Joseph Mcclain, V. State Of Washington And Washington State Patrol

• Court: Court of Appeals of Washington
• Decided: April 22, 2025
• Docket: 59818-3
• Status: Published

Opinion

Filed Washington State Court of Appeals Division Two

April 22, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II JOSEPH MCCLAIN, LINDA ALLEN, and No. 59818-3-II JACOB PAYNE, individually and on behalf of all others similarly situated,

Appellants,

v. PUBLISHED OPINION STATE OF WASHINGTON, and WASHINGTON STATE PATROL, governmental entities,

Respondents.

PRICE, J. — In this case, we must decide whether troopers from the Washington State

Patrol (WSP) are entitled to sue directly in superior court for alleged violations of Washington’s

Minimum Wage Act (MWA)1 related to commute pay when the pay appears to comply with the

terms of a collective bargaining agreement (CBA), or whether the troopers must first exhaust

grievance and arbitration procedures required by a CBA.

Some troopers are personally assigned patrol vehicles. These troopers may park the

vehicles at their homes and use them to commute to their assigned patrol areas. The WSP

generally does not pay troopers for their commute time unless they encounter an accident,

emergency, or individual committing a traffic violation while they are driving to their assigned

patrol area, but in those cases, they are required to stop. The WSP has a number of other

1 Ch. 49.46 RCW. No. 59818-3-II

limitations on the troopers’ use of the assigned vehicles. For example, even when they are not

being paid for their commute time, troopers are only authorized to use their personally assigned

vehicles for official WSP use—they cannot use their vehicles to transport unauthorized

passengers or to drive to and from personal activities. These limitations and commute pay policies

are apparently consistent with the terms of the CBAs negotiated between the WSP and the

troopers’ union, the Washington State Patrol Troopers Association (WSPTA).2

In 2022, Joseph McClain, Linda Allen, and Jacob Payne (collectively, McClain) filed an

action in superior court against the WSP and the State of Washington (collectively, the State)

alleging that these commute pay policies violate the MWA and the “Washington Rebate Act”

(WRA).3 McClain argued that given the level of control the WSP had over troopers commuting

in personally assigned vehicles, the troopers were entitled to payment for the entire time spent

commuting and that the State was willfully depriving them of wages that they were legally owed.

According to McClain, these statutory violations also entitled the troopers to compensation based

on the tort of unjust enrichment.4 The State responded that despite McClain’s contentions, his

2 Because the time period of McClain’s claims straddles two of these CBAs, we refer to the CBAs plurally. 3 Ch. 49.52 RCW. 4 McClain conceded in oral argument before this court that this tort claim was only a mechanism for relief for violations of the MWA and WRA and that he had no independent tort claim outside of these alleged statutory violations. Wash. Ct. of Appeals oral argument, McClain v. State, No. 59818-3-II (Jan. 27, 2025), at 5 min., through 5 min., 38 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-2-court-of-appeals- 2025011587/?eventID=2025011587.

2 No. 59818-3-II

claims were contractual, not statutory in nature and, thus, McClain was required to exhaust

grievance and arbitration procedures under the CBAs.

The superior court agreed with the State and dismissed all of McClain’s claims with

prejudice.

Whether the commute pay policies actually violate the MWA (or the WRA) is not our

question. In this appeal, we are tasked solely with resolving whether McClain is barred from

directly bringing his statutory claims in superior court without exhausting the procedures in the

CBAs.

We hold that McClain may bring his MWA claim in superior court without exhausting

the CBA procedures. The MWA sets a floor of statutory guarantees for workers, and parties

cannot negotiate relinquishment of those rights. A claim premised on an allegation of a violation

of the floor of minimum wage rights under the MWA is independent of the terms of the CBAs,

and therefore, the CBAs’ grievance and arbitration procedures cannot limit McClain’s ability to

bring this claim in superior court. But as discussed below, we make no determination as to

whether the same result applies to McClain’s WRA claim. Thus, we reverse the superior court,

but our decision is without prejudice to the State should it choose to again raise exhaustion with

the superior court for the WRA claim.

FACTS

I. BACKGROUND ON WSP POLICIES AND GRIEVANCE PROCEDURES

WSP troopers and the State engage in collective bargaining to negotiate “ ‘wages, wage-

related matters, and nonwage matters.’ ” Clerk’s Papers (CP) at 86 (quoting RCW 41.56.473).

Negotiated terms are finalized into a CBA that is valid for a period of two years. According to

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the CBAs for the periods of 2019-2021 and 2021-2023, the WSP recognizes the WSPTA as “the

exclusive bargaining representative” that negotiates on behalf of the troopers “for the purpose of

establishing terms and conditions of employment in accordance with the provisions of RCW

41.56.” CP at 94, 124. Among these negotiated terms are policies regarding the assignment of

vehicles to troopers and when troopers are “on-duty” and entitled to compensation. CP at 98,

128. Based on the terms of the CBAs, the WSP creates and maintains internal policies and a

regulation manual that provide additional guidance and procedures.

A. VEHICLE AND COMMUTING POLICY

According to the CBAs, troopers who commute from home to their assigned patrol area

in an “assigned take home vehicle” are considered “off-duty” during their normal commute and

do not receive compensation for their time. However, in the event that they come upon a disabled

vehicle, accident, criminal traffic violation, or an emergency during their commute, troopers must

respond and will be switched into “on-duty” status and will be given overtime compensation until

assistance arrives to relieve the commuting trooper.

The Washington State Patrol Regulation Manual expands upon the topics of the CBAs

and creates policies and procedures that explain how the CBA terms function in practice. Chapter

17 of the manual authorizes some, but not all, WSP troopers to commute in personally assigned

vehicles. Among other requirements, in order for a trooper to be authorized to commute in a state

vehicle it must be “advantageous or economical to the state.” CP at 81. The manual also expands

on the terms of the CBAs regarding the use of “personally assigned vehicles.” The manual

explains that regardless of whether a trooper is off-duty while commuting, they are still otherwise

subject to the normal restrictions regarding state vehicle use during the commute. The vehicles

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must be used “only for official business and in a manner consistent with applicable state travel

regulations;” they cannot be used for any personal reasons. CP at 82. Troopers cannot use their

assigned vehicle to transport family members, friends, or any unauthorized passengers for

personal activities.

B. GRIEVANCE PROCEDURES

The CBAs also outline exclusive grievance procedures that troopers must use “for the

resolution of disputes regarding the specific meaning, interpretation, or application of the express

provisions of [the CBAs].” CP at 107, 138. The CBAs set out a three-step process to resolve

grievances. First, the affected trooper and/or the WSPTA submits a written grievance detailing

“the facts of the grievance, the date on which the incident occurred, the Article and Section of the

Agreement alleged to be violated, and the remedy sought” to the trooper’s immediate supervisor.

