IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEBRA PUGH, AARON BOWMAN and

FLOANN BAUTISTA on their own

behalf and on behalf of 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

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Grosse, J - A union has standing to sue in its associational capacity for 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

court orders addressed in the linked appeal brought by 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. October 28, 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 germane to 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 association equally, a suit for monetary relief may involve varying amounts of

damages among employee members.3 Thus, in a suit for money damages, the third

requirement has been interpreted to permit associational standing when "an individual

association member's participation is not necessary to prove the damages that are

asserted on behalf of the members by the association."4 This is established when the

record shows that the amount of monetary relief requested on behalf of each employee

is certain, easily ascertainable, and within the defendant's knowledge.5

2 International Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207,

213-14, 45 P.3d 186(2002).

3 Spokane Airports, 146 Wn.2d at 214.

4 Spokane Airports, 146 Wn.2d at 216.

5 Spokane Airports, 146 Wn.2d at 216.

2
No. 68651-8-1/3

In Teamsters Local Union No. 117 v. Department of 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 of damages does not require individual determination 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

employees wage claims.171

Here, the trial court concluded that WSNA lacked standing because the third

requirement was 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 of those 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 their on-call time,

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.

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

7 Teamsters Local Union No. 117, 145 Wn. App. at 513-14 (footnote and citation

omitted).

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No. 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 of the 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 of the registered nurses who work at Evergreen Hospital.

We disagree with the trial court. First, the fact that the parties disagree about the

amount of damages does not mean that there is no ascertainable amount of damages

and WSNA is thereby prevented from establishing damages for purposes of standing.

Rather, WSNA need only show that it was 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 agreement without 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 the number of hours worked per week over the alleged time period, the

hourly rate, and the number of breaks to which they were entitled.

9 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S. Ct. 1187, 90 L. Ed.

1515(1946).

4
No. 68651-8-1/5

Ho Fat Seto,10 where the Ninth Circuit upheld the lower court's inference of a violation

involving 28 employees based on the testimony of five witnesses. Similarly here,

representative testimony from each department could serve as proof of the damages.

As in Teamsters Local Union No. 117, the participation of some nurses to establish

damages does not abrogate the union's standing to prosecute such cases.11

Additionally, the trial court's ruling disregards the fact that WSNA's lawsuit also

sought injunctive relief, which does not require proof of individual damages. As WSNA

correctly notes, the trial court's assertion that "Washington law is clear that a union may

only represent its membership on a claim for damages and not for injunctive relief," 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

agreement for WSNA's lack of standing is without basis. Accordingly, we reverse.

WSNA also contends, as does Evergreen, that the trial court erred by invalidating

the settlement agreement on the basis that the settlement was not court approved

under CR 23(e), and by invalidating 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 the trial court erred by invalidating the settlements on these

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

Ed. 2d 988 (1989).

11 See 145 Wn. App. at 513-14.

12 See Spokane Airports. 146 Wn.2d at 214.
No. 68651-8-1/6

bases.13 Accordingly, we reverse the trial court's order granting summary judgment for

Pugh and remand for reinstatement of the settlement agreement.

We reverse and remand.

WE CONCUR:

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

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