medical Center held a nurse

responsible for the care of a patient even during a time that the nurse rested. Therefore,

emergency room nurses feared taking breaks.

       Melissa Linfoot signed a declaration, in which she testified that emergency room

nurses enjoyed rest breaks. According to Oralia Garcia, Garcia worked with Melissa

Linfoot for over three hundred and fifty shifts in the emergency department. Garcia

challenges the testimony of Lin foot. Garcia observed Linfoot on many occasions work

without exercising rest or uninterrupted meal breaks.

       Oralia Garcia testified that she never reported a missed rest period or received

additional compensation for a missed period. Hospital management never instructed her

to contact her supervisor to report a missed rest period. When Garcia worked in the

ambulatory unit, unit manager Dee Hazel told her that missed rest periods were lost time.

       According to Oralia Garcia, Lourdes Medical Center never scheduled rest periods

for nurses. Garcia never refused to exercise a break or rest period when the hospital

arranged for a qualified nurse to assume patient responsibilities under protocol. Garcia

once refused to transfer a patient's care to a nurse who lacked required certifications and

                                             7
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


needed training.

       Oralia Garcia averred that, despite working twelve-hour shifts, Lourdes Medical

Center afforded her only one unpaid meal period. She further testified that she missed

ninety percent of her meal periods. She never noticed another nurse receiving two meal

breaks in a half-day shift. Garcia could not leave the hospital during meal breaks. The

hospital required her availability at all times to respond to emergencies and questions

concerning patient care.

      Lourdes Medical Center claims that it utilized Go Where You're Needed (GWYN)

nurses, or nurses that floated from department to department to relieve nurses for rest

breaks. Garcia denied that the hospital employed GWYN nurses to allow nurses breaks.

       Judith Chavez worked for the Lourdes Medical Center obstetrics department on

three twelve-hour shifts per week until the department closed in 2013. According to

Chavez, her charge nurse, during orientation, instructed her she must stay on the hospital

premises during meal periods in order to respond to emergencies. Judith Chavez testified

that family members sometimes brought her food at work during busy times when she

lacked thirty minutes of uninterrupted time to eat or when the hospital cafeteria was

closed. The family members deposited the food at the nurses' station because she

attended to patients and could not leave the obstetrics unit. She sometimes watched a

fetal monitor in the break room when exercising a meal period, for which she received no

pay. Judith Chavez also testified that she had no knowledge that she could cancel the

                                             8
                                                                                              I
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


automatic meal period deduct programmed into the Kronos system when she needed to

stay at the hospital or when work obligations interrupted a meal.

       Judith Chavez had never heard of Lourdes Medical Center' terminology of a "mini

break" or "intermittent break" until filing this lawsuit. Clerk's Papers (CP) at 144.

Chavez testified that at times she made personal phone calls and conversed with

coworkers, but these events occurred when she had a patient assignment and was

expected to provide patient care for a laboring mother.

       Judith Chavez testified that Lourdes Medical Center never offered her a fifteen-

minute rest period during which she held no duties. In order to relax, she would need

fifteen minutes of uninterrupted rest after she transferred responsibility for a patient to

another nurse, not an occasional minute when under assignment. Chavez never

transferred care of a patient to another nurse in order to enjoy a fifteen-minute respite.

No one ever covered for Chavez during a rest period or a meal period.

       Judith Chavez testified that Lourdes Medical Center never informed her that she

could report a missed rest period for additional compensation. The hospital never

instructed her to contact any supervisor if she missed a rest period. After she filed suit,

Lourdes Medical Center instructed her not to claim any rest periods even if she received

no fifteen-minute uninterrupted repose but experienced intermittent brief rests.

       According to Judith Chavez, despite working only twelve-hour shifts, she never

received two meal breaks. Lourdes Medical Center informed her she could take only two

                                              9
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


fifteen-minute breaks, not three, during a twelve-hour shift. Chavez denied any obstetrics

unit specific policies with regard to rest and meal breaks.

       At the beginning of this suit, Marietta Jones worked as a registered nurse in the

observation and pre-admit units of Lourdes Medical Center. Earlier in her career, Jones

worked in all other hospital units, except the operating room. Jones served as a charge

nurse in the medical-surgical and the obstetrics departments. She usually worked twelve-

hour shifts.

       According to Marietta Jones, Lourdes Medical Center management told her that

the hospital did not pay for missed rest periods. Hospital management never informed

her that she could report a missed period. Therefore, Jones never complained about

missed breaks. The hospital never mentioned to Jones the concept of a mini or

intermittent break until after the filing of this lawsuit. The hospital then instructed Jones

not to report missed rest breaks if she received intermittent breaks. Jones never received

unit specific training regarding rest periods and knows of no policies that apply only to a

department.

       According to Marietta Jones, the obstetrics department lacked a nurse to cover for

another nurse exercising a rest break. Contrary to testimony of a supervisor, Jones never

refused a rest or meal period when offered. Once Jones' supervisor assigned another

nurse to relieve her during a lunch break, but the substituting nurse stated she could only

assist for ten minutes. Jones mentioned the nurse's statement to her supervisor Amber

                                              10
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


Champagne-Wright, who appeared agitated but directed the relief nurse to substitute for a

half hour.

          According to Marietta Jones, nurses cannot safely transfer patient duties to another

nurse for a break of two or three minutes in duration. Before the filing of suit, Jones

never observed a registered nurse transfer patient responsibility to another nurse so that

the first nurse could enjoy a respite.

          During Marietta Jones' employment with Lourdes Medical Center, the hospital

maintained a policy of one unpaid meal period during a twelve-hour shift. The hospital's

Kronos system allowed only one deduction for a lunch during a shift. Management never

informed her to use the deduct button if she missed a meal. Jones encountered difficulty

eating meals while working because of interruptions for emergencies. She could not

leave the hospital for a meal without permission. The hospital utilized GWYN nurses to

fill open shifts not to relieve nurses for meal or rest periods.