CP at 108, 139. The supervisor forwards the grievance to the division or district commander who

decides and responds to the grievance. If the grievance is not resolved by the first step, then the

trooper or the WSPTA may submit their grievance to the chief who will set the matter for a

hearing with the WSP Labor and Policy Advisor, the WSPTA, and the trooper. After the hearing,

the chief will issue a decision resolving the matter.

If the first or second steps are insufficient to resolve the grievance, then the WSPTA can

refer the grievance to arbitration. The arbitrator, however, has limited authority; their decision

can only be based on their interpretation of the meaning or application of the CBA, and the facts

of the grievance. “A decision rendered consistent with the terms of this Agreement shall be final;

however, a decision which exceeds the authority granted herein may be appealed to a court of

proper jurisdiction.” CP at 109, 140.

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II. TROOPERS’ GRIEVANCE, COMPLAINT AND FURTHER PROCEEDINGS

In November 2020, a group of state troopers and their union representative, filed a

grievance with the troopers’ union, the WSPTA. The grievance expressed the group’s concerns

“about the lack of compensation for previous hours worked” while commuting in their state

vehicles—asserting that this violated the law. CP at 619, 622. The grievance alleged that the

troopers should receive commute pay because the WSP exercised too much control over troopers

when they commuted in state vehicles.

The WSPTA declined to move forward with the troopers’ grievance because it determined

that the commute pay policies were consistent with the terms of the CBA negotiated by the union.

The WSPTA representatives said that if the troopers wanted to continue to pursue their grievance,

they would have to hire their own separate counsel. According to one of the troopers, after this

meeting, “[they] never heard from WSPTA about [their] grievance again.” CP at 625.

Almost two years later, in September 2022, WSP troopers Joseph McClain, Linda Allen,

and Jacob Payne (collectively, McClain) filed a complaint directly in superior court against the

State. Like the earlier grievance to the union, the troopers alleged that they, and other similarly

situated WSP troopers, were entitled to unpaid wages for their commute time because of the level

of control that the WSP exercised over them. Citing to Stevens v. Brink’s Home Security Inc., the

complaint alleged that this control was sufficient for the troopers to be entitled to compensation

6 No. 59818-3-II

for their “hours worked” under the MWA. 162 Wn.2d 42, 169 P.3d 473 (2007).5 Thus, by not

paying the troopers for all commute time, the complaint alleged that the State violated the MWA

and the WRA. The complaint made no mention of the CBAs.

In February 2023, the State filed a motion for summary judgment. The State argued that

McClain’s claims must be dismissed because he failed to exhaust the mandatory bargaining

grievance and arbitration procedures required under the CBAs. The State contended that the

Public Employee Collective Bargaining Act (PECBA)6 required McClain to address his claims

through the grievance procedures outlined in the CBAs, not through a civil lawsuit in superior

court. PECBA, according to the State, commands that “the CBA provisions prevail and supersede

any claims”—including claims brought under the MWA. CP at 44 (boldface omitted). Finally,

the State argued that even if the superior court did not dismiss the action on these grounds,

McClain lacked standing. The State contended that the CBAs, PECBA, and Public Employment

Relations Commission (PERC) all designate the WSPTA as “the exclusive representative of WSP

troopers,” therefore, “individual troopers do not have any right or standing to represent the

interests of other WSP troopers.” CP at 52.

5 In Brink’s Home Security, our Supreme Court concluded that the MWA requires all workers to be paid for “hours worked” but the statute did not define the term. 162 Wn.2d at 47. Without a definition in the MWA itself, our Supreme Court held that, in the context of whether drive time is compensable, a regulation that applies to the “Industrial Welfare Act,” (Ch. 49.12 RCW), WAC 296-126-002(8), would be used to determine “hours worked” under the MWA. Id. The regulation provides, “ ‘[h]ours worked’ shall be considered to mean all hours during which the employee is authorized or required by the employer to be on duty on the employer’s premises or at a prescribed work place.” WAC 296-126-002(8). 6 RCW 41.56.010-900; RCW 41.06.150.

7 No. 59818-3-II

The superior court granted the State’s motion and dismissed all of McClain’s claims with

McClain appeals.

ANALYSIS

I. STANDARD OF REVIEW

We review motions for summary judgment de novo. M.E. v. City of Tacoma, 15 Wn.

App. 2d 21, 31, 471 P.3d 950 (2020), review denied, 196 Wn.2d 1035 (2021). Summary judgment

may be granted if there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. CR 56(c); Meyers v. Ferndale Sch. Dist., 197 Wn.2d 281, 287, 481

P.3d 1084 (2021).

II. EXHAUSTION OF REMEDIES UNDER THE CBAS

McClain argues that the superior court erred in dismissing his claims on summary

judgment because exhaustion of remedies under the CBAs is not required before bringing an

action under the MWA. He asserts that his MWA claim “sound[s] in statute” and is independent

from the CBAs and, therefore, he “need not first exhaust remedies contained in a collective

bargaining agreement.” Appellant’s Opening Br. at 14-15. We agree.7

7 McClain’s briefing focuses almost entirely on his MWA claim and fails to address any potential difference between this claim and his WRA claim, or his tort claim for unjust enrichment. Similarly, the State’s briefing does not address any distinctions among the different claims (likely because their position is arguably equally applicable to all three claims). Because the parties limit their briefing solely to McClain’s MWA claim, our opinion is similarly limited. Below, however, we address the consequences of this limitation.

8 No. 59818-3-II

A. APPLICABILITY OF ANALOGOUS CASELAW UNDER § 301 OF THE LMRA

McClain appears to acknowledge that there is no Washington case law directly on point

to support his assertion that he can bring an MWA claim independent of the CBAs. But he relies

heavily on what he contends are analogous cases involving the federal Labor Management

Relations Act of 1947 (LMRA).8 The State rejects any applicability of these cases construing the

LMRA, arguing that critical differences in the federal context mean these cases should not guide

our analysis.

Considering the scarcity of on-point authorities to assist the resolution of this dispute,

whether we utilize these LMRA cases by analogy may be dispositive to our conclusions.

However, before plunging into an analysis of them, we first pause to evaluate their applicability.

The LMRA protects the rights of employees to organize and bargain collectively. See

29 U.S.C. § 141. It creates dispute resolution procedures for unions and employers and gives a

CBA “ ‘[s]tatutory recognition . . . as a valid, binding, and enforceable contract.’ ” Textile

Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 454, 77 S. Ct. 912, 1 L. Ed. 2d

972 (1957) (quoting S. REP. NO. 80-105, at 17 (1947)). Because the overarching purpose of the

LMRA in creating these procedures is to prevent “industrial strife” from impeding the free flow

of commerce, its provisions only apply to “industry affecting [interstate] commerce,” not state

employees. 29 U.S.C. § 141; 29 U.S.C. § 185.

Section 301 of the LMRA specifically addresses CBA enforcement. It requires disputes

regarding the enforcement of a CBA to be resolved through federal common law in order to

8 29 U.S.C. §§ 141-262.

