Appendix — Fluor Hanford, Inc. v. Brundridge

APPENDIX -

TABLE OF CONTENTS

Page

Opinion of the Washington Court of Appeals,

Ee re re la

Order of the Washington Supreme Court

Denying Petition for Review,

EES eae eer or ae l4a

Order Granting Defendants’ Motion to Dismiss

or in the Alternative to Stay this Action,

ee ie ed eeu nian s ace oe l6a

mate,

pre Wires one

APPENDIX A

IN THE COURT OF APPEALS OF THE STATE OF

WASHINGTON

SCOTT BRUNDRIDGE, DONALD __)No. 20157-1-IIl

HODGIN, JESSIE JAMES, CLYDE )

KILLEN, PEDRO NICACIO, SHANE )

O’LEARY, RAYMOND RICHARD-_)

SON, JAMES STULL, RANDALL ) Division Three

WALLI, DAVID FAUBION, AND ) Panel Six

CHARLES CABLE, )

)

Appellants, )

)

V. ) PUBLISHED

) OPINION

FLUOR FEDERAL SERVICES

Inc. (formerly, FLUOR DANIEL

NORTHWEST, INC.), a Washington

Corporation, FLUOR HANFORD,

INC., (formerly, FLUOR DANIEL

HANFORD, INC.), a Washington

Corporation,

Respondents,

JERRY NICHOLS, an individual

and his marital community, DAVID

FOUCAULT, an individual and his

marital community, AND JIM

HOLLADAY, an individual and his

marital community,

Nm ee ee ee eee ee ee See”

Defendants. ) FILED

) December 4, 2001

SCHULTHEIS, J. — We are concerned today with federal

preemption of a state-law claim filed by workers who were

2a

parties to a collective bargaining agreement. In a recent

decision, the United States Supreme Court held that the Federal

Arbitration Act, 9 U.S.C. §§ 1 to 16, requires enforcement of

arbitration clauses in employment contracts, subject to certain

exceptions. Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001). The 11 appellants

here' were union pipe fitters working at the Hanford nuclear

weapons facility as employees of Fluor Daniel Northwest, Inc.

In 1999, they filed a complaint against Fluor Federal Services,

Inc. and Fluor Hanford, Inc. (collectively referred to herein as

“Fluor”),’ and three administrative employees of Fluor. They

alleged they were wrongfully terminated in retaliation for their

whistleblowing activities. Before trial, Fluor moved for

dismissal and a remand for arbitration. Based on Circuit City,

the trial court granted Fluor’s motion, but stayed the order

pending review by this court.

On appeal, the pipe fitters contend the decision in Circuit

City does not apply to collective bargaining agreements and at

any rate does not apply to the arbitration provision at issue

‘here. Additionally, the pipe fitters argue that Fluor is

collaterally estopped from raising the issue of federal

preemption based on § 301 of the Labor Management Relations

Act, 1947 (29 U.S.C. § 185(a)), and contend state court

jurisdiction over this case is not preempted by the National

Labor Relations Act (29 U.S.C. §§ 157, 158). We find that the

' The 11 appellants are: Scott Brundridge, Donald Hodgin, Jessie Jaymes

(we note that Ms. Jaymes’s name was incorrectly spelled in the complaint),

Clyde Killen, Pedro Nicacio, Shane O’Leary, Raymond Richardson, James

Stull, Randall Walli, David Faubion, and Charles Cable.

? Fluor Daniel Northwest, Inc. is now called Fluor Federal Services, Inc.

The prime contractor that operates the Hanford facility for the Department

of Energy is Fluor Hanford, Inc. (formerly Fluor Daniel Hanford, Inc.), a

wholly owned subsidiary of Fluor, Inc. (formerly Fluor Hanford, Inc.).

Fluor Daniel Northwest, a sister corporation of Fluor Hanford, served as a

construction subcontractor to Fluor Hanford and other contractors at the

Hanford site.

