Bravo v. Dolsen Companies
| Decision Date | 26 January 1995 |
| Docket Number | No. 61437-7,61437-7 |
| Citation | 125 Wn.2d 745,888 P.2d 147 |
| Court | Washington Supreme Court |
| Parties | , 148 L.R.R.M. (BNA) 2538, 129 Lab.Cas. P 57,864 Jose Israel BRAVO, Jose Francisco Bravo, Israel Rios, Juan Tapia, Enrique Almaguer, Carlos Verduzco, Refugio Lara, Miguel Duarte, Jesus Arenas, and Silverio Tapia, Petitioners, v. The DOLSEN COMPANIES, d/b/a/ The Cow Palace, Respondent. |
Evergreen Legal Services, Daniel G. Ford, Seattle, Erik Kerzee, Sunnyside, for petitioners.
Lofland & Associates, Gary E. Lofland, Nancy R. Graber, Meyer, Fluegge & Tenney, Walter G. Meyer, Yakima, for respondent.
Martin Garfinkel, Seattle, amici curiae for petitioners on behalf of Washington State Ass'n of Churches, Washington State Catholic Conference, Washington State Labor Council, AFL-CIO and United Farm Workers of Washington.
Petitioners Jose Bravo and nine of his former co-workers appeal a Court of Appeals decision affirming the dismissal of their suit against their former employer, the Dolsen Companies (Dolsen). The suit was brought under RCW 49.32.020, which prohibits employers from interfering with, restraining or coercing employees in self-organization or other "concerted activities for the purpose of collective bargaining or other mutual aid or protections". We hold the term "concerted activities" encompasses the collective action of non-unionized employees.
Petitioners worked as milkers at Respondent's dairy in Granger, Washington. They allege that in early summer 1990, Petitioners' representatives attempted to negotiate with the Defendant for better wages, improved medical coverage, better treatment from supervisors, and lunch and rest breaks. On July 6, 1990, after Respondent refused to discuss these issues with the Petitioners' representatives, Petitioners went on strike for better working conditions.
Petitioners allege that on the first day of the strike, shortly after some strikers set up a picket line, one of the company's managers told a shift of workers that anyone who did not appear for the shift would be fired. That same day, a supervisor said that those who had failed to appear for work because they were participating in the strike were fired. Petitioners also allege that a manager videotaped workers on the picket line during the first day of the strike. They assert finally that Respondent terminated the employees who participated in the July 1990 strike and refused to reinstate former strikers who asked to return to work although jobs were available.
The Petitioners brought action against Dolsen and its agents for interfering with and restraining their rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protections" under RCW 49.32.020. They also claimed the tort of wrongful discharge in violation of the public policy enunciated in that statute.
The trial court granted Dolsen's CR 12(b)(6) motion to dismiss both the statutory and tort claims on the ground that non-unionized workers are not protected under RCW 49.32.020. Judge's Oral Ruling (June 12, 1992), at 2-3. That decision was affirmed by Division III of the Court of Appeals on November 30, 1993. Petitioners appeal that decision. We reverse.
The first question presented in this case is whether, as a procedural matter, the trial court erred in dismissing the employees' complaint under CR 12(b)(6), and whether the Court of Appeals erred in approving that dismissal on procedural grounds.
The trial court dismissed the employees' complaint on Dolsen's CR 12(b)(6) motion for failure to state a cause of action. When the workers appealed to the Court of Appeals, Dolsen argued for the first time that the complaint failed to state a claim because it did not specifically allege union involvement. Brief of Respondent, at 7, 10. In reply, the Plaintiffs explained that the "employee representatives" referred to in the complaint were, in fact, union representatives, and that a union was involved in the strike and picketing. Reply Br. of Appellants, at 10 n. 1.
The Court of Appeals affirmed the trial court's dismissal, holding that "[i]t is too late to allege an essential element of a defective complaint on appeal when the case has already been dismissed for failure to state a claim." Bravo v. Dolsen Companies, 71 Wash.App. 769, 777, 862 P.2d 623 (1993). The holding that the complaint was defective because it did not contain the word "union" is inconsistent with this court's CR 12(b)(6) jurisprudence.