       Plaintiff Kathleen Christianson has worked for Lourdes Medical Center for over

twenty-six years and exclusively in the intensive care department since 2005. She

previously worked in all units, but the operating room unit. Lourdes also assigned her to

serve as its first cover or GWYN nurse. Nevertheless, according to Christianson, a

GWYN nurse substituted for an absent or ill nurse and rarely relieved on duty nurses.

The hospital never informed Christianson of unit specific policies regarding meal and rest

breaks.

                                               11
No. 33556-9-111
Chavez v. Our Lady of Lourdes Hosp.


       During her many years employed by Lourdes Medical Center, Kathleen

Christianson has never enjoyed a meal off premises. During all of her meal breaks, she

has responded to emergencies and doctor's instructions and answered questions from

other nurses.

       Kathleen Christianson testified that, before this suit, Lourdes Medical Center

informed her she could take two paid fifteen-minute rest periods and one unpaid half hour

meal break during a twelve-hour shift. Lourdes did not inform her she could report a

missed break and receive compensation. She never received a second meal period during

a twelve-hour shift. The hospital never informed her of the ability or right to exercise a

second meal break.

       According to Kathleen Christianson, no nurse ever covered her duties so that she

could exercise a work break. Lourdes Medical Center never relieved her from any

patient assignments during a shift. Contrary to the claim of Lourdes Medical Center,

Christianson denied ever rejecting the opportunity to exercise a rest period. She often

needed to return to work duties when taking a meal break.

       Kathleen Christianson testified that Lourdes Medical Center constructed a policy

after this lawsuit, under which policy the hospital instructs nurses to take intermittent rest

breaks rather than full fifteen-minute breaks. According to Christianson, intermittent rest

breaks do not allow a nurse to transfer patient responsibilities to another nurse.

Intermittent breaks do not provide the relaxation needed during the course of a day.

                                              12
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


          Additional nurses signed declarations that echoed the testimony of the plaintiff

nurses. Emergency room nurses Vicki Haines and Melanie Bell stated that they exercised

no breaks. Conversely, other emergency room nurses testified that day and night shift

registered nurses could usually take a thirty-minute uninterrupted meal period and rest

breaks.

          We now address testimony submitted by Lourdes Medical Center. The hospital's

declarations focused on the difference between hospital departments and work shifts,

although the declarations also addressed whether Lourdes violated wage laws. Plaintiff

Marietta Jones, in her deposition, admitted a difference in the administration of breaks

from department to department. We organize the hospital's evidence by hospital

department.

       Seventeen part-time and full-time registered nurses work ·in the emergency

department at various times on eight or twelve-hour shifts. One nurse, generally the most

experienced, serves as the charge nurse. The charge nurse assesses work-flow and

patient placement and generally lacks patient assignments. Typically, one registered

nurse works in triage, one to order supplies, and another to track patient care. The triage

nurse also forgoes patient assignments, while the remaining nurses are assigned to rooms

inside the department.

       The emergency department nursing orientation includes discussing meal periods

and rest breaks. Lourdes Medical Center does not identify ways in which the emergency

                                               13
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


room's orientation regarding breaks may differ from other departments. Generally, a

registered nurse notifies the charge nurse that he or she wishes a break, although each

charge nurse administers meal periods and breaks differently.

       The Lourdes Medical Center surgery department usually operates from 7 :00 a.m.

to 3:30 p.m., Monday through Friday, although emergency surgeries may occur at any

hour. This department enjoys a predictable patient flow since the department schedules

most surgeries in advance. A fixed schedule accommodates nurses' rest breaks and meal

periods.

       Eight full-time registered nurses work eight-hour shifts in surgery. Tasks of

surgical nurses differ from duties of nurses in other departments. Surgeries require

technical precision. Registered nurses work closely with surgeons and must hold highly

specialized skills, including knowledge of surgical equipment. Typically, one nurse

serves as a charge nurse, lacks patient assignments, and coordinates and covers breaks.

       Surgery department nurse orientation includes discussion of meal periods and rest

breaks. A surgical nurse rarely misses a meal and rest break, and, when missed,

according to Lourdes Medical Center, the hospital compensates the nurse for the hospital

missed time. The nurse notifies the charge nurse of a missed rest, and the charge nurse

records the missed period on a white board. The charge nurse assigns three registered

nurses for each two surgery rooms. A fifth registered nurse serves as a floating nurse,

assists with patient care, and covers meal periods and rest breaks. During a lengthy

                                            14
No. 33556-9-111
Chavez v. Our Lady of Lourdes Hosp.


surgery, a surgical nurse will be relieved for a rest break or meal period.

       Lourdes Medical Center also maintains a medical/surgery unit apparently separate

from the surgical department. The medical/surgical unit remains open twenty-four hours

a day, seven days per week and treats patients needing to stay at the hospital for over

twenty-four hours. In this department, registered nurses perform routine physical

assessments, administer medications, prepare patients for surgery, and monitor

postsurgery patients for complications. The nurses may assist with patient mobility,

dieting and toileting needs, check doctor orders, provide patient education and discharge

instructions, assist registered nurse students, and record treatment. The medical/surgery

unit experiences an unpredictable patient flow. Therefore, registered nurses coordinate

breaks based on personal preference and patient care.

       Full-time, part-time, and per diem registered nurses, typically on twelve-hour

shifts, work in the medical/surgery unit. Nurses rotate into the role of charge nurse. The

charge nurse has additional duties of patient admissions, assigning patients to other

nurses, and assisting in scheduling. At night, registered nurses in the medical/surgery

department routinely exercise meal and rest breaks since patients in the unit sleep.

According to Lourdes Medical Center, some registered nurses in the unit waive meal

periods on a regular basis despite coverage being offered.

       The patient acute care unit operates in tandem with the surgery department by

assessing surgical patients for pre-operative and intra-operative surgical care. Three full-

                                             15
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


time and two part-time registered nurses work eight-hour shifts in the department.

Registered nurses in the unit undergo department orientation that includes training about

meal periods and rest breaks. According to Lourdes Medical Center, a nurse in the acute

care department rarely misses rest breaks and meal periods.

