King County Public Hospital District 2, V. Wa State Nurses Association

• Court: Court of Appeals of Washington
• Decided: October 17, 2022
• Docket: 83750-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KING COUNTY PUBLIC HOSPITAL DISTRICT #2 d/b/a No. 83750-8-I EVERGREENHEALTH, DIVISION ONE Appellant, UNPUBLISHED OPINION v.

WASHINGTON STATE NURSES ASSOCIATION,

Respondent.

HAZELRIGG, J. — King County Public Hospital District #2 d/b/a

EvergreenHealth (the District) appeals from a dismissal under CR 12(b)(6). The

District brought an action for declaratory judgment, breach of contract, and unfair

labor practices against the Washington State Nurses Association (WSNA).

Even presuming all of the District’s allegations are true it fails to demonstrate

entitlement to a legal remedy. Therefore, dismissal was proper.

FACTS

EvergreenHealth, also known as King County Hospital District #2, is a

public hospital in King County. As a public hospital, its nursing staff bargain

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83750-8-I/2

through WSNA to implement collective bargaining agreements which govern

wages, hours of work, and conditions of employment. Section 7.7 of the 2019-

2021 collective bargaining agreement (CBA) discusses meal and rest periods. In

November, 2016, a nurse, formerly employed by the District, filed a putative class

action alleging the District denied nurses statutorily guaranteed rest and meal

breaks.1 The District opposed class certification, arguing that the class members

failed to exhaust the applicable arbitration and grievance procedure before filing

a claim.2 After the trial court denied its motion to compel arbitration, the District

appealed.3 In addition to deciding the arbitration issue, this court held that

Section 7.7 of the CBA did not vary from WAC 296-126-092.4 In 2019, the

District petitioned the state Supreme Court for review, and WSNA filed an amicus

brief in that appeal in early 2020. Consistent with the holding of this court,

WSNA argued in its amicus brief that the language of the CBA did not deviate

from regulations governing meal and rest periods. Later that year, WSNA made

several oral and written communications which asserted its position that the CBA

did not depart from WAC 296-126-092, and informed nurses they should report

any lack of a second meal period as a missed meal period so the nurses would

receive compensation.

The District filed a complaint for declaratory relief in January, 2021, in King

County Superior Court. It amended its complaint in March, 2021, in response to

1 Jeoung Lee v. Evergreen Hospital Medical Center, 7 Wn. App. 2d 566, 570–71, 434

P.3d 1071 (2019) (Lee I). 2 Id. at 571. 3 Id. 4 Id. at 580.

-2- No. 83750-8-I/3

an order granting WSNA’s motion for a more definite statement, and added

claims for breach of contract and unfair labor practices. WSNA moved to dismiss

under CR 12(b)(6), arguing the District’s claims were legally insufficient. The

court granted the motion and dismissed the case with prejudice. The District

timely appealed.

ANALYSIS

I. CR 12(b)(6)

This court reviews a dismissal under CR 12(b)(6) de novo. FutureSelect

Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331

P.3d 29 (2014). “The facts alleged in the complaint must be accepted as true,

and a court may consider hypothetical facts that could support recovery.” Mason

v. Mason, 19 Wn. App. 2d 803, 819, 497 P.3d 431 (2021). CR 12(b)(6) dismissal

is proper when there are no facts the plaintiff could prove which would entitle

them to relief. Dave Robbins Constr., LLC v. First Am. Title Co., 158 Wn. App.

895, 899, 249 P.3d 625 (2010). “‘This weeds out complaints where, even if what

the plaintiff alleges is true, the law does not provide a remedy.’” Id. (quoting

McCurry v. Chevy Chase Bank, F.S.B., 169 Wn.2d 96, 101, 233 P.3d 861

(2010)). However, dismissal at this stage “‘“should be granted sparingly and with

care.”’” Mason, 19 Wn. App. 2d at 819 (quoting J.S. v. Village Voice Media

Holdings, LLC, 184 Wn.2d 95, 100, 359 P.3d 714 (2015)).5

5 On appeal, the District presents procedural arguments that the court failed to presume

its allegations were true and instead gave credit to WSNA’s hypotheticals. However, these challenges were not raised until its reply brief and are thus improper. See RAP 10.3(c) (“A reply brief should . . . be limited to a response to the issues in the brief to which the reply brief is directed.”).

