IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DEBRA PUGH, AARON BOWMAN and FLOANN BAUTISTA on their own behalfand on behalfof all persons similarly situated, Respondents,

v. EVERGREEN HOSPITAL MEDICAL CENTER a/k/a KING COUNTY PUBLIC HOSPITAL DISTRICT NO. 2, Appellant,
WASHINGTON STATE NURSES ASSOCIATION, Appellant. No. 68651-8-1
DIVISION ONE PUBLISHED OPINION

FILED: October 28, 2013 cr. o
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Grosse, J - A union has standing to sue in its associational capacityfor injunctive relief and back pay for missed rest breaks incurred by its members when, as here, 

### damages can be established without requiring the participation of the individual union members. Thus, the trial court erred by invalidating a settlement agreement between the union and the employer based on the union's lack of standing. Accordingly, we

reverse. FACTS 

### The Washington State Nurses Association (WSNA) appeals from the same trial 

### courtorders addressedin thelinked appeal broughtby Evergreen Hospital.1 Thus, the procedural and substantive facts are identical to those set forth in the opinion for the
1 Puqh v. Evergreen Hospital and Wash. State Nurses Ass'n, No. 68550-3-I (Wash. Ct. App. October28, 2013).No. 68651-8-1/2 Evergreen appeal. Accordingly, for efficiency for they will not be repeated here but will be incorporated by reference as they are necessary to the analysis.
ANALYSIS WSNA contends that the trial court erred by concluding that WSNA lacked standing to sue Evergreen and invalidating the settlement agreement on that basis. 

### We agree. An association has standing to sue on behalf of its members when the 

### following criteria are satisfied: (1) the members of the organization would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to 

### protect are germaneto its purpose; and (3) neither claim requires the participation of the 

### organization's individual members.2 Unlike a suit for injunctive relief which generally benefits every member of an 

### employee associationequally, a suitfor monetary reliefmayinvolve varying amounts of 

### damages among employee members.3 Thus, in a suit for money damages, thethird requirement has been interpreted to permit associational standing when "anindividual association member's participation is not necessary to prove the damages that are 

### asserted onbehalfof the members by the association."4 This isestablished when the record shows thatthe amount ofmonetary reliefrequested on behalfofeach employee 

## iscertain, easilyascertainable, andwithinthedefendant'sknowledge.5

2 International Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 213-14, 45 P.3d 186(2002). 3Spokane Airports, 146Wn.2d at 214. 4SpokaneAirports, 146 Wn.2d at 216. 5Spokane Airports, 146 Wn.2d at 216. 2No. 68651-8-1/3 

### In Teamsters LocalUnion No. 117 v. Departmentof Corrections (DOC),6 we held that a union representing prison emergency response team members had associational standing to sue DOC for recovery of wages for time spent on call while off duty. We concluded that the amount of wages sought was both easily ascertainable and within 

### the employer's knowledge because the employees carried pagers when off duty and wages could be calculated by subtracting time for regular shifts, overtime, on leave, or official standby. More importantly, we concluded that standing is not defeated simply because individual association members may be called as witnesses: 

### [The employer] confuses participation as witnesses with participation as necessary parties to ascertain damages. The employees are not 

### necessary parties; neither are they indispensable parties. Here, the calculation ofdamages does not require individualdetermination and the 

### liability issues, though of a factual nature, are common to all. We refuse to adopt [the employer's] position that participation of an individual member as a witness abrogates the Union's standing to prosecute the 

### employeeswageclaims.171 Here, the trial court concluded that WSNA lacked standing because the third requirementwas not met: Spokane Airports holds that the union's standing to sue on an 

### associational basis violates the third requirement unless "the amount of 

### monetary damages sought on behalf ofthose members is certain, easily ascertainable, and within the knowledge of the defendant." 146 Wn.2d at 215-16. In Spokane Airports, the amounts due were withholdings for 

### Social Security and employer matched funds, which were calculated exactly and were clearly known to the Spokane airport. [146 Wn.2d] at 217. In a similar case involving Special Emergency Response Team 

### (SERT) employees at a prison seeking compensation for theiron-calltime, the Court of Appeals found standing for the union where calculating 

### possible damages, "will then be nothing more than a mathematical exercise." Teamsters Local Union No. 117, 145 Wn. App. at 513.