3a

arbitration provision in the pipe fitters’ collective bargaining

agreement does not mandate arbitration for a claim of wrongful

discharge in violation of public policy. We further find no

federal preemption. Accordingly, we reverse and remand for

trial.

FACTS

Because this is an appeal of a trial court’s grant of a motion

to dismiss, we review de novo, drawing all inferences from the

facts in favor of the plaintiffs. Jn re Estate of Peterson, 102

Wn. App. 456, 462, 9 P.3d 845 (2000), review denied, 142

Wn.2d 1021 (2001). According to the evidence presented by

the pipe fitters, all were members of the United Association of

Journeymen and Apprentices of the Plumbing and Pipe Fitting

Industry of the United States and Canada, Local No. 598. As

union members, they were parties to a collective bargaining

agreement (CBA) that included a grievance procedure

requiring binding arbitration for any disputes arising “out of

the interpretation or application of this AGREEMENT.”

Clerk’s Papers (CP) at 171.

In late May 1997, five of the pipe fitters refused to install

valves on a pipeline running through a nuclear waste facility

because they believed the valves were underrated for the

degree of pressure that would be placed on them. Higher rated

valves were soon provided, and the five pipe fitters installed

them. A few days later, the five, along with two other

crewmembers, were laid off. After the pipe fitters were laid

off, several other pipe fitters vocally supported the terminated

workers. These pipe fitters lost their jobs in March and April

1998 and May 2000.

In June 1997, the union filed a grievance pursuant to the

CBA protesting the layoffs of the first pipe fitters, but then

withdrew the grievance in early February 1998 for lack of

evidence that the CBA had been violated. The first laid-off

pipe fitters were reinstated in March 1998, but they were again

laid off in October and November 1998. All of the pipe fitters

eo

4a

filed complaints with the Department of Labor, alleging that

Fluor had retaliated against them in violation of the

whistleblower protection provisions of the Energy

Reorganization Act, 42 U.S.C. § 5851. In March 2000,

however, they dismissed their administrative claims. They had

filed suit in state court in 1999 for wrongful discharge in

violation of public policy and for civil conspiracy. Eventually

all of the appellants joined this lawsuit.

Fluor filed a notice of removal of civil action to United

States District Court in August 1999, asserting federal

jurisdiction under § 301 of the Labor Management Relations

Act, 29. U.S.C. § 185. After reviewing the pipe fitters’

complaint, the district court judge found that the claims did not

require interpretation of the terms of the CBA and therefore

were not preempted by § 301. Additionally finding that the

plaintiffs’ complaint did not assert a federal law claim and did

not rest solely on federal public policies, the district court

granted the plaintiffs’ motion to remand to state court.’ The

civil conspiracy claim was dismissed on summary judgment ir

September 2000.* After extensive discovery and delay, trial

was set to begin in May 2001.

In March 2001, the United States Supreme Court decided

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S. Ct.

1302, 149 L. Ed. 2d 234 (2001), which concluded that the

Federal Arbitration Act, 9 U.S.C. §§ 1 to 16, requires the

enforcement of arbitration clauses in employment contracts

other than the contracts of transportation workers. This

decision overruled previous Ninth Circuit authority. Circuit

City, 121 S. Ct. at 1306, 1311. On the basis of Circuit City,

> The pipe fitters’ motion to take judicial notice of documents filed in the

removal proceedings is granted.

* After the elimination of the civil conspiracy claim, Fluor Hanford was

dismissed as a party. The remaining claim for wrongful discharge is

directed solely at Fluor Daniel Northwest, Inc., now known as Fluor Federal

Services, Inc.

5a

Fluor moved in April to dismiss or to stay the action in favor

of arbitration. After a hearing on May 3, 2001, the trial court

granted the motion from the bench, staying the case pending

appeal to this court.

