Bravo v. Dolsen Companies, 12600-5-III

• Citation: 862 P.2d 623,71 Wn.App. 769
• Decision Date: 30 November 1993
• Docket Number: No. 12600-5-III,12600-5-III
• Court: Court of Appeals of Washington
• Parties: , 145 L.R.R.M. (BNA) 2148 Jose Israel BRAVO, Jose Francisco Bravo, Israel Rios, Juan Tapia, Enrique Almaguer, Carlos Verduzco, Refugio Lara, Miguel Duarte, Jesus Arenas, and Silverio Tapia, Appellants, v. The DOLSEN COMPANIES, d/b/a the Cow Palace, Respondent. Division 3

Page 769

71 Wn.App. 769

862 P.2d 623, 145 L.R.R.M. (BNA) 2148

Jose Israel BRAVO, Jose Francisco Bravo, Israel Rios, Juan Tapia, Enrique Almaguer, Carlos Verduzco, Refugio Lara, Miguel Duarte, Jesus Arenas, and Silverio Tapia, Appellants, v. The DOLSEN COMPANIES, d/b/a the Cow Palace, Respondent.

No. 12600-5-III.

Court of Appeals of Washington,

Division 3.

Nov. 30, 1993.

Reconsideration and Clarification Denied Jan. 3, 1994.

Daniel Ford, Evergreen Legal Services, Seattle, for appellants.

Gary E. Lofland, Lofland & Associates and Walter G. Meyer, Meyer, Fluegge & Tenney, Yakima, for respondent.

THOMPSON, Chief Judge.

Jose Israel Bravo and nine other agricultural laborers appeal the CR 12(b)(6) dismissal of their claims for (1) interference with concerted activities for purposes of collective bargaining under RCW 49.32.020, and (2) wrongful discharge contrary to a clear mandate of public policy. We affirm.

Mr. Bravo and several of his co-workers (the workers) were not happy with their wages and working conditions at the Cow Palace Dairy in Granger, Washington, so they went on strike. Unfortunately, The Dolsen Companies (Dolsen) which owned and operated the Cow Palace Dairy, simply hired replacement workers, and the workers found themselves unemployed. They applied for reinstatement, were denied, and filed this action.

All of the plaintiff workers were employed as milkers at the Cow Palace Dairy. Refugio Lara was a milker and crew leader. In late June or early July 1990, Cow Palace employee representatives contacted Dolsen to negotiate wages, benefits, and working conditions. They wanted to discuss better treatment from managers, increased pay, expanded medical coverage, and the denial of lunch and rest breaks. Dolsen refused to discuss these issues with the representatives.

On July 6, 1990, the workers went on strike to press for better terms and working conditions. That day, shortly after the workers set up a picket line, Mr. Bravo and the other workers in his shift (3:30 p.m. to 11:30 p.m.) were told by Willy Van de Graaf, a manager, that anyone who failed to show up for his shift was fired. Mr. Van de Graaf announced he had already lined up replacements, then went to the company punch clock while workers looked on, grabbed all time cards belonging to the strikers, and took them to the company office.

While performing their shift duties later that day, Mr. Bravo and his co-workers heard Victor Sanchez, a Dolsen supervisor, repeatedly say that anyone going on strike and failing to show up for work was already fired. Mr. Van de Graaf, a Dolsen manager, videotaped workers on the picket line near the Cow Palace even though there was no evidence of misconduct on the line.

After the strike, Dolsen refused to reinstate strikers who asked to return to available work. These included Mr. Bravo, Jose F. Bravo, Refugio Lara, Carlos Verduzco, Miguel Duarte, and Silverio Tapia. Dolsen's refusal was based on the workers' participation in the strike. Dolsen failed to offer reinstatement to the plaintiff workers when vacancies occurred after the strike, and it discouraged strikers, including the plaintiffs, from seeking reemployment.

In March 1992, the plaintiff workers filed a second amended complaint in Yakima County Superior Court seeking injunctive relief and damages, contending that Dolsen was liable for violations of RCW 49.32.020 and for the tort of wrongful discharge. On July 2, 1992, Judge Michael Leavitt entered an order granting Dolsen's CR 12(b)(6) motion to dismiss the complaint, and on August 13, 1992, he entered an amended order of dismissal which identified the documents relied on in making the judgment. This appeal timely followed.

The appellate court reviews de novo a trial court's dismissal of a complaint under CR 12(b)(6). Hoffer v. State, 110 Wash.2d 415, 420, 755 P.2d 781 (1988). Dismissal under CR 12(b)(6) is warranted only if " ' "it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief." ' " Hoffer, 110 Wash.2d at 420, 755 P.2d 781 (quoting Orwick v. Seattle, 103 Wash.2d 249, 254, 692 P.2d 793 (1984)).