Plaintiff's second amended complaint alleged in pertinent part:
1.1 Plaintiffs are dairy workers who bring this action against their former employer and its agents for defendants' interference with plaintiffs' concerted activity for better working conditions and defendants' wrongful termination of plaintiffs and retaliatory refusal to reinstate plaintiffs after plaintiffs participated in a strike for better working conditions.
1.2 Plaintiffs seek relief under Washington's Little Norris La Guardia Act, R.C.W. 49.32.020, which protects workers who engage in "self organization or in other concerted activities for the purpose of collective bargaining or for mutual aid or protections."
Clerk's Papers (Second Amended Complaint), at 34, 35.
A dismissal for failure to state a claim under CR 12(b)(6) is appropriate 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.' " Haberman v. WPPSS, 109 Wash.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987) (quoting Bowman v. John Doe, 104 Wash.2d 181, 183, 704 P.2d 140 (1985); Orwick v. Seattle, 103 Wash.2d 249, 254, 692 P.2d 793 (1984)).
CR 12(b)(6) motions should be granted only "sparingly and with care." Haberman, 109 Wash.2d at 120, 744 P.2d 1032 (citing Orwick, 103 Wash.2d at 254, 692 P.2d 793). "[A]ny hypothetical situation conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to support plaintiff's claim." Halvorson v. Dahl, 89 Wash.2d 673, 674, 574 P.2d 1190 (1978). Hypothetical facts may be introduced to assist the court in establishing the "conceptual backdrop" against which the challenge to the legal sufficiency of the claim is considered. Brown v. MacPherson's, Inc., 86 Wash.2d 293, 298 n. 2, 545 P.2d 13 (1975).
We have held that in determining whether such facts exist, a court may consider a hypothetical situation asserted by the complaining party, not part of the formal record, including facts alleged for the first time on appellate review of a dismissal under the rule. Halvorson, 89 Wash.2d at 675, 574 P.2d 1190. Neither prejudice nor unfairness is deemed to flow from this rule, because the inquiry on a CR 12(b)(6) motion is whether any facts which would support a valid claim can be conceived. See Halvorson, 89 Wash.2d at 674-75, 574 P.2d 1190.
Alleging union involvement is not a necessary element of a claim under RCW 49.32.020. Even if it were, however, the trial court and Court of Appeals could not have properly dismissed the complaint on a CR 12(b)(6) motion. The employees' allegations were consistent with union involvement, and the Court of Appeals would have been required to deem as true any assertions consistent with the complaint, even if made for the first time on appeal.
Dismissal of the complaint based on the pleadings alone is particularly inappropriate in this case because there is no prior state court decision setting forth the elements of a "concerted activities" claim under RCW 49.32.020. Federal cases interpreting a nearly identical provision in the National Labor Relations Act do not require union involvement to establish such a claim. "When an area of the law involved is in the process of development, courts are reluctant to dismiss an action on the pleadings alone by way of a CR 12(b)(6) motion." Haberman v. WPPSS, 109 Wash.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987) (citing 3A L. Orland, Wash.Prac. § 5152 (3d ed. 1980)).
For the reasons just stated, we reverse both the trial court's grant of a CR 12(b)(6) motion, and the Court of Appeals' approval of that grant.
The second question presented is whether, as a matter of substantive law, the trial court erred in dismissing the complaint on the ground RCW 49.32.020 protects only the activities of unionized workers acting collectively to improve their working conditions.
RCW 49.32.020 provides:
WHEREAS, Under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, 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 trial court dismissed the complaint on the ground the statute does not create an actionable right in non-unionized workers. 1 Oral Ruling, at 3. The Court of Appeals agreed, reasoning the term "concerted activities" protects from interference, restraint, or coercion only unionized workers. That interpretation of RCW 49.32.020 conflicts with the statutory language. It conflicts as well this court's decisions construing that language, overlooks basic...
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