9 No. 59818-3-II

“ensure uniform interpretation of collective-bargaining agreements” and “promote the peaceable,

consistent resolution of labor-management disputes.” Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 404, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988). While states have concurrent

jurisdiction and may hear § 301 claims, “states cannot use local rules to resolve breach of CBA

disputes.” Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120, 126, 839 P.2d

314 (1992). Therefore, when resolving CBA disputes under § 301, courts will generally require

that dispute resolution procedures outlined in the CBAs are followed at the expense of any

separate state law claim—resulting in the state law claims being “preempted.” See id. at 127.

But § 301 preemption of state law claims is not absolute. The Supreme Court has warned

that employers cannot simply use bargaining to “exempt themselves from whatever state labor

standards they disfavor[].” See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212, 105 S. Ct.

1904, 85 L. Ed. 2d 206 (1985). “Clearly, § 301 does not grant the parties to a collective-

bargaining agreement the ability to contract for what is illegal under state law.” Id. Thus, when

considering a § 301 preemption dispute, courts must balance the general preference for arbitration

under a CBA with protecting an employee’s basic rights under state law. See id.

To inform this exercise, the Supreme Court has outlined the following test—before state

claims will be preempted under § 301 (meaning the terms of a particular CBA will control), the

state law claims must be “ ‘inextricably intertwined with consideration of the terms of the labor

contract.’ ” Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 863, 93 P.3d 108 (2004)

(emphasis added) (quoting Allis-Chalmers Corp., 471 U.S. at 213). Thus, “[o]nly those claims

founded directly on rights created by a collective bargaining agreement and those substantially

dependent on analysis of a collective bargaining agreement” must be resolved via the CBA’s

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remedies. United Food & Commercial Workers Union Loc. 1001 v. Mut. Benefit Life Ins. Co.,

84 Wn. App. 47, 51, 925 P.2d 212 (1991) (UFCW), abrogated on other grounds by Seattle Prof’l.

Eng’g Emps. Ass’n v. Boeing Co., 139 Wn.2d 824, 830, 991 P.2d 1126 (2000), review denied,

133 Wn.2d 1021 (1997). For example, in UFCW, the court held that an MWA claim was

independent because the court could resolve the claim by looking at employee pay stubs and the

statute—consulting the CBAs was not required. Id. at 52-53. Claims that are independent of a

CBA, then, are not preempted under § 301. See id. at 51-53.

State and federal courts construing this test under § 301 have struggled to determine what

it means for a state law claim to be “ ‘inextricably intertwined’ ” or “ ‘dependent upon’ ” the

terms of a CBA. See Commodore, 120 Wn.2d at 128, 133 (quoting Lingle, 486 U.S. at 402,

412-13). To resolve the troublesome ambiguity of these terms, our Supreme Court has endorsed

the “Marcus model” to guide courts in analyzing whether a state law claim is independent of a

particular CBA. Id. at 132. The Marcus model defines an independent claim as one “that an

employee can bring without any employment contract.” Stephanie R. Marcus, The Need for A

New Approach to Federal Preemption of Union Members’ State Law Claims, Note, 99 Yale L.J.

209, 210 n.13 (1989). “[I]f no cause of action would exist without the CBA,” then the claim is

not independent. Id.

The Marcus model distinguishes between nonnegotiable and negotiable independent

rights. Commodore, 120 Wn.2d at 130. “[N]onnegotiable state law rights—those that cannot be

waived in contract—[are] independent of [CBAs] by definition: They cannot be altered by CBA

negotiations.” Id. at 131. Negotiable rights on the other hand are only independent if they “do[]

11 No. 59818-3-II

not arise from the CBA and only the employer’s defense mandates interpreting the CBA.” Id. at

130; see also Marcus, supra, at 210 n.13.

Washington courts have consistently held over numerous decisions construing § 301 that

MWA claims are based on nonnegotiable rights. See, e.g., Hisle, 151 Wn.2d at 864 (“The right

to overtime under the MWA is a nonnegotiable state statutory right.”); Schneider v. Snyder’s

Foods, Inc., 95 Wn. App. 399, 402, 976 P.2d 134 (1999) (holding that the rights provided by the

MWA may not be waived by a CBA because CBAs may only establish wages “in excess of the

statutory minimums”) (citing RCW 49.46.110), review denied, 116 Wn. App. 706 (2003); Ervin

v. Columbia Distrib., Inc., 84 Wn. App. 882, 891, 930 P.2d 947 (1997) (holding that rights under

the MWA cannot be waived through collective bargaining); UFCW, 84 Wn. App. at 52

(explaining that wage and hour rights under the MWA are nonnegotiable because “the Legislature

stated that parties, bargaining collectively, may establish wages or other work conditions only ‘in

excess of the applicable minimum’ set forth in [the MWA]”) (quoting RCW 49.26.110). It is well

established that “ ‘[t]he general preference for arbitration is outweighed by the statutory

requirements of the Minimum Wage Act and the strong public policy . . . against depriving union

employees statutory rights that undeniably would be available to nonunion employees.’ ” Hisle,

151 Wn.2d at 864 (quoting Ervin, 84 Wn. App. at 891) (second alteration in original). Thus,

based on the Marcus model, MWA claims are independent by definition in § 301 cases.

McClain argues that the context of § 301 preemption is analogous to this case. McClain

suggests that the balancing that these courts undertake (under § 301) between the federal

preference for arbitration and CBAs with an employee’s separate state law rights is very similar

to the question posed here— “whether employees are required to exhaust contractual remedies

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under a CBA before asserting [MWA] claims.” Appellant’s Opening Br. at 28, n.6. According

to McClain, these cases provide an analogous context that, if used, clearly supports his position

that his MWA claim should be separate from the CBAs.

The State responds that cases construing § 301 preemption have no application to this

case. The State argues that in these § 301 cases, state claims were favored over the federal

preference for CBA arbitration because of Washington’s disdain of federal infringement of state

police powers. According to the State, this case presents no similar tension between federal and

state power. The State further argues that the § 301 context is inapplicable because those cases

do not involve public employers, uniformed state troopers, or the specific provisions of PECBA

(discussed more fully below).

We agree with the State that the § 301 cases do not represent a perfect analogy. McClain’s

claims clearly do not involve issues of federal preemption and the conflict between overlapping

federal and state authorities. And there are important factual differences between public unions

involving law enforcement and National Labor Relations Board bargaining involving private

companies.