APPLICATION OF THE FEDERAL ARBITRATION ACT

AFTER CIRCUIT CITY

The purpose of the Federal Arbitration Act (FAA) is to

overcome the courts’ historical reluctance to enforce

agreements to arbitrate. Allied-Bruce Terminix Cos., Inc. v.

Dobson, 513 U.S. 265, 270, 115 S. Ct. 834, 130 L. Ed. 2d 753

(1995). To achieve this purpose, the FAA compels judicial

enforcement of a wide range of arbitration agreements. 9

U.S.C. § 2; Circuit City, 121 S. Ct. at 1307. However, § 1 of

the FAA excludes from the act’s coverage “contracts of

employment of seamen, railroad employees, or any other class

of workers engaged in foreign or interstate commerce.” 9

U.S.C.A. § 1 (West 1999).

Prior to the decision in Circuit City, most federal courts of

appeal held that this exception was limited to written

arbitration agreements involving transportation workers. Only

the Ninth Circuit interpreted the § 1 exception to exclude all

contracts of employment from the reach of the FAA. Circuit

City, 121 S. Ct. at 1307. Circuit City laid the issue to rest by

holding that § 1 exempts from the FAA only contracts of

employment of transportation workers. /d. at 1311. The

employment agreement in Circuit City was an individual

contract and the application of the FAA was in federal court.

In dicta, the court referred to its earlier decisions in Southland

Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1

(1984) and Allied-Bruce as enduring authority for the rule that

the FAA applies as well in state courts and preempts state

antiarbitration laws to the contrary. Circuit City, 121 S. Ct. at

1312-13.

The pipe fitters argue here that although Circuit City and the

FAA apply to employment contracts entered into by

NR name RIC STEEDS eA MEL ane m anne er yO RNURUERS

lle

6a

individuals, they do not apply to union-negotiated CBAs. But

the very case cited for this assertion, Pryner v. Tractor Supply

Co., 109 F.3d 354, 357 (7th Cir. 1997), concludes after

reviewing numerous court decisions that the FAA is generally

applicable to CBAs. See also Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20, 34, 111 S. Ct. 1647, 114 L. Ed. 2d 26

(1991) (discussing the application of the FAA to a collective

bargaining agreement arbitration clause in Alexander v.

Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d

147 (1974)). We conclude as a matter of law that the FAA is

applicable to the CBA in the present case. What remains is to

determine whether the arbitration clause in the pipe fitters’

CBA waives their rights to a judicial forum for the state-law

claim.

Collective bargaining agreements, while beneficial in many

respects to both the worker and the employer, may be less than

optimum in meeting the individual needs of particular workers.

With collective bargaining arbitration, the interests of the

individual may be subordinated to the collective interests of all

employees. Gilmer, 500 U.S. at 34. In recognition of that

inherent tension, federal courts have established that an

arbitration clause in a CBA will not waive an employee’s night

to a judicial forum unless such a waiver is clear and

unmistakable. Wright v. Universal Maritime Serv. Corp., 525

U.S. 70, 79-80, 119 S. Ct. 391, 142 L. Ed. 2d 361 (1998) (right

to a federal forum); Safrit v. Cone Mills Corp., 248 F.3d 306,

308 (4th Cir.) (right to federal forum), cert. denied, 122 S.Ct.

464 (2001). .