       The same day surgery/ambulatory/gastrointestinal laboratory, also known as the

same day surgery department, functions from 6:00 a.m. to sometime between 3 p.m. and

6:30 p.m., depending on the day's completion of surgical procedures. This same day

surgery department enjoys a predictable patient flow because the unit schedules most

surgeries in advance. Nurses thereby experience predictable rest breaks and meal periods

within set windows of time.

       Seven full-time and three part-time registered nurses work in the same day surgery

department. Although most work twelve-hour shifts, three nurses work eight-hour shifts,

and one works two eight-hour shifts and two twelve-hour shifts.

      The observation department functions twenty-four hours per day, seven days per

week. Nevertheless, the department will temporarily close if it monitors no patients. The

observation department monitors patients coming from the emergency room and surgery

department and assists outpatients who undergo blood transfusions or receive antibiotics

or intravenous fluids. Five full-time and one part-time registered nurse, all working

twelve-hour shifts, labor in the observation department.

      Dee Hazel managed the observation department until January 2012, when Teresa

                                            16
No. 33556-9-III
Chavez v. Our Lady ofLourdes Hosp.


Pleyo assumed management. Plaintiff Marietta Jones testified that the two had different

management styles. Under Pleyo, Jones felt comfortable reporting if she missed a meal

period.

          The observation department provides training that covers department specific

procedures, including meal periods and rest breaks. Under department procedures, a

registered nurse must notify the charge nurse or coworkers of a break, but she does not

require preapproval from the manager. The transfer of patient care to another registered

nurse for meal periods or rest breaks in this unit is easier because the department serves

lower acuity patients. This process differs at night since only one registered nurse works

in the department during the night shift.

          Except when the department's patient census is high, observation department

nurses rarely miss rest breaks and meal periods. At night, observation patients usually

sleep and require less direct patient care. Night shift nurses thereby enjoy more time to

engage in personal activities. Of course, according to the nurses, a nurse remains

laboring, despite engaging in personal activities, if she must respond to calls. According

to Lourdes Medical Center, registered nurses in the observation department take breaks in

small increments throughout the shift to chat about personal matters, check Facebook or

e-mail, use cell phones, or otherwise relax.

       The intensive care unit treats patients requiring higher level care. The department

utilizes specialty equipment such as telemetry, respirators, central lines, and pacemakers.

                                               17
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


Nurses monitor medications, monitor ventilators, oversee heavy sedation, manage drips,

and engage in emergency protocol and care for critically ill patients.

       Full-time, part-time, and per diem registered nurses work in the intensive care unit

on twelve-hour shifts. One nurse serves as charge nurse on a shift. The charge nurse

coordinates patient admissions, monitors cardiac equipment, and assists with scheduling.

No registered nurse need be present in the unit if the unit houses no patient.

Nevertheless, one patient requires the presence of two qualified registered nurses. An

intensive care unit nurse can monitor only two patients at a time. In the absence of an

intensive care department patient, unit nurses may monitor medical/surgical unit patients.

       The number of intensive care unit patients varies from time to time. The unit

usually houses one to two patients per day, and may go weeks without a patient. Staffing

levels generally allow unit nurses to realize meal periods and rest breaks. The unit

delivers a department specific orientation for registered nurses, and this orientation

discusses target times and protocols for meal periods and rest breaks. When there are two

intensive care unit registered nurses, breaks and meal periods can be taken.

       According to Lourdes Medical Center, the required certification level for intensive

care unit registered nurses complicates finding relief for meal periods and rest breaks

with a high acuity patient, but another intensive care unit nurse is usually available to

provide relief. Even on busy days, unit nurses generally enjoy time to take breaks, eat, go

to the coffee shop, and text.

                                             18
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


       Cheryl Carr worked at Lourdes as supervisor of the intensive care unit. As

manager, she allowed unit registered nurses to coordinate rest and lunch breaks as they

wished. Most nurses insisted on taking breaks and lunches as they saw fit. As manager,

she observed nurses exercising mini-breaks to socialize, drink coffee, and make personal

phone calls. According to Carr, the small breaks totaled at least ten minutes for each four

hours. The intensive care unit was not as busy as other departments and allowed more

breaks for nurses. Some unit nurses refused a thirty-minute meal and instead preferred to

eat periodically. Plaintiff Kathy Christianson often refused a thirty-minute lunch break,

and Carr often reminded her to exercise the full break.

       Suzanne Hannigan serves as Lourdes Medical Center Director of Nursing

Services. She supervises at least thirty-three nurses. Hannigan fears that nurses in the

intensive care unit formed a belief that they cannot take breaks or meal periods.

Hannigan does not know the source of this belief. Management has never told nurses that

they may not exercise breaks. When Hannigan learns that a nurse missed a meal period,

she instructs the nurse to cancel the meal deduct or inform payroll.

      The inpatient rehabilitation department serves inpatients needing intense

rehabilitation following surgery or trauma. Patient flow is predictable. Registered nurses

in the department perform standard nursing tasks such as checking vitals, medication

management, handling intravenous lines, and assisting with patient transfers.

      During most months, the inpatient rehabilitation department employs four full-

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No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


time registered nurses and three per diem registered nurses, all whom work twelve-hour

shifts. The unit designates one working nurse as the charge nurse. The department may

assign other registered nurses to assist with trauma patients. On Tuesdays and

Thursdays, unit nurses attend staff meeting and family rounds. The night nurses on

Mondays also perform chart reviews for Tuesday staff meetings.

       According to Lourdes Medical Center, rehabilitation registered nurses undergo a

department specific orientation that covers meal periods and rest breaks, although the

hospital identified no differences from other departments. Nurses plan meal periods and

rest breaks at the onset of each shift. Rehabilitation nurses remain busy from 8 to 10 a.m.

and around meal times. Work slows in the inpatient rehabilitation unit by mid-morning

and between 1:00 p.m. and 4:30 p.m. because patients leave the department for therapy.