Nevertheless, we are persuaded that the context is similar enough, especially given the

absence of directly on-point case law, to view these § 301 cases as being relevant to our analysis

of this dispute. Washington courts construing § 301 principles have grappled, in at least a similar

context, with the conflict between bargained-for rights guaranteed in a CBA and non-CBA rights

guaranteed by state law. See, e.g., Commodore, 120 Wn.2d at 125-26 (addressing conflict

between a CBA which did not include a right to be protected from racial discrimination and

protections guaranteed by state tort law); Schneider, 95 Wn. App. at 403 (addressing conflict

13 No. 59818-3-II

between CBA terms that classified route drivers as ineligible for overtime pay and rights

established under the MWA); UFCW, 84 Wn. App. at 52 (addressing conflict between CBA terms

that said that employees could not be paid for “off the clock” work and rights established under

the MWA). Albeit in a slightly different context, this court faces this same type of conflict. Thus,

as we weigh these similar considerations, we conclude that § 301 case law is relevant to our

analysis.

B. WHETHER MCCLAIN’S MWA CLAIM IS INDEPENDENT FROM THE CBAS UNDER A § 301 ANALYSIS

We now turn to address whether McClain’s MWA claim is independent from the terms of

the CBAs under a § 301-type analysis. McClain argues that because his claim is “premised solely

on the State’s failure to comply with statutory wage laws,” it does not “arise from the CBAs.”

Appellant’s Reply Br. at 15. As McClain points out, his complaint never mentions the CBAs.

This, McClain contends, means his claim is clearly independent of the CBAs.

The State rejects the notion that McClain’s MWA claim is independent under this

§ 301-type analysis, arguing that it is impossible for McClain to make his claims without

necessarily referencing the CBAs. According to the State, every aspect of the conduct McClain

alleges violates the MWA was required to be bargained for, and agreed to, by the union and the

State as part of the CBAs. Because interpreting the CBAs is necessary to even understand what

the commute pay policies are, the State asserts the CBAs must control.

Moreover, the State rejects the application of those Washington cases (construing § 301)

that have said that rights under the MWA cannot be preempted by the terms of a CBA because of

the types of MWA claims involved in those cases. The State contends those other cases involved

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MWA claims like overtime or other “off the clock” work. But claims where employees allege

that they were not paid for all “hours worked” are “more malleable,” fact-based inquiries. Wash.

Ct. of Appeals oral argument, McClain v. State, No. 59818-3-II (Jan. 27, 2025), at 22 min. 32 sec.

through 22 min. 42 sec., video recording by TVW, Washington State’s Public Affairs Network.9

Because, here, the undisputed facts are that the State and the union have negotiated specific

commuting terms in the CBAs that address the circumstances during which a trooper is entitled

to compensation, the State asserts McClain’s claim must be resolved through interpretation of

those terms. Accordingly, the State contends that even if § 301 case law was to be applied,

McClain’s claim is not independent, it is, instead, “inextricably intertwined” with the CBAs.10

Setting aside for now the impact of PECBA on this analysis and looking simply at the

independence of McClain’s MWA claim under the § 301 analogy, we are unpersuaded by the

State’s position. Even though no court has specifically addressed whether a right to be paid for

commute time or for “hours worked” under the MWA is nonnegotiable, the broader question has

been answered—wage issues can be bargained for through a CBA so long as the resulting terms

are “in excess of the applicable minimum” mandated by the MWA. See Schneider, 95 Wn. App.

at 402; UFCW, 84 Wn. App. at 52. Therefore, it does not matter whether the cases were only

addressing claims for unpaid wages for overtime or “off the clock” work. The principle in these

cases is broader; that is, employees cannot bargain away any of their minimum wage rights. As

9 https://tvw.org/video/division-2-court-of-appeals-2025011587/?eventID=2025011587 10 The State builds on these arguments with its contention that PECBA operates to compel the conclusion that the CBAs govern this dispute. We address that component of the State’s argument below.

15 No. 59818-3-II

these rights cannot be waived, McClain’s claim, rooted in the simple allegation that their commute

pay violates the MWA, is nonnegotiable and “independent of the [CBAs] by definition.”11

Commodore, 120 Wn.2d at 131.

Moreover, based on the language of Commodore (and its adoption of the Marcus model),

the fact that the State’s answer to McClain’s claim requires referencing the details of the CBAs

does not change this conclusion. See id. at 130. As explained above, Commodore suggested that

a state law claim is still independent “if it does not arise from the CBA and only the employer’s

defense mandates interpreting the CBA.” Id. Indeed, Commodore instructs that we analyze a

claim’s independence of a CBA as it is presented to us by the plaintiff, not how it is characterized

by the defense. See id. Thus, because McClain’s complaint only alleges a violation of the MWA

and there is no need to interpret the CBA to make that claim (as opposed to answer it), we

conclude McClain’s claim is independent of the CBAs under a § 301-type analysis.

We also reject the State’s contention that it is necessary to interpret the CBAs in order to

resolve McClain’s claim because the terms of the CBAs address the precise issue of “hours

worked” when a trooper is commuting. A claim is independent of a CBA “even though it may

require addressing precisely the same set of facts as would arbitration under the agreement”—the

true question is whether interpretation of the CBAs is necessary or required to make the claim.

UFCW, 84 Wn. App. at 53; Marcus, supra, at 210 n.13 (“an ‘independent’ state law claim is one

that an employee can bring without any employment contract”). Whether the hours that McClain

spent commuting meets these legal standards imposed by the MWA can be determined from

11 We reiterate, however, that we do not address, and have no opinion on, whether the commute pay these troopers received actually violates the MWA.

16 No. 59818-3-II

testimony from WSP troopers, department supervisors, or other employees. Additionally, the

hours that McClain spent commuting and the hours for which he was paid can be shown from pay

stubs and time sheets. While this information would presumably be consistent with the provisions

of the CBAs, interpretation of the CBAs is not necessary to establish these facts.12

Even if the State is correct that the bargained-for terms under the CBAs substantively meet

the requirements of the MWA because of the “malleability” of an hours worked MWA claim, the

core claim is still an MWA violation. Although the CBAs would be used as part of the State’s

defense, the underlying dispute would still be whether the MWA was violated, making the claim

independent of the CBAs.

But as noted above, even though the § 301 context is relevant here, it is not a perfect

analogy. So we press on to address the State’s main, somewhat overlapping, argument—that

PECBA requires a different result.

III. THE APPLICATION OF PECBA’S SUPREMACY CLAUSE

Regardless of whether McClain’s claim would be deemed “independent” under a

§ 301-type analysis, the State argues that PECBA requires that the CBAs and their exhaustion

requirements still prevail here. Building on its “hours worked” argument, the State contends that

PECBA’s statutory language changes the analysis of whether a CBA can limit a uniformed state

trooper’s ability to bring suit under the MWA.

12 Moreover, it is not clear that the State’s defense requires interpreting the CBAs because the parties do not seem to have identified a dispute about what the CBAs mean. In other words, the parties have not clearly identified a dispute about what the CBAs say or what they allow, the parties dispute whether the CBAs’ commute pay terms comply with the MWA.