A clear and unmistakable waiver of the right to a judicial

forum can occur in two ways. Safrit, 248 F.3d at 308. First,

the CBA may contain an explicit arbitration clause wherein the

parties agree to submit all causes of action arising out of

employment to arbitration. Jd. Second, the agreement may

have a general clause requiring arbitration under the

employment agreement, coupled with a provision that makes

it unmistakably clear that the statutes that are the basis for the

7a

asserted claims (e.g., discrimination statutes, occupational

health and safety statutes, and whistleblowing statutes) are part

of the agreement. /d. Further, in determining whether a

particular claim is covered by an arbitration clause, it must be

remembered that a labor arbitrator has authority solely to

resolve questions of contractual rights, not to invoke public

laws that conflict with the bargain between the parties. Gilmer,

500 US. at 34.

In this case, the CBA grievance procedure requires binding

arbitration for any disputes “aris[ing] out of the interpretation

or application of this AGREEMENT{[.]” CP at 171. As we

shall see below, the pipe fitters’ claim for wrongful discharge

in violation of public policy does not require interpretation or

application of any term in the agreement. Fluor cites no

provision. in the CBA wherein health and safety or

whistleblowing statutes have been explicitly incorporated. See

Rogers v. N.Y. Univ., 220 F.3d 73, 76 (2nd Cir.)

(discrimination claims), cert. denied, 531 U.S. 1036 (2000).

Further, this boilerplate arbitration provision is not sufficiently

specific: it does not clearly and unmistakably waive the right

to a judicial forum for tort claims arising independently of the

CBA. Because the CBA does not contain a clear and

unmistakable waiver of the pipe fitters’ rights to a judicial

forum for state-law claims, the trial court erred in dismissing

the action and in remanding it for arbitration.

The pipe fitters additionally claim that Fluor waived its right

to compel arbitration because it knew long before Circuit City

that the Ninth Circuit had applied the FAA to compel

arbitration of Title VII’ employment claims. They also contend

that Fluor did not bring this matter to arbitration in a timely

manner. Waiver of a contractual right is disfavored and the

party seeking waiver bears a heavy burden of persuasion.

Steele v. Lundgren, 85 Wn. App. 845, 852, 935 P.2d 671

5 Title VII of the Civil Rights Act of 1964, codified as 42 U.S.C.

§ 2000e-3(a).

8a

(1997). To prove waiver of a night to arbitrate, a party must

demonstrate that the other party knew of a right to compel

arbitration, acted inconsistently with that nght, and that

prejudice has occurred. Jd. at 849. Before Circuit City, the

Ninth Circuit decided in Craft v. Campbell Soup Co., 177 F.3d

1083 (9th Cir. 1998) that the FAA did not apply to labor or

employment contracts. The pipe fitters filed their lawsuit in

1999, after the decision in Craft and before Circuit City.

Although they had pursued various administrative remedies

before that time, they have not shown with any particularity

when the right to compel arbitration should have attached

during those negotiations. Accordingly, the trial court did not

err in finding that Fluor did not waive its night to compel

arbitration under the CBA.

FEDERAL PREEMPTION UNDER THE LABOR MANAGEMENT

RELATIONS ACT AND THE NATIONAL LABOR RELATIONS ACT

Noting that this court may affirm on any basis supported by

the record,° Fluor raises two additional arguments to affirm the

trial court’s decision. Both involve subject matter jurisdiction,

and therefore may be addressed on appeal even though they

were not raised in superior court. RAP 2.5(a)(1); Harting v.

Barton, 101 Wn. App. 954, 960, 6 P.3d 91 (2000), review

denied, 142 Wn.2d 1019 (2001). Jurisdiction is a question of

law reviewed de novo. Local Union I-369, Oil, Chemical &

Atomic Workers Int’l Union v. Sandvik Special Metals Corp.,

102 Wn. App. 764, 770, 10 P.3d 470 (2000), review denied,

143 Wn.2d 1006 (2001).

I. Section 301 of the Labor Management Relations Act. In

the first of these jurisdictional arguments, Fluor contends the

pipe fitters’ claim is preempted by § 301 of the Labor

Management Relations Act (LMRA), 29 U.S.C. § 185(a).

Pursuant to 301, federal law exclusively governs suits requiring

interpretation of the terms of a CBA. Caterpillar Inc. v.

° Backlund v. Univ. of Wash., 137 Wn.2d 651, 670, 975 P.2d 950 (1999).