-3- No. 83750-8-I/4

As a general rule, a court may not consider “‘matters outside the

pleading,’” otherwise the motion is converted to one for summary judgment.

Washington State Human Rights Comm’n v. Hous. Auth. of City of Seattle, 21

Wn. App. 2d 978, 983, 509 P.3d 319 (2022) (quoting CR 12(b)(7)). However, if

the contents of a document “are alleged in the complaint,” but not attached to the

complaint, those contents may be considered without converting the 12(b)(6)

motion to a summary judgment motion. Id. (quoting Trujillo v. Nw. Tr. Servs.,

Inc., 183 Wn.2d 820, 827 n.2, 355 P.3d 1100 (2015)). Additionally, the court may

properly “‘take judicial notice of public documents if their authenticity cannot be

reasonably disputed.’” Id. at 983 (quoting Rodriguez v. Loudeye Corp., 144 Wn.

App. 709, 725–26, 189 P.3d 168 (2008)). Here, both the amicus brief and CBA

are referenced in the pleadings and were transmitted to this court as part of the

record on appeal.

Both parties submitted materials to this court from the ongoing

proceedings in the Lee6 case in King County Superior Court; WSNA in a

“Statement of Supplemental Authority” filed just prior to oral argument, and the

District in court during oral argument. These materials are outside the record of

the instant appeal. We decline to consider any of those additional materials as

we are limited by the posture presented by an appeal from a 12(b)(6) motion to

dismiss and by the Rules of Appellate Procedure. See RAP 9.6(a) (“a party may

supplement the designation only by order of the appellate court, upon motion”),

RAP 9.11 (delineating the narrow circumstances under which this court will

6 In this opinion we will refer to the ongoing case Jeoung Lee v. Evergreen Hospital Medical Center, King County Superior Court Case No. 16-2-27488-9 SEA, as Lee.

-4- No. 83750-8-I/5

consider additional evidence), Washington State Human Rights Comm’n, 21 Wn.

App. 2d at 983 (generally, “if ‘matters outside the pleading are presented to and

not excluded by the court, the motion shall be treated as one for summary

judgment’” unless the court takes judicial notice of public documents “‘if their

authenticity cannot be reasonably disputed.’”) (quoting CR 12(b)(7), Rodriguez,

144 Wn. App. at 725-26).

At oral argument, WSNA requested that we take judicial notice of an order

from the ongoing Lee litigation it had submitted a few days prior. As a

preliminary matter, the Lee orders are not the sort of evidence appropriate for

judicial notice under ER 201. ER 201 governs when a court may (and must) take

judicial notice of adjudicative facts. “[A]djudicative facts are facts that are

relevant to the case and that help explain who did what, when, where, how, and

with what motive and intent.” 5 KARL B. TEGLAND & ELIZABETH A. TURNER,

WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 201.2 (6th ed. 2022).

Under this rule, a fact may be judicially noticed if it is “not subject to reasonable

dispute,” either because it is “generally known within the territorial jurisdiction” or

because it is “capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” ER 201. WSNA provides no

argument as to whether trial court documents from other proceedings fall within

the scope of ER 201, much less how we would reconcile their request with the

procedural posture of this appeal.