17 No. 59818-3-II

The State appears to contend that the comprehensive bargaining structure outlined in

PECBA changes how we analyze McClain’s MWA claim under Brink’s Home Security—

requiring his claim to be resolved using the terms of the CBAs. Brink’s Home Security adopted

the definition from WAC 296-126-002(8) for “hours worked,” which requires looking at whether

an employee is on-duty and at their employer’s premises or prescribed work place to determine

whether the MWA requires an employee to be compensated for their “hours worked.” 162 Wn.2d

at 47-48. Part of the State’s argument appears to be that PECBA means that this holding from

Brink’s does not apply and that the definition of “hours worked” is dependent on the CBAs, not

WAC 296-126-002(8). The State argues that the Industrial Welfare Act, where

WAC 296-126-002(8) comes from, “is subject to exception . . . for the State.” Wash. Ct. of

Appeals oral argument, supra, at 21 min. 18 sec., through 21 min., 28 sec. “[T]herefore to the

extent [the] ‘hours worked,’ definition is inconsistent with the State’s bargain and what the State

[has] approved, that is void as to the State.” Id. at 21 min., 28 sec., through 21 min., 42 sec.

The State supports this somewhat nuanced argument by urging a close review of PECBA’s

robust bargaining provisions, arguing that because McClain’s claim surrounds mandatory

bargaining subjects and because “the legislature established a detailed statutory process through

which troopers and the State are required . . . to bargain over these very issues,” the definition of

“hours worked” must come from the CBAs. Id. at 25 min., 40 sec. through 26 min., 3 sec.

According to the State, “if the court [were to] make[] a determination that the court’s going to

decide all of [the CBAs’] terms, then the court is going to have to override the bargain between

the State and the troopers’ association that was on an issue that’s mandatory, that they were

required to bargain over, and substitute its opinion for what they bargained for.” Id. at 15 min.,

18 No. 59818-3-II

17 sec., through 15 min., 52 sec. This, the State contends, “would be entirely inconsistent with

the obligation to have, the idea of a mandatory bargaining obligation” under PECBA. Id.

The State argues that this position is not only supported by PECBA’s robust bargaining

requirements, but it is also rooted in PECBA’s supremacy clause. Section 905 of PECBA states

that its requirements and procedures “are intended to be additional to other remedies and shall be

liberally construed to accomplish their purpose” and that “if any provision of this chapter conflicts

with any other statute, ordinance, rule or regulation of any public employer, the provisions of this

chapter shall control.” RCW 41.56.905.

Based on this supremacy clause, the State contends that the provisions of PECBA control

over all conflicting statutes, including the MWA (at least with respect to an “hours worked”

claim). Resp’t Answering Br. at 21, 64-65; see Wash. Ct. of Appeals oral argument, supra, at 15

min., 17 sec., through 15 min., 52 sec. To do otherwise would be “corrosive to collective

bargaining and inconsistent with [PECBA].” Resp’t Answering Br. at 64. Thus, because PECBA

requires wages and wage related issues to be resolved through mandatory bargaining and

arbitration, McClain is bound by the bargained-for terms in the CBAs and cannot seek redress

under the MWA in court.

McClain says the State is wrong—PECBA does not say anything either in its bargaining

provisions or its supremacy clause that would change the conclusion that his claim is statutory

and independent from the CBAs. Further, McClain points out that the MWA contains its own

supremacy-type language that prevents bargaining for wages below the floor of the MWA. Thus,

McClain contends that no CBA may waive rights under the MWA regardless of PECBA.

19 No. 59818-3-II

When reconciling conflicting statutes, the primary goal is to harmonize the statutes and

give effect to both provisions if possible. Associated Gen. Contractors of Wash. v. State, 2 Wn.3d

846, 855-56, 544 P.3d 486 (2024). However, when the statutes cannot be harmonized, “we apply

recognized principles of statutory construction to arrive at the legislature’s intent.” State v. Buck,

2 Wn.3d 806, 819, 544 P.3d 506 (2024).

Statutory interpretation is a question of law that we review de novo. Lakeside Indus. v.

Dep’t of Revenue, 1 Wn.3d 150, 155, 524 P.3d 639 (2023). The goal of statutory interpretation

is to carry out the legislature’s intent. Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d

898, 904, 479 P.3d 688 (2021). We must give effect to the plain meaning of a statute as an

expression of legislative intent where possible. Id. However, when a statute is ambiguous, we

turn to traditional statutory interpretation rules to determine its meaning. Jametsky v. Olsen,

179 Wn.2d 756, 762, 317 P.3d 1003 (2014). “A statute is ambiguous if there is more than one

reasonable interpretation.” State v. Elwell, 17 Wn. App. 2d 367, 370, 486 P.3d 152 (2021).

Given that both PECBA and the MWA have supremacy clauses with potentially

conflicting language, we are tasked with analyzing what the legislature intended. First, we begin

by comparing the language of the two statutes, the MWA and PECBA. As McClain points out,

the MWA provides that employees and employers cannot agree to less than what is required under

the statute. RCW 49.46.090 (“Any agreement between such employee and the employer allowing

the employee to receive less than what is due under this chapter shall be no defense to such

action.”). Further, the MWA contains additional language that suggests that its provisions

supersede other authorities. RCW 49.46.110 provides that although generally the MWA cannot

20 No. 59818-3-II

interfere with an employee’s bargaining rights, that bargaining terms must be “in excess of the

applicable minimum under the provisions of this chapter.”

PECBA, on the other hand, protects employee bargaining rights by requiring employers

and unions to engage in collective bargaining for “personnel matters, including wages, hours, and

working conditions” and by prohibiting employers from interfering with those rights. RCW

41.56.030; RCW 41.56.140; RCW 41.56.150. And as noted above, PECBA’s supremacy

language states these requirements and procedures outlined in PECBA “shall be liberally

construed” and that its provisions control over “any other statute, ordinance, rule or regulation of

any public employer.” RCW 41.56.905.

A. PLAIN LANGUAGE

McClain heavily relies on the MWA’s supremacy language in RCW 49.46.110 and RCW

49.46.090. These two provisions, according to McClain, make it clear that “the [MWA] sets the

baseline for wages which all employees . . . are entitled,” regardless of whether their bargaining

was subject to PECBA. Appellant’s Reply Br. at 34.

On the other hand, the State contends that PECBA’s supremacy clause, RCW 41.56.905,

is dispositive, especially given that McClain is making an “hours worked” claim. PECBA’s

supremacy clause makes it clear that disputes involving mandatory bargaining subjects, like

wages, cannot be resolved outside of CBA procedures even if there would otherwise be a statutory

cause of action.

While the plain language of each of these statutes is clear when read in isolation, the

language is arguably unclear as to whether the legislature intended PECBA (and CBAs under

PECBA), to control over the requirements of the MWA. Because the statutory language could

21 No. 59818-3-II

be interpreted to mean that either the MWA or PECBA controls over the other, we must look

further to determine legislative intent. See Buck, 2 Wn.3d at 815 (once it is determined that the

language of a statute or statutes is ambiguous, other sources of legislative intent may be

referenced, including statutory construction, legislative history, and relevant case law to

determine legislative intent).