9a

Williams, 482 U.S. 386, 394, 107 S. Ct. 2425, 96 L. Ed. 2d 318

(1987). State-law claims are preempted by § 301 if they are

“substantially dependent” on the analysis of a CBA. Jd

However, the bare fact that a bargaining agreement will be

consulted during state-law litigation will not extinguish the

claim. Sprewell v. Golden State Warriors, 266 F.3d 979, 990

(9th Cir. 2001). Moreover, a state-law claim is not preempted

_ merely because a defense is raised based on the terms of a

CBA. Id. a

The pipe fitters’ claim of wrongful termination in violation

of public policy implicates a nonnegotiable right and

consequently is. not preempted by federal law. Huntley v.

Frito-Lay, Inc., 96 Wn. App. 398, 401, 979 P.2d 488 (1999),

cert. denied, 531 U.S. 818 (2000); Wilson v. City of Monroe, 88

Wn. App. 113, 117-18, 943 P.2d 1134 (1997). Further, the

right does not arise from or depend on interpretation of the

CBA. Smith v. Bates Technical College, 139 Wn.2d 793, 803,

991 P.2d 1135 (2000). Because it is independent of the

contractual agreement between the pipe fitters’ union and

Fluor, a claim of wrongful termination in violation of public

policy is not subject to § 301 preemption. Jd.; Wilson, 88 Wn.

App. at 119.

In any event, Fluor is estopped from raising this issue

because it is identical to the issue Fluor raised in federal district

court when attempting to assert federal jurisdiction. Collateral

estoppel, also called issue preclusion, prevents relitigation of

an issue after a party has had a full and fair opportunity to

litigate it. Nielson v. Spanaway Gen. Med. Clinic, Inc., 135

Wn.2d 255, 262, 956 P.2d 312 (1998). The party asserting the

doctrine must show that (1) the issue decided in prior

adjudication is identical with the one currently raised; (2) the

prior adjudication ended in a final judgment on the merits; (3)

the party raising the issue was a party or in privity with a party

to the prior adjudication; and (4) application of the doctrine

would not work an injustice. Jd at 263; Spahi v.

10a

Hughes-Northwest, Inc., 107 Wn. App. 763, 774, 27 P.3d 1233,

33 P.3d 84 (2001).

Fluor contends it is not estopped from raising the issue of

§ 301 preemption because the federal district court was only

concermed with jurisdictional issues and did not decide the case

on its merits. True, but the issue is jurisdictional and the

district court entered a final judgment that concluded the pipe

fitters’ claim was not preempted by § 301. The § 301 issue

was identical in district court, the district court adjudication

ended in a final judgment on the merits of that action, Fluor

was a party to the action, and Fluor fails to show how

application of collateral estoppel would work an injustice here.

II. The National Labor Relations Act. In its second

jurisdictional attack, Fluor contends the National Labor

Relations Act (NLRA), 29 U.S.C. §§ 157 and 158, preempts

the application of Washington law to this controversy. The

NLRA establishes workers’ rights to organize and engage in

“concerted activities for the purpose of collective bargaining or

other mutual aid or protection[.]” 29 U.S.C.A § 157 (West

1998). The act further provides that it is unlawful for

employers to interfere with the exercise of those rights. 29

U.S.C. § 158. Usually the National Labor Relations Board

(NLRB) is given exclusive jurisdiction over controversies even

arguably involving unfair labor practices under the NLRA.

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236,

244-45, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959); Hume v. Am.

Disposal Co., 124 Wn.2d 656, 662, 880 P.2d 988 (1994).

However, two exceptions exist, for matters that “touch[]

interests . . . deeply rooted in local feeling and responsibility”

or where the regulated activity is merely a peripheral concern

of federal labor law. Garmon, 359 US. at 244.

The pipe fitters contend their joint claim and their attempts

to seek administrative redress for their wrongful termination do

not constitute “concerted activities’ under the NLRA.

Although the term “concerted activities” is not defined in the

NLRA, employees acting together and individuals acting as

lla

representatives of other employees are considered engaged in

concerted activities for the purposes of the NLRA. NLRB v.