Registered nurses working night shift begin with a couple of hours of patient assessment

and care, but then patients sleep and require little attention. As a result, nurses working

in the rehabilitation department enjoy lengthy periods of downtime without patient care

or responsibilities. During this time, they chat about personal matters, use the internet, go

to the espresso bar or gift shop, make personal calls, or read.

       The obstetrics and birthing unit closed in June 2013. Until that month, the

department remained open twenty-four hours a day, seven days per week. The obstetrics

department cared for laboring mothers and postpartum mothers and babies. The

department saw unpredictability because of unscheduled births. Sometimes, the unit

                                             20
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


experienced weeks without a patient and then assisted numerous laboring mothers

simultaneously.

       Eleven full-time and two part-time registered nurses worked at various times in

obstetrics, all on twelve-hour shifts. The unit maintained a daily minimum staff of four

nurses regardless of whether patients were present. One registered nurse acted as a

charge nurse and assisted in operation of the department. The charge nurse assigned

tasks such as checking crash carts, refrigerators, the warmer, and the C-section room,

mailing phenylketonuria data, ensuring the placement of all reports in patient charts, and

addressing concerns from physicians. Ideally, two registered nurses engaged in labor and

delivery, while other nurses delivered postpartum patient care.

       Each obstetrics registered nurse received department training when meal periods

and rest breaks were discussed. Typically, a registered nurse informed the charge nurse if

he or she wished a break and gave a report about any patient status to the covering nurse.

       Due to the relatively low numbers of patients served and core staffing levels,

registered nurses in Lourdes Medical Center obstetrics unit experienced prolonged

periods of idle time, during which they performed tasks unrelated to work. Registered

nurses ate a second meal together on a slow day. Some obstetrics nurses even covered

breaks and meal periods for registered nurses in other departments. Even on days with

patients, registered nurses in obstetrics could take small breaks, for at least ten minutes

per half day, to use cell phones, check e-mail, read magazines, get coffee, and grab

                                             21
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


snacks.

       Amber Champagne-Wright, a Lourdes Medical Center supervisor, signed a

declaration representative of other declarations signed by Lourdes managers and

supervisors. Managers, supervisors and other employees discussed, in their respective

declarations specific timing as to when they exercised lunch and other breaks. They

testified to canceling the automatic deduct function in the Kronos time management

system on the rare occasion when they missed a meal. They mentioned the difference

between a calm night shift and a day shift and dissimilarities between departments.

       Amber Champagne-Wright averred that, since 2004, she has overseen several

Lourdes departments including the emergency room, ambulatory unit, observation

department, surgery room, labor and delivery unit, rehabilitation department, and medical

unit. Fifteen to twenty nurses work per shift. According to Champagne-Wright,

registered nurses, on a typical shift, received one thirty-minute unpaid lunch during the

first half of the shift. During the second half of any given shift, a registered nurse may

eat food in his or her unit. The primary factors determining whether a registered nurse

may eat during the second half of the shift is patient census and acuity of care needed.

      Amber Champagne-Wright recognized that, when she eats a meal on a unit, she

sometimes encounters interruptions. She returns later to finish her meal. All Lourdes'

department nurses suffer these interruptions. Often times, despite the interruptions, she

still accumulates thirty minutes for the second meal. Depending on how busy she is,

                                             22
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


Champagne-Wright and other nurses may enjoy two hours to eat during the second half

of the shift. The amount of time for a second meal break varies from shift to shift and

department to department.

       Amber Champagne-Wright has not suffered discipline or docked pay for

exercising a second meal break. She encourages nurses that she supervises to have a

second meal. Night shift nurses find it easier to enjoy a second full meal block.

Obtaining a second meal break was more common in the obstetrics unit. Staffing

requirements demanded nurses in the obstetrics unit at all times, even if no patients

present. Nurses in the emergency room found it most difficult to obtain a second meal.

Champagne-Wright claims that, on some units and shifts, registered nurses enjoy a half

hour to two hours without active patient duties and during which they may pursue

personal activities.

       Amber Champagne-Wright testified to differences among units. Most same day

surgery and ambulatory unit nurses work eight-hour shifts, while other nurses work

twelve-hour shifts. The typical nurse works thirty-six hours per week. Some full-time

nurses work overtime, while others rarely do. Part-time nurses rarely work overtime.

       Amber Champagne-Wright testified that each new registered nurse undergoes

orientation specific to his or her departments. Each department orientation includes

instructions on meal periods and rest breaks. The charge nurse apprises each nurse to

account for unit specific circumstances that may alter her ability to take a lunch or rest

                                             23
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


break.

         Amber Champagne-Wright testified that the duties of registered nurses vary

between night and day shifts. Night nurses experience more free time. Because of this

time, night nurses must review a patient's entire chart and ensure the accuracy of the

chart. Registered nurse duties on weekend shifts echo the duties of a night shift nurse

because of more free time and less distraction from the administration and physicians.

According to Amber Champagne-Wright, Marietta Jones has refused a meal break.

         Sara Barron served as the director of inpatient services from 2003-2010. Barron

learned in the early 2000s of lawsuits by nurses in other hospitals over meal and rest

breaks. Therefore, Barron diligently worked to ensure nurses obtained needed breaks.

         According to Sara Barron, Judy Chavez refused to be relieved for lunch on several

occasions. Chavez's brother-in-law usually brought and ate lunch with her. Barron

claimed that Chavez made a significant number of personal calls during work hours.

Chavez also frequently socialized with other employees. Her intermittent personal time

would total at least ten minutes every four hours. Sara Barron also accused Marietta

Jones of socializing and engaging in personal activity throughout a shift. Jones' personal

time totaled ten minutes for every four hours worked.

         Debra Hill works as Lourdes Medical Center's payroll coordinator. She trains

new employees and new managers on the Kronos system. If an employee misses a break

or meal, the employee may report the miss to a supervisor, who will contact Hill. Hill

                                            24
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


will then adjust the payroll records.