B. PERC INTERPRETATION OF PECBA’S SUPREMACY CLAUSE

Specific to PECBA, another source to interpret the statutory language is the decisions of

the Public Employment Relations Commission (PERC). PECBA empowers PERC “to adjudicate

unfair labor practice complaints and to issue rules and regulations to carry out the provisions of

the public employee collective bargaining statutes,” including PECBA. Snohomish County Pub.

Transp. Benefit Area v. Pub. Emp’t Relations Comm’n, 173 Wn. App. 504, 515, 294 P.3d 803

(2013). While courts are not bound by PERC’s decisions, “PERC’s interpretation of collective

bargaining statutes is ‘entitled to substantial weight and great deference.’ ” Pasco Police Officers’

Ass’n v. City of Pasco, 132 Wn.2d 450, 470, 938 P.2d 827 (1997) (quoting City of Bellevue v.

Int’l Ass’n of Fire Fighters, Loc. 1604, 119 Wn.2d 373, 382, 831 P.2d 738 (1992)).

PERC has discussed the appropriate breadth of PECBA’s supremacy clause (RCW

41.56.905). Despite “the seemingly all-encompassing scope of RCW 41.56.905,” PERC has

determined that the bargaining requirements of PECBA do not control over all other statutes.

Kitsap County Deputy Sheriff’s Guild v. Kitsap County, No. 132943-U-20, at 12 (Wash. Pub.

Emp’t Relations Comm’n Feb. 5, 2021). It has explained that when the legislature “occupies the

field” on an issue, or takes away an employer’s authority to bargain about that issue, PECBA’s

supremacy clause does not apply—even if that issue would otherwise be a mandatory subject of

22 No. 59818-3-II

bargaining. Id. at 5, 11. To determine if the legislature “occupies the field,” PERC will examine

a particular statute to see if there was legislative intent for that statute to control over an

employee’s bargaining rights. See Int’l Ass’n of Fire Fighters, Loc. 27 v. City of Seattle,

No. 10901-U-94-2536, at 5-10 (Wash. Pub. Emp’t Relations Comm’n Mar. 18, 1997).

For example, in Int’l Ass’n of Fire Fighters, PERC looked at the statutory language (and

court interpretations) of the Law Enforcement Officers and Fire Fighters Retirement System

(LEOFF). Id. at 6-10. Analyzing case law, PERC noted that the court referred to LEOFF using

“absolute and pre-emptive terms” like “exclusive retirement act for employees that it covers” or

that it “transfers present members . . . into the new system without any choice on their part.” Id.

at 9 (emphasis added) (boldface omitted) (alteration in original). Based on this language, PERC

found that LEOFF “occupies the field of fire fighter pensions, so that this employer cannot legally

bargain over the union’s proposal.” Id. at 5. Because the legislature intended LEOFF to occupy

the field, PECBA’s supremacy clause, broad though it may be, did not apply. Id.

Especially given the “substantial weight” we give PERC decisions that interpret PECBA,

we agree with its formulation that PECBA’s supremacy clause does not supersede another statute

if the legislature has “occupied the field” on a particular issue.13 Thus, PECBA does not give

13 As part of its argument that PECBA’s supremacy clause defeats McClain’s claim, the State cites to our Supreme Court’s decision in Rose v. Erickson, 106 Wn.2d 420, 721 P.2d 969 (1986). In Rose, our Supreme Court determined that PECBA’s supremacy clause allowed parties to bargain terms that were inconsistent with chapter 41.14 RCW (civil service for sheriff’s office). Id. at 421. While Rose represents an endorsement of the strength of PECBA’s supremacy clause, the circumstances here can be distinguished. In Rose, our Supreme Court found a facial conflict between chapter 41.14 RCW and PECBA, but it gleaned from the chronology of enactments that the legislature did not intend for chapter 41.14 RCW to supplant PECBA. Id. at 424. Such an analysis, of course, would have been unnecessary if PECBA superseded all other statutes on every occasion. But more importantly, there was no indication that the legislature intended to “occupy

23 No. 59818-3-II

employers and unions authority to create agreements that would clearly violate applicable statutes

or court decisions. Kitsap County, No. 132943-U-20 at 22. Applying these principles here, it

does not matter that wage issues are typically mandatory subjects of bargaining. We look at the

MWA to see if this type of legislative intent is evident. We believe there is such an intent, at least

with respect to the floor of minimum wage rights in the MWA.

We emphasize “the floor of minimum wage rights” intentionally. The State accurately

argues that PECBA requires bargaining about wage and wage issues. Clearly, then, one cannot

conclude that the legislature “occupied the field” of wages generally with the MWA. But when

the “field” is the issue of the floor of minimum wage rights, the case law makes it evident that the

legislature has “occupied” that entirely with the MWA. This is true even if the claim relates to

the floor of required compensation for “all hours worked.” What standards to apply for an “hours

worked” claim in this context, whether simply the formulation in Brinks or some other standard,

goes to the merits of the claim, not the underlying character of the claim.14 The claim remains, at

its root, a claim for violating the floor of minimum wage rights protected by the MWA.

the field” with chapter 41.14 RCW to the same degree seen in the LEOFF (discussed in Int’l Ass’n of Firefighters) or the MWA. Thus, we find Rose unhelpful. 14 Part of the State’s argument, especially at oral argument, appears to be that in the unique context of uniformed state employees, PECBA allows the parties to essentially bargain for what should constitute “hours worked” under the MWA. We view the question of what standard to apply to defining “hours worked” as going to the merits of the dispute and offer no opinion on that question. Indeed, because “hours worked” is not defined in the MWA, it is possible that the formulation in Brinks (and its adoption of WAC 296-126-002(8)) may be ultimately determined to be inapplicable to McClain’s MWA claim; nonetheless our independent claim analysis would remain the same. See Commodore, 120 Wn.2d at 130 (claims are still independent if they “do not arise from the CBA and only the employer’s defense mandates interpreting the CBA”).

24 No. 59818-3-II

The MWA’s provisions clearly show that the legislature did not intend for the provisions

of the MWA to be bargained away. See RCW 49.46.090; RCW 49.46.110. And multiple

decisions from courts have used language that is consistent with this—describing that MWA

rights “cannot be waived” and are “nonnegotiable.” See, e.g., Hisle, 151 Wn.2d at 864, n.8; see

also UFCW, 84 Wn. App. at 52 (“In enacting [MWA] protections, the Legislature stated that

parties, bargaining collectively, may establish wages or other work conditions only ‘in excess of

the applicable minimum.’ ”) (quoting RCW 49.46.110).

We also note that by following PERC’s approach, we interpret the MWA and PECBA as

harmoniously as possible. See Associated Gen. Contractors of Wash., 2 Wn.3d at 855-56.