Before considering the merits of the workers' complaint, we consider Dolsen's contention that this court lacks jurisdiction to hear the case at all. A party or the appellate court may raise at any time the question of appellate court jurisdiction. RAP 2.5(a); In re Saltis, 94 Wash.2d 889, 893, 621 P.2d 716 (1980). See State ex rel. Gunning v. Odell, 58 Wash.2d 275, 277, 362 P.2d 254 (1961), modified on other grounds, 60 Wash.2d 895, 371 P.2d 632 (1962).

As a general rule, the National Labor Relations Act (NLRA) grants exclusive jurisdiction over labor disputes to the National Labor Relations Board (NLRB) and preempts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the NLRA. Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971); San Diego Bldg. Trades Coun. v. Garmon, 359 U.S. 236, 242-45, 79 S.Ct. 773, 778-80, 3 L.Ed.2d 775 (1959); Hotel Employees, Local 8 v. Jensen, 51 Wash.App. 676, 679, 754 P.2d 1277 (1988).

However, preemption is inappropriate when the conduct at issue is only a peripheral federal concern under the NLRA or if it involves a significant state interest that so heavily outweighs the NLRB's interest in maintaining exclusive jurisdiction that a legislative intent to preclude the state's power cannot be inferred. Sears, Roebuck & Co. v. San Diego Cy. Dist. Coun. of Carpenters, 436 U.S. 180, 197, 98 S.Ct. 1745, 1757, 56 L.Ed.2d 209 (1978); Hotel Employees, 51 Wash.App. at 679-80, 754 P.2d 1277. Preemption of state jurisdiction over a class of cases depends on the nature of the particular interest being asserted and its effect on the administration of national labor policies. Sears, Roebuck & Co., 436 U.S. at 188-89, 98 S.Ct. at 1753-54; Hotel Employees, 51 Wash.App. at 679, 754 P.2d 1277. For example, the fact that a certain class of conduct falls within the NLRB's jurisdiction does not necessarily preclude a common-law tort action in state court. Baun v. Lumber & Sawmill Workers, Local 2740, 46 Wash.2d 645, 653, 284 P.2d 275 (1955). Similarly, the parties' status is material to determining preemption; only parties classified as employers, employees, or labor organizations are subject to the NLRA and the jurisdiction of the NLRB. Hotel Employees, 51 Wash.App. at 685-86, 754 P.2d 1277.

Agricultural laborers are not subject to the NLRB's jurisdiction because they are explicitly excluded from the NLRA's definition of employee. 29 U.S.C. § 152(3); Willmar Poultry Co. v. Jones, 430 F.Supp. 573, 577 (D.Minn.1977). Dairy workers are included in the definition of agricultural laborers. 29 U.S.C. § 203(f); Farmers Reservoir & Irrig. Co. v. McComb, 337 U.S. 755, 759, 69 S.Ct. 1274, 1277, 93 L.Ed. 1672 (1949); NLRB v. Karl's Farm Dairy, Inc., 570 F.2d 903, 905 (10th Cir.1978). Therefore, since Mr. Bravo and his co-workers are agricultural laborers, they fall outside the NLRB's jurisdiction, and their claims are not preempted by the NLRA. Moreover, their claims for the tort of wrongful discharge are, on independent grounds, not subject to preemption.

Although agricultural laborers fall outside the exclusive jurisdiction of the NLRB, their status under state law is unclear Washington has never adopted a comprehensive labor-management relations statute or established such an agency. Thus, the no man's land persists between federal jurisdiction on the one side and the state's common-law jurisdiction on the other--vague, ill-defined and necessarily uncertain.

Krystad v. Lau, 65 Wash.2d 827, 832, 400 P.2d 72 (1965).

The workers first argue that the implied cause of action under RCW 49.32.020, part of Washington's little Norris-LaGuardia Act, is applicable in their situation. They are mistaken. Under the general common law rule with regard to employment contracts of indefinite duration, either the employer or the employee may terminate the contract at will. Dicomes v. State, 113 Wash.2d 612, 617, 782 P.2d 1002 (1989); Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 894, 568 P.2d 764 (1977); Krystad, 65 Wash.2d at 846, 400 P.2d 72.

In Krystad, 65 Wash.2d at 845-46, 400 P.2d 72, Washington recognized an exception to this general rule--and implied a cause of action based on RCW 49.32.020, ¹ which reads in pertinent part:

In the interpretation of this chapter ... the public policy of the state of Washington is hereby declared as follows:

... the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor ... wherefore, ... it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections:

. . . . .

(Italics ours.)

The Krystad implied cause of action, based on RCW 49.32.020, contains two components: (1) discharge of an employee (2) because of membership in and activities for a labor union.

We reach our conclusion ... that respondents' actions in discharging their employees because of their membership in and activities for a labor union contravene the expressly declared public policy of this state.

.... It follows, then, and we therefore conclude that ... (RCW 49.32.020), the little Norris-LaGuardia Act, in expressly declaring the public policy of this state, conferred actionable rights on employees, among which rights were that they be free from coercion, interference and...