6 145Wn. App. 507,187 P.3d 754 (2008). 

### 7 Teamsters Local Union No. 117, 145 Wn. App. at 513-14 (footnote and citation omitted). 3No. 68651-8-1/4 No such easily ascertainable amount of damages can be found here. The parties disagree vehemently as to even the possible amount of damages in this case. Plaintiffs assert that WSNA previously calculated the amount owed to the nurse was over $1 million dollars, and that Evergreen estimated the amount due as approximately $600,000, although Evergreen contests the basis and accuracy of this amount. Further, all parties agree that nurses in different sections ofthe hospital missed breaks at various rates. Unlike Spokane Airports and Teamsters Local Union No. 117, all parties agree there are no records from which Evergreen can precisely determine the amount owed. Under these circumstances, it is clear that WSNA would require the participation of at least some ofthe registered nurses who work at Evergreen Hospital. We disagree withthe trial court. First, the fact thatthe parties disagree aboutthe 

### amount ofdamages does not mean that there is no ascertainable amount ofdamages and WSNA is thereby prevented from establishing damages for purposes ofstanding. Rather, WSNA need only show that itwas prepared to establish damages that did not 

### require participation of the individual members. Indeed, WSNA and Evergreen considered various damages calculations and in fact determined damages owed to the 

### nurses for the settlement agreementwithout requiring the participation of the individual nurses.8 Nor is the absence of records fatal to establishing WSNA's standing. Our courts 

### have recognized that in wage and hour cases where employers have failed to keep 

### adequate records, damages may be established by "just and reasonable inference." Such inferences can be established by "representative testimony," as in McLaughlin v.



### 8Eg^, they used thenumberofhoursworked per week over theallegedtimeperiod, the hourly rate, and the number of breaks towhich they were entitled. 9Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S. Ct. 1187, 90 L. Ed. 1515(1946). 4No. 68651-8-1/5 

### Ho FatSeto,10where the Ninth Circuit upheld thelowercourt's inference of aviolation involving 28 employees based on the testimony of five witnesses. Similarly here, representative testimony from each department could serve as proof ofthe damages. As in Teamsters Local Union No. 117, the participation of some nurses to establish 

### damages doesnotabrogatetheunion's standingtoprosecute suchcases.11 Additionally, the trial court's ruling disregards the fact that WSNA's lawsuit also 

### sought injunctive relief, which does not require proof of individualdamages. As WSNA correctly notes, the trialcourt's assertion that "Washington law is clearthat a union may onlyrepresent its membership on a claim fordamages and not for injunctiverelief," is in
error. As discussed above, our courts have recognized that associational standing to


### sue for injunctive relief is more easily established than standing to sue for monetary 

### damages because it generally benefits members of an employee association equally. Because WSNA had standing to sue, the trial court's ruling invalidating the settlement agreementfor WSNA's lack of standing is without basis. Accordingly, we reverse. WSNAalso contends, as does Evergreen, thatthe trial court erred by invalidating 

### the settlement agreement on the basis that the settlement was not court approved under CR 23(e), and byinvalidating the individual settlements and releases entered into 

### by WSNA members. As we conclude in our opinion in Evergreen's appeal, these arguments have merit and thetrial court erred byinvalidating the settlements on these

10 850 F.2d 586, 589 (9thCir. 1988),cert,denied. 488 U.S. 1040, 109S. Ct. 864, 102L. Ed. 2d 988 (1989). 

### 11 See 145Wn. App. at 513-14. 12 See Spokane Airports. 146 Wn.2d at 214.No. 68651-8-1/6 

### bases.13 Accordingly, we reverse thetrial court's ordergranting summaryjudgmentfor Pugh and remand for reinstatement ofthe settlement agreement.
We reverse and remand.

WE CONCUR:



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13 See Evergreen, No. 68550-3-I, slip op. at 12. 6