Despite what the State seems to contend, the fundamental protections of the MWA are typically

not in conflict with PECBA’s “detailed statutory process” that requires the troopers union and the

State to bargain over wage issues. See Wash. Ct. of Appeals oral argument, supra at 25 min., 40

sec. through 26 min., 3 sec. The WSPTA and the State must still follow PECBA’s detailed

bargaining process and bargain over mandatory subjects—they just cannot bargain below the

floor.

Therefore, we hold that PECBA’s supremacy clause does not apply to supersede the

MWA with respect to the floor of minimum wage rights, including for claims based on

To the extent that the State is making a slightly different argument, that because of PECBA, the troopers are no longer entitled to compensation for their “hours worked” pursuant to the MWA, we flatly reject that position. We see no viable basis to conclude that public employees lose the protections of their rights under the MWA (or that it is not appropriately characterized as a claim under the MWA) even if it turns out that the parties’ bargaining is not irrelevant to the merits or even if the formulation in Brink’s is found not to apply. The claim remains an MWA claim.

25 No. 59818-3-II

compensation for “hours worked.” The MWA makes it clear that parties cannot bargain around

these rights. And if PECBA’s role in this dispute does not apply to change the application of the

MWA, then we are left with confidence in our conclusion under the § 301 analysis that McClain’s

claim is independent of the CBAs. Thus, the claim may be brought in superior court without

exhausting the procedures under the CBAs.

IV. MCCLAIN’S STANDING TO PURSUE MWA CLAIM

The State argues that even if a stand-alone MWA claim may be brought outside of the

CBAs, McClain lacks standing to make it. The State argues that PECBA and PERC have

established the WSPTA as the “exclusive representative of troopers for the purposes of

establishing terms and conditions of employment.” Resp’t Answering Br. at 69. The State further

contends that “[PECBA] does not contemplate or grant individual troopers authority to bring an

action in superior court for their disagreement over conditions subject to bargaining—and on

behalf of all other troopers.” Id. at 70. It only gives that right to the WSPTA or the WSP itself.

McClain responds that PECBA does not preclude him from bringing an MWA claim

because it “does not divest public employees of standing to assert their statutory wage claims in

a judicial forum.” Appellant’s Opening Br. at 5. Because his claim is purely statutory in nature,

McClain contends that PECBA and the CBAs do not have authority to determine whether he has

standing.

We are unpersuaded by the State’s argument. The language of the CBAs and PERC

specifically designate the WSPTA as the “exclusive bargaining representative.” CP at 94, 124;

Wash. State Patrol Troopers Ass’n, No. 6990-E-87-1202, at 1-2 (Wash. Pub. Emp’t Relations

Comm’n Nov. 23, 1987); Aldridge v. Wash. State Patrol Troopers Ass’n, No. 130029-U-18

26 No. 59818-3-II

(Wash. Pub. Emp’t Relations Comm’n Aug. 1, 2019) (emphasis added). There is no language

that designates the union as the exclusive representative for all disputes. We cannot ignore the

use of the term “bargaining” and expand the exclusive nature of the WSPTA’s standing to include,

as the State urges, “litigation of wage and wage-related matters, particularly on behalf of a ‘class’

or ‘group.’ ” Resp’t Answering Br. at 70. PECBA defines “collective bargaining” to mean “the

mutual obligations of the public employer and the exclusive bargaining representative to meet at

reasonable times, to confer and negotiate in good faith, and to execute a written agreement with

respect to grievance procedures.” RCW 41.56.030. And PERC has clearly distinguished between

what is bargaining and what is litigation when it describes limitations on its authority. See Minetti

v. Port of Seattle, No. 6201-U-86-1179, No. 6214-U-86-1182, at 16-17 (Wash. Pub. Emp’t

Relations Comm’n Dec. 16, 1988) (distinguishing between its ability to resolve matters involving

collective bargaining and to decide a class action). Therefore, we reject the State’s argument that

the WSPTA’s status as “exclusive bargaining representative” applies to litigation or situations

that are not bargaining. At least on this record, we see nothing else that prevents McClain from

having standing to pursue his claims.15

V. ADDITIONAL CLAIMS—WAGE REBATE ACT AND UNJUST ENRICHMENT

As noted, McClain specifically addressed only his MWA claim in his briefing and not his

WRA claim or tort claim for unjust enrichment. At oral argument, McClain confirmed that his

unjust enrichment claim is merely a mechanism for recovery for his statutory claims under the

15 We offer no opinion about whether the claims may eventually be appropriately brought as a class action.

27 No. 59818-3-II

MWA and the WRA. See Wash. Ct. of Appeals oral argument, supra, at 5 min., through 5 min.,

38 sec. However, McClain conceded that the two statutory claims could require different

analyses.16 Neither party provided us any analysis of the WRA claim.

Thus, we limit our decision to McClain’s MWA claim (and the tort claim related to the

MWA) only. The WRA is a distinct statute that, among other differences with the MWA, includes

a general waiver provision; RCW 49.52.070 provides that “the benefits of [the WRA] shall not

be available to any employee who has knowingly submitted to such violations.” Whether the

analysis of McClain’s MWA claim would be different for his WRA claim due to this, or some

other difference between the two statutes, has not been briefed. Accordingly, while we reverse

the superior court’s exhaustion decision in its entirety, we do so without prejudice to the State’s

ability to separately move the superior court, if it so desires, for dismissal of the WRA claim

under the theory of exhaustion.

CONCLUSION

McClain’s allegation that his rights under the MWA are being violated may be brought in

superior court without exhausting grievance and arbitration procedures under the CBAs. While

16 The following exchange occurred at oral argument with McClain’s counsel: [Q:] So, . . . if the Wage Rebate Act claim doesn’t depend on the Minimum Wage Act claim, then at least in my mind we have to look at those statutory provisions separately, right? [A:] Correct, your honor. Wash. Ct. of Appeals oral argument, supra, at 3 min., 58 sec., through 4 min., 18 sec.

28 No. 59818-3-II

we do not speculate on whether McClain will ultimately be able to prove a violation, neither the

terms of the CBAs nor the supremacy clause of PECBA bar him from trying. Thus, we reverse

the superior court, but without prejudice regarding McClain’s WRA claim.

PRICE, J. I concur:

GLASGOW, J.

29 No. 59818-3-II

LEE, P.J. (dissenting) — The majority holds that the claims brought by the Washington

State Patrol (WSP) troopers are allowed to proceed because their claims are independent of the

terms of the Collective Bargaining Agreement (CBA). I respectfully disagree.