         According to Debra Hill, plaintiff Judith Chavez, after filing suit, contacted her

supervisor about missing a break. The supervisor notified Hill, who added fifteen

minutes to Chavez's work time. Plaintiff Oralia Garcia contacted Hill many times when

she did not get paid correctly. Hill then reviewed Garcia's time and pay and entered any

needed corrections. Hill expected Garcia to notify Hill of any missed lunches or breaks.

She did not.

         According to Debra Hill, plaintiff Kathy Christenson frequently contacted her

about use of the Kronos system. Hill also expected Christenson to inform her of any

missed breaks. Christenson did not. Plaintiff Marrietta Jones contacted Hill when Jones

lost a Kronos password or had a question about pay. Jones never reported a missed

break.

                                        PROCEDURE

         In June 2012, the nurses filed a complaint for unlawful withholding of wages and

alleged that the hospital failed to provide nurses with rest periods and meal periods. In

the original complaint, the nurses sought monetary, declaratory, and injunctive relief, in

addition to class certification.

         Effective March 10, 2013, Lourdes adopted a new accounting system. The system

permits tracking of intermittent breaks, requires nurses to clock in and out for meal

periods, and allows nurses to track missed rest periods.

                                              25
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


       In April 2013, the nurses filed a motion for class action certification. They sought

a class of all registered nurses who worked at least one hourly shift at Lourdes Medical

Center at Pasco from June 25, 2009 through the then present to litigate common liability

questions related to the hospital's meal and break policies and practices. The nurses also

alternatively proposed subclasses of nurses by shift or department. In response, Lourdes

Medical Center filed affidavits by managers and supervisors that we quoted, in part,

above. Lourdes argued that operational differences within its departments would cause

difficulty in resolving damage questions.

       After the trial court entertained initial arguments regarding class certification, the

court astutely postponed a decision on the motion and offered the nurses an opportunity

to present summary judgment motions to clarify the legal theories controlling Lourdes

Medical Center's exposure to liability. The law encourages the trial court, for purposes

of judicial economy, to delay ruling on a motion for class certification until after hearing

dispositive motions. Sheehan v. Central Puget Sound Regional Transit Authority, 155

Wn.2d 790, 123 P.3d 88 (2005). At different times, the nurses then brought three

summary judgment motions respectively relating to (1) nonmeal rest periods, (2) tracking

time and paying for missed rest periods, and (3) the need for a second meal period during

a twelve-hour shift. The trial court denied the nurses' motions for partial summary

judgment. The court concluded issues of fact existed as to whether individual nurses

were afforded time to take a meal break and whether individual nurses were relieved of

                                             26
No. 33556-9-III
Chavez v. Our Lady ofLourdes Hosp.


work in order to take a break. The ruling noted that availability of a meal break could

depend on the shift worked by a nurse.

       In March 2015, the nurses amended their complaint. The amendment continues to

seek declaratory and injunctive relief. Nevertheless, the complaint notices Lourdes

Medical Center's March 2013 change in meals and breaks time keeping policies. The

nurses allege that "this lawsuit was a driving force in the policy change that allowed

nurses a way to track missed rest periods and that they have already obtained a

substantial, systemic victory on a class basis." CP at 1640. The amended complaint

sought a requested class period for workers laboring before March 10, 2013.

       Also in March 2015, the nurses renewed their motion for class certification for all

registered nurses who worked at least one hourly shift at Lourdes Medical Center from

June 25, 2009 through March 10, 2013, and, in the alternative, if necessary, to certify

subclasses of these same nurses by department or shift hours. The trial court denied class

certification. The court ruled that the nurses met the class certification requirements of

CR 23(a) but not CR 23(b). In so ruling, the trial court found that the number of nurses

was sufficiently large to render joinder impractical. The trial court also found that the

potential class members' claims included common liability issues and that the class

representatives shared common issues with the class. At the conclusion of the hearing,

the trial court commented:




                                             27
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


              I still am going to deny the request for class certification because, in
       my mind, the class issues do not predominate. There are certainly some
       important class issues that are there and that exist, but, when the rubber
       meets the road, what happens from shift to shift, from nurse to nurse, from
       nurse type to nurse type, from census to census and so on, and so on it goes,
       if we had a class the generalities of what happened at Lourdes or what
       happens at Lourdes, I believe, would consume and overrun the specifics.

              It does appear to me that virtually-well, I'll say all of the other
       requirements of CR 23 are met, but just not those-not those three, that
       way I've made a ruling on all of the subparts.

Report of Proceedings (RP) at 406-07. The order denying class action certification reads,

in part:

               5. The Court finds plaintiffs have not met the required showing that
       a mandatory class action would be maintainable under CR23(b)(l) because
       the primary objective of this lawsuit is monetary damages and plaintiffs
       have failed to show prejudice to absent class members would occur.
               6. The Court finds plaintiffs have not met the required showing that
       a mandatory class action would be maintainable under CR 23(b )(2) because
       the primary objective of this lawsuit is monetary damages and plaintiffs
       have failed to establish the necessity of declaratory or injunctive relief.
               7. The Court finds plaintiffs have not met the required showing that
       a class action would be maintainable under CR 23(b)(3). The Court finds
       that common class issues do not predominate over individual questions
       because issues regarding shift, nurse type, nurse roles and job duties,
       patient assignments and census, managers, and department cause the
       specifics for each class member to overrun any generalities. The Court also
       finds that a class action is not superior to alternatives such as joinder or
       individual lawsuits for fair and efficient adjudication of the claims. Finally,
       the Court also finds that the proposed class, or the proposed nine subclasses
       by department, would be unmanageable at trial.

CP at 1011-12. We accepted discretionary review of the order denying class

certification.



                                             28
No. 33556-9-III
Chavez v. Our Lady ofLourdes Hosp.


                                   LAW AND ANALYSIS

       The nurses contend the trial court erred in some of its summary judgment rulings.

We did not accept discretionary review for the purpose of reviewing summary judgment

rulings and will not directly address any such rulings. We note that the law instructs

courts not to decide the merits of claims when ruling on class certification requests.