More critically, under the express language of CR 12(b)(7), the trial court’s

consideration of matters outside the original pleadings converts the proceeding to

-5- No. 83750-8-I/6

one for summary judgment, a conversion we will not undertake at the appellate

stage. In a CR 12(b)(6) motion to dismiss, a trial court “may take judicial notice

of public documents if the authenticity of those documents cannot be reasonably

disputed.” Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844, 347

P.3d 487 (2014) (emphasis added). “However, we cannot, while deciding one

case, take judicial notice of records of other independent and separate judicial

proceedings even though they are between the same parties.” In re Adoption of

B.T., 150 Wn.2d 409, 415, 78 P.3d 634 (2003). In the context of the procedural

limitations presented by an appeal from a dismissal under CR 12(b)(6), we

decline to take judicial notice of the Lee documents under RAP 9.6(a) and RAP

9.11. For similar reasons, we likewise will not consider the extrinsic materials the

District attempted to present at oral argument, but note that those documents are

also rejected based on the manner by which they were presented to this court.

The District did not provide the materials to opposing counsel until oral argument,

in its rebuttal no less, depriving WSNA of any opportunity to respond to the

documents.

II. Justiciability Under the Uniform Declaratory Judgments Act

The District argues the court erred dismissing its declaratory judgment

action as non-justiciable.7 Under the Uniform Declaratory Judgments Act

7 The District first argues the trial court misunderstood WSNA’s relationship to the CBA

and erred by concluding WSNA was a “spectator.” However, the report of proceedings establishes that this was not a legal conclusion, but rather, merely a descriptor used by the trial court when it referred to WSNA, and, in explaining why there was no justiciable controversy between the parties or duty under the CBA, likened the union’s statements about the interpretation of the CBA to a Seattle Times editorial. These statements seem to be part of the

-6- No. 83750-8-I/7

(UDJA), ch. 7.24 RCW, “[c]ourts of record within their respective jurisdictions

shall have power to declare rights, status and other legal relations whether or not

further relief is or could be claimed.” RCW 7.24.010. The purpose of the UDJA

“is to ‘settle and to afford relief from uncertainty and insecurity with respect to

rights, status and other legal relations,’ and courts should liberally construe and

administer it.” Bloome v. Haverly, 154 Wn. App. 129, 140, 225 P.3d 330 (2010)

(quoting RCW 7.24.120). However, a party seeking relief under the UDJA must

meet “certain threshold requirements,” including demonstrating that a justiciable

controversy exists between the parties. Id. A justiciable controversy involves

four elements:

“‘(1) ... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.’”

Id. at 140–41 (quoting To–Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27

P.3d 1149 (2001)). All four elements must be met to prevent the court from

entering “‘the prohibited area of advisory opinions.’” Id. at 141 (quoting Branson

v. Port of Seattle, 152 Wn.2d 862, 877, 101 P.3d 67 (2004)) (internal quotation

marks omitted).

The District’s UDJA claim arises out of WSNA’s amicus brief filed with the

Washington State Supreme Court in Jeoung Lee v. Evergreen Hospital Medical

Center (Lee II), 195 Wn.2d 699, 464 P.3d 209 (2020), and subsequent

trial court’s rulings as to the declaratory judgment claim and the breach of contract claim and will be analyzed as part of those issues, rather than as an independent assignment of error.

-7- No. 83750-8-I/8

communications to its member nurses. The District alleged WSNA made “oral

and written communications” and placed a “notice on its website” asserting that

the CBA does not vary from labor regulations on the number and timing of meal

breaks. We first analyze whether a judicial determination of the issue would be

final and conclusive.

In Bellewood No. 1, LLC v. LOMA, this court found that a judicial

determination resolving the merits of an annexation ordinance would be final

“regardless of the outcome of the special election,” and “there were no more

facts to be developed,” therefore the fourth element of justiciability was met. 124

Wn. App. 45, 50, 97 P.3d 747 (2004). In contrast, the Lee case is ongoing after

remand to the trial court. See Lee II, 195 Wn.2d at 708–09. The Lee class

members are not a party to the current case against WSNA, and thus not bound

by any determination made by the court, but the District is a party to both cases

and subject to orders in both cases. Therefore, a determination by the trial court

in this action would not have been final and conclusive, as a different trial judge

could make a binding determination on the exact same issue in the Lee case.