The negotiated terms under the CBAs include the assignment of state vehicles to some

troopers, the scope of the troopers’ use of their assigned state vehicle, and a determination of

when troopers with assigned state vehicles are “on-duty” while commuting in their assigned state

vehicle and entitled to compensation. Clerk’s Papers (CP) at 98, 128. Specifically, the CBAs’

terms regarding commuting in an assigned state vehicle include:

9.5 Commute Line employees shall be required to be in their [assigned patrol area] or geographic area at the start and end of their work shift and shall advise Radio when they enter and leave their [assigned patrol area]. Employees shall sign in service and travel to and from their [assigned patrol area] on off-duty status, but shall be obliged to take appropriate action in the event of a disabled vehicle, an accident, or a criminal traffic violation observed while commuting. When such appropriate action is taken:

A. The employee shall go on on-duty status while commuting;

B. The employee shall be in overtime status for the period of time preceding his/her normal scheduled shift;

C. The employee shall not be on call-out status; and

D. The employee’s normal shift will end at the regularly-scheduled time for that shift.

In such event, the employee shall immediately request assistance from on- duty personnel, and the on-duty status of the employee shall cease as soon as assistance arrives that relieves the employee of the need to take appropriate action. Employees shall not abuse the “take appropriate action” provisions of this Section in an attempt to earn overtime, and employees who so abuse this Section shall be subject to discipline.

30 No. 59818-3-II

CP at 98, 128 (emphasis in original).

The State and the Washington State Patrol Troopers Association (WSPTA) specifically

negotiated the terms relating to compensation allowed during a trooper’s commute in an assigned

state vehicle. As stated by Lane Hatfield, who negotiated the CBAs at issue on behalf of the

State:

6. The State and WSPTA have bargained over and the CBAs contain extensive terms regarding hours of work and pay for troopers. . . .

7. In addition, the State and WSPTA have bargained over and the CBAs address a broad range of issues relating to troopers’ use of their assigned State vehicles to commute between their homes and their work areas. These include: the right of troopers to live and commute to residences outside of their autonomous patrol area (“APA”); the right of troopers to use State vehicles to commute between home and work; the circumstances under which troopers are considered on-duty and off-duty while commuting; and whether and the extent to which troopers receive extra pay while commuting (collectively “Commuting Issues”). My understanding is that the Public Employment Relations Commission (“PERC”) has held that these Commuting Issues are mandatory subjects of bargaining, and they appear to be important to the WSPTA and troopers.

8. During bargaining, the WSPTA has raised Commuting Issues, including the ability of troopers to live outside of their APAs, whether troopers are allowed to use State vehicles to commute between their homes and APAs or assigned work locations, whether (and under what circumstances) troopers are on- duty during their commutes, and whether troopers should be paid for time spent commuting in State vehicles. The WSPTA has also advanced many other economic and non-economic requests. In the bargaining process, the State assesses and places a value on these requests and strikes bargains with the WSPTA. We agree to some requests, and the WSPTA gives up on others. This is how bargaining works, where both sides balance the costs, benefits, and importance of issues. This has been true for Commuting Issues just like any other bargaining issues. In the past, WSPTA has withdrawn proposals for certain paid commute time in exchange for other benefits. Ultimately, these bargaining tradeoffs are submitted to the Governor, the Legislature, and the WSPTA’s membership, and the entire bargain (including tradeoffs) is accepted or rejected.

CP at 86-87.

31 No. 59818-3-II

Joseph McClain, Linda Allen, and Jacob Payne (collectively “McClain”) filed suit against

the State, alleging the State has violated the Minimum Wage Act (MWA) and the Wage Rebate

Act (WRA) because troopers are entitled to unpaid wages for “time spent driving Washington

State Patrol vehicles between the troopers’ homes and their assigned patrol areas or geographic

areas.” CP at 2. The superior court dismissed McClain’s claims, granting the State’s motion for

summary judgment based on McClain’s failure to “exhaust mandatory bargaining, grievance and

arbitration, and other statutorily required procedures.” CP at 30. As the majority aptly stated, in

this appeal, “we are tasked solely with resolving whether McClain is barred from directly bringing

[their] statutory claims in superior court without exhausting the procedures in the CBAs.”

Majority at 3.

The majority holds that McClain’s MWA claim is independent of the terms of the CBAs,

and therefore, McClain may bring their claim in superior court. I respectfully disagree.

The CBAs allow McClain to have an assigned state vehicle. The CBAs also allow

McClain to commute to and from their home in their assigned state vehicle. The CBAs further

outline the circumstances when McClain is entitled to pay when commuting in their assigned state

vehicle. These terms were specifically negotiated and bargained for. McClain’s MWA claim

arises solely out of the fact that they are commuting in the assigned state vehicle. Without the

ability to have an assigned state vehicle allowed for under the CBAs, McClain would have no

claim. Therefore, I would hold that McClain’s claim for unpaid wages for their commute is not

independent of the CBAs and is subject to exhaustion of the grievance and arbitration procedures

under the CBAs.

32 No. 59818-3-II

The majority correctly sets forth the legal principles applicable in this case. However,

where the majority and I part is in the application of the legal principles to the facts of this case.

McClain’s MWA claim is “founded directly on [the] rights created by a collective bargaining

agreement.” United Food & Com. Workers Union Loc. 1001 v. Mut. Benefit Life Ins. Co., 84 Wn.

App. 47, 51, 925 P.2d 212 (1996), review denied, 133 Wn.2d 1021 (1997), abrogated in part on

other grounds, Seattle Pro. Eng’g Emps. Ass’n v. Boeing Co., 139 Wn.2d 824, 834, 991 P.2d

1126 (2000). Undeniably, McClain has no claim whatsoever if they did not have the benefit of

an assigned state vehicle that was specifically bargained for in the CBAs. Thus, McClain’s MWA

claim would not exist without the CBAs.

And the CBAs specifically addressed not only the allowance of an assigned state vehicle,

but also included specifically negotiated and bargained for terms addressing the circumstances

under which McClain would be paid while commuting in the bargained for assigned state vehicle.

To be clear, McClain’s MWA claim is not that all troopers should be paid for their commute time.

Rather, McClain’s MWA claim is limited to troopers commuting in an assigned state vehicle.

But the terms under which troopers are paid when commuting in an assigned state vehicle was

specifically negotiated and bargained for under the CBA. Hence, McClain’s MWA claim is

“inextricably intertwined” with the terms of the CBAs. Hisle v. Todd Pac. Shipyards Corp., 151

Wn.2d 853, 863, 93 P.3d 108 (2004). McClain’s claims merely attempt to now expand what was

already specifically negotiated and bargained for under the CBAs and cannot be characterized as

independent. As the majority correctly points out, “‘[I]f no cause of action would exist without

the CBA’ then the claim is not independent.” Majority at 11 (quoting Stephanie R. Marcus, The

33 No. 59818-3-II

Need for A New Approach to Federal Preemption of Union Members’ State Law Claims, Note,

99 Yale L.J. 209, 210 n.13 (1989)),

I would hold that McClain’s MWA claim is not independent of the CBAs and affirm the

superior court.

Lee, P.J.