Washington Education Association v. Shelton School District No. 309, 93 Wn.2d 783,

790, 613 P.2d 769 (1980).

       In challenging the trial court's order denying class certification, the nurses argue

on appeal that the trial court failed to liberally construe CR 23 in favor of certification,

the trial court failed to enter sufficient factual findings to justify denial of certification,

the trial court implicitly and erroneously found facts against them without conducting an

evidentiary hearing, the trial court erroneously required them to prove their case as a

matter of law, and the trial court erroneously required them to prove damages before

certification or discovery. We will not discretely address each argument, although we

reject each argument. We will address some of the arguments during the flow of our

analysis.

       Lourdes Medical Center responds that the trial court acted within its discretion

because the court conducted a rigorous analysis of the class certification requirements.

The hospital also argues that individual issues predominate with each of the nurses'

theories of liability and that common issues do not control as required for certification

                                               29
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


under CR 23(b )(3 ). Additionally, the hospital asserts that the trial court correctly

determined the class failed to meet CR 23(b)(3) because the class was unmanageable.

       The plaintiff nurses and Lourdes Medical Center forward conflicting facts,

including facts important to determining whether to grant class certification. The parties

disagree as to the exercise of breaks by the plaintiff nurses, the extent to which Lourdes

Medical Center trained workers about meal and rest breaks, the difference in any training

and polices from department to department, whether the work atmosphere was conducive

or hostile to exercising breaks, the extent of differences with regard to the exercise of

breaks from department to department, from shift to shift, and from supervisor to

supervisor, the availability of coverage for breaks from department to department and

shift to shift, the various reactions of managers to the reporting of missed breaks and

meals, the extent to which twelve-hour workers received a second meal, the magnitude of

intermittent breaks, whether one or more nurses waived breaks, whether Lourdes paid

nurses for missed breaks and meals, and to what extent, if any, does the hospital owe the

plaintiff nurses money.

       We determine that we must review the facts in a light most favorable to Lourdes

Medical Center. We find no case that explicitly directs us to view the facts in such a

gloss for purposes of reviewing a class action ruling, but logic and other tangential rules

compel such a conclusion. A reviewing court must defer to the trial court's findings of

fact entered when certifying or denying certification. Duncan v. Michigan, 300 Mich.

                                              30
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


App. 176, 832 N.W.2d 761, 766 (2013). Although our trial court did not expressly

resolve conflicts in the evidence, the court must have done so when issuing its decision.

Plaintiff nurses complain that the trial court resolved conflicts in Lourdes' favor. This

resolution of the conflict would have included some determination of the credibility of

the respective evidence presented by the parties. We must assume the hospital's

testimony to be accurate or else we do not bestow full deference to the court's ruling

favoring the hospital. After a bench trial, we view the evidence in the light most

favorable to the winning party. City of Walla Walla v. $401,333.44, 164 Wn. App. 236,

256,262 P.3d 1239 (2011). Even when the trial court issues a ruling based on affidavits,

we view the evidence in favor of the prevailing party if the trial court weighed credibility

ofdeclarants. In re Marriage of Rideout, 150 Wn.2d 337,350, 77 P.3d 1174 (2003).

       The nurses contend that the trial court should have conducted an evidentiary

hearing. In support of this argument, the nurses cite only Oda v. State, 111 Wn. App. 79,

93 n.4, 44 P.3d 8 (2002). The passage in Oda contrarily rejects the nurses' contention.

The passage reads that many courts encourage an evidentiary hearing, but no court has

held that an evidentiary hearing is required on the question of class certification. Oda v.

State, 111 Wn. App. at 93 n.4.

       The class action is an exception to the usual rule that litigation is conducted by and

on behalf of the individual named parties only. Comcast Corp. v Behrend, 569 U.S._,

133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515 (2013). The purposes of class actions include

                                             31
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


the saving of members of the class the cost and trouble of filing individual suits and the

freeing of the defendant from the harassment of identical future litigation. Brown v.

Brown, 6 Wn. App. 249, 256-57, 492 P.2d 581 (1971). Despite the law seeking to, in

part, benefit defendants, defendants, more often than plaintiffs, oppose class certification.

       In Washington State, CR 23 governs a determination of whether to certify a class

action. Nevertheless, because CR 23 mirrors its federal counterpart, cases interpreting

the analogous federal provision are highly persuasive. Schnall v. AT&T Wireless

Services, Inc., 171 Wn.2d 260, 271, 259 P.3d 129 (2011). Because class actions are a

specialized proceeding available in limited circumstances, the trial court must conduct a

"rigorous analysis" of the CR 23 requirements to determine whether a class action is

appropriate in a particular case. Oda v. State, 111 Wn. App. at 93 (2002). Plaintiffs

seeking class certification bear the burden of demonstrating that they meet all the

requirements of CR 23. Weston v. Emerald City Pizza, LLC, 137 Wn. App. 164, 168, 151

P.3d 1090 (2007). Class actions are specialized types of suits, and, as a general rule,

must be brought and maintained in strict conformity with the requirements of CR 23.

Lacey Nursing Center, Inc. v. Department ofRevenue, 128 Wn.2d 40, 47,905 P.2d 338

(1995); DeFunis v. Odegaard, 84 Wn.2d 617,622,529 P.2d 438 (1974).

       This court reviews a trial court's decision to certify a class for abuse of discretion.

Miller v. Farmer Brothers Co., 115 Wn. App. 815, 820, 64 P.3d 49 (2003); Oda v. State,

111 Wn. App. at 90. When this court reviews a trial court's decision to deny class
                                                                                                 I
                                              32
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


certification, the decision is afforded a substantial amount of deference. Schnall v. AT&T

Wireless Services, Inc., 171 Wn.2d at 266. A court abuses its discretion if its decision is

based on untenable grounds or is manifestly unreasonable or arbitrary. Oda v. State, 111

Wn. App. at 91. We generally review decisions certifying a class liberally and err in

favor of certifying a class, since the class is always subject to later modification or

decertification by the trial court. Miller v. Farmer Brothers Co., 115 Wn. App. at 820;

Brown v. Brown, 6 Wn. App. at 256 (1971 ). An appellate court resolves close cases in

favor of allowing or maintaining the class. Nelson v. Appleway Chevrolet, Inc., 160

Wn.2d 173, 188-89, 157 P.3d 847 (2007); Smith v. Behr Process Corp., 113 Wn. App.