Because a plaintiff must meet all four elements of justiciability to sustain a claim

under the UDJA, we need not analyze the other elements to conclude dismissal

was proper.

III. Breach of Contract

The District next argues the court erred by dismissing its claims for breach

of contract. The District alleges WSNA breached Section 7.7 of the CBA by

encouraging members to report “missed” second meal periods, and that it -8- No. 83750-8-I/9

breached the duty of good faith and fair dealing by “fundamentally chang[ing] the

expectations for employment.”

“In a breach of contract action, the plaintiff must prove that a valid

agreement existed between the parties, the agreement was breached, and the

plaintiff was damaged.” Univ. of Washington v. Gov’t Emp. Ins. Co., 200 Wn.

App. 455, 467, 404 P.3d 559 (2017). If there is no duty imposed by the contract,

“there can be no breach or resulting damages.” Fidelity & Deposit Co. of

Maryland v. Dally, 148 Wn. App. 739, 746, 201 P.3d 1040 (2009). When

interpreting the language of a contract, this court gives words “their ordinary,

usual, and popular meaning unless the entirety of the agreement clearly

demonstrates a contrary intent.” Freestone Cap. Partners L.P. v. MKA Real Est.

Opportunity Fund I, LLC, 155 Wn. App. 643, 671, 230 P.3d 625 (2010).

A. Duty Under CBA Section 7.7

The District first contends WSNA has a duty to monitor member

compliance with the CBA and must refrain from encouraging members to violate

the agreement. Specifically, the District alleges WSNA encouraged members to

violate Section 7.7 of the CBA, which requires members to record and attest to

any missed meal or rest breaks in order to be compensated. 8

8 While the CBA appears in the record as an appendix to WSNA’s motion for a more

definite statement, if the contents of a document are referenced in the complaint, but not attached, the court may consider the document without converting the 12(b)(6) motion to one for summary judgment. Washington State Human Rights Comm’n, 21 Wn. App. 2d at 983 (quoting Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 827 n.2, 355 P.3d 1100 (2015)). The District’s Amended Complaint references the 2019-2020 CBA several times, including Section 7.7 specifically. Therefore, the CBA may properly be considered.

-9- No. 83750-8-I/10

At best, the District stretches the language of the cases it cites for the

contentions that a union bears responsibility for its members. The District first

cites Bowen v. United States Postal Service, 459 U.S. 212, 226, 103 S. Ct. 588,

74 L. Ed. 2d 402 (1983). In Bowen, an employee sued his union after it declined

to take his discharge claim to arbitration. Id. at 220. The Court concluded that

the union could be allocated damages from an employer’s breach of the

collective bargaining agreement because of the union’s role as the exclusive

representative. Id. at 224, 226. The Court stated that, “[b]y seeking and

acquiring the exclusive right and power to speak for a group of employees, the

union assumes a corresponding duty to discharge that responsibility faithfully-a

duty which it owes to the employees whom it represents and on which the

employer with whom it bargains may rely.” Id. at 226. The District’s contention

that Bowen places responsibility for member compliance with a CBA on the union

is not reflected in the language of the case. Rather, it requires unions discharge

their responsibility to speak for the group faithfully.

The District next cites to Glacier Northwest, Inc. v. International

Brotherhood of Teamsters Local Union No. 174 to argue, “a union must refrain

from inciting, encouraging, or misleading its members into violating” a CBA.9 15

Wn. App. 2d 393, 475 P.3d 1025 (2020). Glacier Northwest analyzed claims of

fraudulent and negligent misrepresentation, and tortious interference, neither of

which are alleged in the District’s complaint. Id. at 414. A union, like any other

individual or entity, must refrain from “‘intentionally and improperly interfer[ing]

9 The District does not provide citation to any specific portion of the case in support of this

assertion.

-10- No. 83750-8-I/11

with the performance of a contract . . . by preventing the other from performing

the contract or causing his performance to be more expensive or burdensome.’”