Portland Airport Limousine Co., 163 F.3d 662, 665 (1st Cir.

1998). Because our concern is whether the actions of the pipe

fitters are “arguably” subject to the NLRA, we find it at least

arguable that the pipe fitters engaged in concerted activities for

mutual aid and protection in the pursuit of their claim.

Even so, however, the pipe fitters’ state-law claim for

wrongful discharge in violation of public policy touches

matters of clear local interest. In Hume, four former employees

brought an action alleging employer retaliation for assertion of

wage claims under RCW 49.46.100. The.court found that the

employer retaliation regulated by the statute touched a deeply

rooted local concern and therefore fell under the Garmon

exception. Hume, 124 Wn.2d at 664. As the court noted, the

NLRB inquiry would focus on whether the overtime wage

claims were protected concerted activity, while the state cause

of action focused instead on whether the employees were

discharged in retaliation for their overtime claims. Jd. at

664-65. Consequently, the state-law claim was different from

that which could have been, but was not, presented to the

NLRB. /d. at 665.

Washington has a substantial interest in regulating

discriminatory employment practices, and this regulation does

not threaten undue interference with federal labor law.

Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378

(1992) (citing Sears, Roebuck & Co. v. San Diego County Dist.

Council of Carpenters, 436 U.S. 180, 188, 98 S. Ct. 1745, 56

L. Ed. 2d 209 (1978)). Fluor argues that cases applying the

Garmon exception are based on state statutes and involve only

private sector workplaces, citing Hume; Delahunty;

Inter-Modal Rail Employees Ass'n v. Burlington N. & Santa Fe

Ry. Co., 73 Cal. App. 4th 918, 87 Cal. Rptr. 2d 60 (1999); and

Paige v. Henry J. Kaiser Co., 826 F.2d 857 (9th Cir. 1987).

These are distinctions without significance. We have already

established that no term of the CBA must be interpreted in the

12a

resolution of the pipe fitters’ claim. Further, the elements for

proving wrongful discharge in violation of public policy

include (1) existence of a clear public policy; (2) evidence that

discouraging the conduct in which the plaintiffs are engaged

would jeopardize the public policy; (3) proof that the

public-policy-linked conduct caused the dismissal; and (4) no

overriding justification for the dismissal. Ellis v. City of

Seattle, 142 Wn.2d 450, 459, 13 P.3d 1065 (2000). The clarity

element requires evidence that the employer’s conduct

contravened “‘the letter or purpose of a constitutional,

statutory, or regulatory provision or scheme.’” /d. (quoting

Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685

’ P.2d 1081 (1984)). In establishing their claim, the pipé fitters

will necessarily cite constitutional, statutory, and/or regulatory

laws evidencing Washington’s interest in protecting the health

and safety of its workers and citizens.

Ultimately, the claim of wrongful discharge in violation of

public policy is different from any claim that could have been ~

brought before the NLRB. The claim does not implicate

collective bargaining or unionization. See Inter-Modal, 87 Cal.

Rptr. 2d at 64. And the claimed violations of Washington’s

health and safety laws are not even arguably unfair labor

practices. Jd. Finally, Fluor’s alleged conduct in terminating

employees for refusing to install unsafe valves in a nuclear

waste facility, and in terminating employees who supported

those who refused to install the valves, clearly touches on

interests deeply rooted in local feeling and responsibility. Jd.

Consequently, the Garmon exceptions apply to prevent federal

preemption of the pipe fitters’ claim.

ATTORNEY FEES

The pipe fitters request attorney fees and costs on appeal.

Pursuant to RCW 49.48.030, a party who successfully recovers

judgment for wages or salary owed is entitled to reasonable

attorney fees assessed against the employer or former

employer. In this case, however, the pipe fitters have not yet

obtained a judgment for owed wages. See Cohn v. Dep’t of

13a

Corrs., 78 Wn. App. 63, 70, 895 P.2d 857 (1995).