306,319, 54 P.3d 665 (2002).

       We wonder if two of these principles conflict. If we are to defer to the trial court's

decision, we question whether we should resolve close cases by approving a class action

when the trial court denied certification. The gist of affording a trial court discretion is to

affirm the trial court in close calls.

       We will reverse a class certification decision if the trial court made its decision

without appropriate consideration and without articulated reference to the criteria of CR

23. Washington Education Association v. Shelton School District No. 309, 93 Wn.2d at

793. We will not disturb a trial court's certification decision if the record indicates the

court properly considered all CR 23 criteria. Nelson v. Appleway Chevrolet, Inc., 160




                                              33
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


Wn.2d at 188. Our record shows that the trial court considered all criteria. In fact, the

trial court ruled in favor of the plaintiff nurses in all but one CR 23 requirement.

       CR 23 divides itself into two sections: CR 23(a), which lists four prerequisites for

all class actions; and CR 23(b ), which lists three alternative requirements, only one of

which need apply. CR 23(a) declares:

               Prerequisites to a Class Action. One or more members of a class
       may sue or be sued as representative parties on behalf of all only if ( 1) the
       class is so numerous that joinder of all members is impracticable, (2) there
       are questions of law or fact common to the class, (3) the claims or defenses
       of the representative parties are typical of the claims or defenses of the
       class, and (4) the representative parties will fairly and adequately protect
       the interests of the class.

       Under CR 23(a), the plaintiffs must satisfy the four prerequisites of

(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of the representatives.

Admasu v. Port of Seattle, 185 Wn. App. 23, 30-31, 340 P.3d 873 (2014), review denied,

183 Wn.2d 1009, 352 P.3d 187 (2015). We do not address whether the nurses fulfilled

all requirements of CR 23(a). The trial court found that the nurses' suit fulfilled all four

requirements of the subsection, and Lourdes Medical Center does not challenge this

ruling on appeal.

       In addition to CR 23(a), the plaintiff must meet the requirements of one of the

subparagraphs in subsection CR 23(b ). This subsection reads:

              Class Actions Maintainable. An action may be maintained as a
       class action if the prerequisites of section (a) are satisfied, and in addition:


                                              34
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


               ( 1) The prosecution of separate actions by or against individual
       members of the class would create a risk of
               (A) inconsistent or varying adjudications with respect to individual
       members of the class which would establish incompatible standards of
       conduct for the party opposing the class, or
               (B) adjudications with respect to individual members of the class
       which would as a practical matter be dispositive of the interests of the other
       members not parties to the adjudications or substantially impair or impede
       their ability to protect their interest; or
               (2) The party opposing the class has acted or refused to act on
       grounds generally applicable to the class, thereby making appropriate final
       injunctive relief or corresponding declaratory relief with respect to the class
       as a whole; or
               (3) The court finds that the questions of law or fact common to the
       members of the class predominate over any questions affecting only
       individual members, and that a class action is superior to other available
       methods for the fair and efficient adjudication of the controversy. The
       matters pertinent to the findings include: (A) the interest of members of the
       class in individually controlling the prosecution or defense of separate
       actions; (B) the extent and nature of any litigation concerning the
       controversy already commenced by or against members of the class; (C)
       the desirability or undesirability of concentrating the litigation of the claims
       in the particular forum; (D) the difficulties likely to be encountered in the
       management of a class action.

       Although the nurses argue that class certification was appropriate under any of the

three subsections of CR 23(b), certification under CR 23(b)(l) and (2) applies only when

the primary claim is for injunctive or declaratory relief. Under CR 23(b )(1) and (2),

monetary relief must be incidental to the declaratory relief. Nelson v. Appleway

Chevrolet, Inc., 160 Wn.2d at 189 (2007).

       Our trial court ruled that plaintiff nurses did not meet CR 23(b)(l) because

plaintiffs' primary recovery is monetary damages. Although the nurses originally



                                             35
No. 33556-9-111
Chavez v. Our Lady of Lourdes Hosp.


requested injunctive relief, the focus of their claims has been payment for unpaid meal

and rest periods. After the nurses filed suit, Lourdes Medical Center ended the practice

of utilizing the Kronos system and no longer automatically deducted time for meal

breaks. Given this substantial, systemic victory, the nurses need no declaratory or

injunctive relief. The nurses may still seek a declaratory ruling with regard to what

constitutes a break during acute care when the hospital assigns a nurse to a particular

patient. Still the trial court did not abuse its discretion by ruling the nurses' action

primarily seeks monetary relief and does not meet the requirements of CR 23(b )(1) or (2).

       On appeal, the parties aptly focus their briefing and analysis on whether the trial

court correctly denied class certification under CR 23(b)(3). To repeat, CR 23(b)(3)

allows certification when:

              The court finds that the questions of law or fact common to the
       members of the class predominate over any questions affecting only
       individual members, and that a class action is superior to other available
       methods for the fair and efficient adjudication of the controversy.

       To restate the rule, class certification is appropriate under CR 23(b )(3) if common

questions of fact or law predominate over individual ones and a class action is superior to

other available methods of adjudication. Sitton v. State Farm Mutual Automobile

Insurance Co., 116 Wn. App. 245, 253, 63 P.3d 198 (2003). Plaintiffs seeking class

certification under subsection (3) must show both predominance and superiority. Admasu

v. Port ofSeattle, 185 Wn. App. at 31 (2014 ).


                                              36
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


       Our trial court denied certification on a lack of both predominance and superiority.