Id. at 415 (quoting RESTATEMENT (SECOND) OF TORTS section 766A (Am. Law

Inst. 1979)). This does not impose a contractual duty, but merely notes the

elements of a cause of action in tort. Even taking all allegations in the complaint

as true, the District fails to state a basis for legal relief and therefore its breach of

contract claim was properly dismissed.

B. Duty of Good Faith and Fair Dealing

Under Washington law, every contract contains “‘an implied duty of good

faith and fair dealing’ that ‘obligates the parties to cooperate with each other so

that each may obtain the full benefit of performance.’” Rekhter v. Dep’t of Soc. &

Health Servs., 180 Wn.2d 102, 112–13, 323 P.3d 1036 (2014) (quoting Badgett

v. Sec. State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991)). This duty does

not “‘inject substantive terms into the parties’ contract,’” but “requires only that

the parties perform in good faith the obligations imposed by their agreement.”

Badgett, 116 Wn.2d at 569 (quoting Barrett v. Weyerhaeuser Co. Severance Pay

Plan, 40 Wn. App. 630, 635 n.6, 700 P.2d 338 (1985)). “If there is no contractual

duty, there is nothing that must be performed in good faith.” Johnson v.

Yousoofian, 84 Wn. App. 755, 762, 930 P.2d 921 (1996). Here, the District fails

to make a link between WSNA’s actions and an obligation imposed by the CBA.

Without a contractual duty to be performed in good faith, there can be no breach

of the duty of good faith and fair dealing. As such, dismissal was appropriate.

-11- No. 83750-8-I/12

IV. Unfair Labor Practices

The District next asserts WSNA committed an unfair labor practice,

arguing that because WSNA “repudiated the long-standing practice of the

parties,” it refused to engage in collective bargaining. Under RCW 41.56.150,

“[i]t shall be an unfair labor practice for a bargaining representative” to “induce

the public employer to commit an unfair labor practice” or “[t]o refuse to engage

in collective bargaining.” While RCW 41.56.150 lists four possible ways to

commit an unfair labor practice, the District only sought relief under (2) and (4),

respectively. “Parties to a CBA must bargain in good faith on mandatory issues,”

including, “‘[w]ages, hours, and other terms and conditions of employment.’”

Yakima County v. Yakima County Law Enforcement Officers’ Guild, 174 Wn.

App. 171, 182, 297 P.3d 745 (2013) (quoting Klauder v. San Juan County Deputy

Sheriffs’ Guild, 107 Wn.2d 338, 341, 728 P.2d 1044 (1986)).

The District argues that WSNA encouraged nurses to abandon a “past

practice” without bargaining, and therefore unilaterally changed a mandatory

subject of bargaining. The District also alleges that if it were to unilaterally

change meal periods, “WSNA would make an unfair labor practice charge.” The

District cites no authority for the contention that providing an opinion on a term of

the CBA “unilaterally changes” a mandatory bargaining subject. Even taking the

District’s allegations as true, there is no assertion in the complaint that WSNA

refused to bargain.

Next, the District provides only a cursory discussion of RCW 41.56.150(2),

to argue that WSNA induced it to commit an unfair labor practice. It states, in

-12- No. 83750-8-I/13

one sentence in a paragraph about RCW 41.56.150(4), that if it were to adopt

WSNA’s interpretation of the CBA and change shifts to accommodate meal

periods, “WSNA would make an unfair labor practice charge against the District.”

The District’s complaint states only that “[c]ompliance with WSNA’s stated

position would cause the District to commit an unfair labor practice.” While this

court assumes the truth of the factual allegations under a 12(b)(6) standard of

review, no such deference is required the legal conclusions of a plaintiff. Feyen

v. Spokane Teachers Credit Union, __ Wn. App. 2d. __, 515 P.3d 996, 1003

(2022). Without more, the District failed to demonstrate it was induced to commit

an unfair labor practice, and dismissal of this cause of action was proper.

Affirmed.10

WE CONCUR:

10 Because we affirm the dismissal based on these issues, we need not reach the parties’

arguments regarding collateral estoppel.

-13-