Consequently, the request for attorney fees under this statute is

premature.

CONCLUSION

To summarize, we conclude that Circuit City and the FAA

generally apply to CBAs. However, we further conclude that

the FAA does not require arbitration in this case because the

arbitration clause does not clearly and unmistakably waive the

pipe fitters’ night to a judicial forum for their claim of wrongful

discharge in violation of public policy. We further hold that

federal jurisdiction under the LMRA and the NLRA does not

preempt this claim.

Reversed and remanded for trial.

/s/

Schultheis, J.

WE CONCUR:

/s/

Kurtz, C.J.

/s/

Sweeney, J.

l4a

APPENDIX B

THE SUPREME COURT OF WASHINGTON

SCOTT BRUNDRIDGE, DONALD

HODGIN, JESSIE JAMES, CLYDE

KILLEN, PEDRO NICACIO, SHANE

O’LEARY, RAYMOND RICHARD-

SON, JAMES STULL, RANDALL

WALLI, DAVID FAUBION, and

CHARLES CABLE,

Respondents,

V.

FLUOR FEDERAL SERVICES,

Inc. (formerly, FLUOR DANIEL

NORTHWEST, INC.), a Washington

Corporation, FLUOR HANFORD,

INC., (formerly, FLUOR DANIEL

HANFORD, INC.), a Washington

Corporation,

Petitioners,

JERRY NICHOLS, an individual

and his marital community, DAVID

FOUCAULT, an individual and his

marital community, AND JIM

HOLLADAY, an individual and his

marital community,

Defendants.

) No. 72254-4

)

JORDER

)

) C/A No. 20157-1-II]

ee ee ae ae a A a ae ae ee _ L444 444, 4

A Special Department of the Court (composed of Justices

Smith, Madsen, Ireland, Owens and Chief Justice Alexander)

15a

considered this matter at its August 7, 2002, Motion Calendar,

and unanimously agreed that the following order be entered.

IT IS ORDERED:

That the Petition for Review is denied.

DATED at Olympia, Washington this 7th day of August,

2002.

/s/ Gerry L. Alexander

CHIEF JUSTICE

16a

APPENDIX C

Hon. Carolyn A. Brown

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FOR BENTON COUNTY

SCOTT BRUNDRIDGE, etal. ) Case No. 99-2-01250-7

)

Plaintiffs, )

VS. ) ORDER GRANTING

) DEFENDANTS’

FLUOR DANIEL, INC., a ) MOTION TO DISMISS.

California Corporation, et al. ) ORIN THE ALTER-

) NATIVE TO STAY

Defendants. ) THIS ACTION

)

Defendants’ Motion to Dismiss came on for hearing on

May 3, 2001. Defendants were represented at the hearing by

William R. Squires Il of Summit Law Group, and the plaintiffs

by Dana L. Gold and John P. Sheridan of the Government

Accountability Project. The Court has reviewed the parties’

motion papers, including the declarations and accompanying

exhibits, and considered the arguments of counsel.

The Court finds that Circuit City Stores v. Adams, 2001

WL 273205 (2001) controls this case and requires that the

matter be arbitrated pursuant to the Federal Arbitration Act.

Based on the argument of counsel and the evidence

presented, the Court grants defendants’ Motion to Stay the

Proceedings pending the appeal of this ruling.

IT IS ORDERED.

Dated this 4th day of May 2001.

/s/ Carolyn A. Brown

Benton County Superior Court Judge

Carolyn Brown

17a

Presented by:

SUMMIT LAW GROUP PLLC

Attorneys for Defendants

By:

William R. Squires III], WSBA #04976

Lawrence C. Locker, WSBA #15819

GOVERNMENT ACCOUNTABILITY PROJECT

Attormeys for Plaintiffs

By: ___/s/

John P. Sheridan, WSBA #21473

Dana L. Gold, WSBA #25219