Since both must prevail, we address only superiority. The trial court determined that

certification of the class would be unmanageable because of the confusion that could

arise from trying to manage nine subclasses. The trial court believed that nine subclasses

would be essential because of the differences in the respective hospital departments.

       Even if individualized issues predominate, CR 23 (b )(3) also requires that a class

action be superior to other available methods for the fair and efficient adjudication of the

controversy. Schnall v. AT&T Wireless Services, Inc., 171 Wn.2d at 275 (2011). Under

the rule, a class action must be superior, not just as good as, other available methods.

Schnall v. AT&T Wireless Services, Inc., 171 Wn.2d at 275. The superiority requirement

focuses on a comparison of available alternatives. Schnall v. AT& T Wireless Services,

Inc., 171 Wn.2d at 275; Sitton v. State Farm Mutual Automobile Insurance Co., 116 Wn.

App. at 256. In traditional statewide class actions, these alternatives include joinder,

intervention, or consolidation. Schnall v. AT&T Wireless Services, Inc., 171 Wn.2d at

275.

       Manageability is only one of the elements that goes into the balance to determine

the superiority of a class action in a particular case. Other factors must also be

considered, as must the purposes of CR 23, including: conserving time, effort and

expense; providing a forum for small claimants; and deterring illegal activities. Sitton v.

State Farm Mutual Automobile Insurance Co., 116 Wn. App. at 257. The trial court is

                                             37


                                                                                               I
No. 33556-9-111
Chavez v. Our Lady of Lourdes Hosp.


particularly in the best position to address case management concerns. Sitton v. State

Farm Mutual Automobile Insurance Co., 116 Wn. App. at 256-57.

       At oral argument, the nurses' counsel commented that individual nurse claims

could vary between $2,000 and $15,000. Class actions seek to render claims of small

amounts easier to litigate. Nevertheless, we note that, as an alternative to a costly

superior court class action suit, nurses seeking $5,000 or less could litigate in the

inexpensive small claims court. RCW 12.40.010. We further observe that the trial court

best knows the ability of the Franklin County Superior Court's ability to manage a class

action process and trial.

       We note common questions with regard to liability of Lourdes Medical Center for

at least many of the nurses. The common issues include what constitutes a rest period in

the context of nursing? Do intermittent rest periods comply with the law's demand for a

fifteen-minute rest period each four hours of work? To what extent must the employer

monitor whether employees receive breaks? Must the hospital have provided a second

meal during a twelve-hour shift, and, if so, could the nurse waive the meal? We note,

however, that Lourdes Medical Center has not conceded any illegal activities.

       Plaintiff nurses may argue a court should certify a class action solely on the

ground that the suit contains common issues oflaw. Nevertheless, the trial court must

weigh the commonality with other factors before determining predominance. Also, we

base our decision on the superiority prong not the predominance prong.

                                             38
No. 33556-9-III
Chavez v. Our Lady ofLourdes Hosp.


       The plaintiff nurses rely on Tyson Foods, Inc. v. Bouaphakeo, _ U.S. _, 136 S.

Ct. 1036, 194 L. Ed. 2d 124 (2016), wherein the nation's high Court affirmed the trial

court's certification of an employees' class action suit against an employer because the

employees failed to garner statutorily mandated overtime pay for time spent donning and

doffing protective equipment. A major distinction between Tyson Foods and this appeal,

of course, is that the Tyson Foods' trial court exercised its discretion in granting class

status. Another distinction concerns the variable among workers' activities, on which the

employer sought to avoid certification. Tyson Foods argued that differences in the

composition of gear worn by various employees caused a variation in the amount of time

to don and doff the gear. The variables concerning Lourdes Medical Center nurses'

ability to exercise breaks are greater. Each nurse's story will vary such that her story can

fill one trial. Retelling those scores of stories in one case could be unmanageable.

       In Creely v. HCR ManorCare, Inc., 920 F. Supp. 2d 846 (N.D. Ohio 2013), nurses

and nursing assistants brought action against a provider of medical and rehabilitative care

and alleged violations of the federal Fair Labor Standards Act, 209 U.S.C. §§ 201-219.

The employer also utilized the Kronos time system, with an automatic deduct function,

for work hours accounting. Employees complained that they often did not break for

lunch and the employer did not compensate them for the deducted time. The case

involves a unique statute for class actions under the Fair Labor Standards Act.

Nevertheless, the substantive rules echo the requirements of Fed. R. Civ. P. 23 and any

                                             39
No. 33556-9-III
Chavez v. Our Lady ofLourdes Hosp.


difference in the rules benefit the employees. The trial court denied class certification.

Although the facts involved workers employed at numerous facilities, the court also

noted the ability to exercise uninterrupted breaks depended on the nurse's unit, shift,

manager, patient population, job duties, and individual habits. The court recognized the

desirability of the nurses pooling resources to seek vindication of employment rights.

Nevertheless, the court considered a class action unmanageable because each nurse's

right to compensation hinged on his or her individual experience.

       We note that at least one decision, Perez v. Safety-Kleen Systems Inc., 253 F.R.D.

508 (2008), likely disagrees with the court's ruling in Creely v. HCR ManorCare Inc.

Differing decisions, however, bolster the need to afford the trial court discretion in its

ruling. The trial court's role remains to assess factors relevant to a decision and weigh

those factors in accordance with the idiosyncrasies of the circumstances.

       Our trial court's ruling echoed the concerns expressed by the federal court in

Creely v. HCR ManorCare Inc. At least under the evidence presented by Lourdes

Medical Center, the duties and experiences performed by one nurse, even as to nurses

working in one hospital department, cannot be generalized. Thus, the trial court did not

abuse its discretion in denying class certification.

                                       CONCLUSION

       We affirm the trial court's order denying class certification. We remand the case

to the superior court for further proceedings.

                                              40
No. 33556-9-III
Chavez v. Our Lady of Lourdes Hosp.


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                            Fearing, C

WE CONCUR:




  ?7dJ,bw~ /)=
Siddoway, J.




                                           41
