Briggs v. Hotel Corp. of Pacific, Inc., 15459

• Decision Date: 30 June 1992
• Docket Number: No. 15459,15459
• Parties: , 143 L.R.R.M. (BNA) 2802 William BRIGGS and Donovan Webb, Plaintiffs-Appellants, v. HOTEL CORPORATION OF the PACIFIC, INC. d/b/a Aston Hotels and Resorts, Inc. d/b/a Aston Sands of Kahana; Association of Apartment Owners Ke Nani Kai; Andy Gonzales; Andre Tatibouet; Tovic Leiberman; John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; and Doe Partnerships 1-10, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 1335

831 P.2d 1335

73 Haw. 276, 143 L.R.R.M. (BNA) 2802

William BRIGGS and Donovan Webb, Plaintiffs-Appellants, v. HOTEL CORPORATION OF the PACIFIC, INC. d/b/a Aston Hotels and Resorts, Inc. d/b/a Aston Sands of Kahana; Association

of Apartment Owners Ke Nani Kai; Andy Gonzales; Andre

Tatibouet; Tovic Leiberman; John Does 1-10; Jane Does

1-10; Doe Corporations 1-10; and Doe Partnerships 1-10,

Defendants-Appellees.

No. 15459.

Supreme Court of Hawai'i.

June 30, 1992.

Syllabus by the Court.

1. When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act (NLRA), or constitute an unfair labor practice under § 8, due regard for federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress, and requirements imposed by state law.

2. When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.

3. Allegations of tortious conduct such as outrageous conduct, threats, intimidation, and words which cause the plaintiff to suffer grievous mental and emotional distress as well as great physical damage may also fall within an exception to the federal interest in the national labor policy and therefore permit state law recovery.

4. Inducing employees to vote against unionization by promises of higher wages is an unfair labor practice.

5. Constructive discharge in retaliation for a failure to cooperate with an investigation of the employer's labor practices is a violation of the NLRA.

6. Conduct violating the National Labor Relations Act cannot itself form the underlying "outrageous" conduct on which a state-court tort action is based; to hold otherwise would undermine the pre-emption principle. Nor can threats of such discrimination suffice to sustain state-court jurisdiction. It may well be that the threat, or actuality, of employment discrimination will cause considerable emotional distress and anxiety. But something more is required before concurrent state-court jurisdiction can be permitted. Simply stated, it is essential that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual threatened discrimination itself.

7. In order for a tort claim based on outrageous conduct to survive pre-emption, the outrageous conduct must be either 1) unrelated to governed labor practices or 2) be accomplished in such an abusive manner that the manner itself becomes the basis for the claim.

8. Pre-emption does not extend to conduct on the part of union officers which is so outrageous that no reasonable man in a civilized society should be expected to endure it.

9. A motion for reconsideration is not the time to relitigate old matters. It is inappropriate on a motion for reconsideration to introduce new facts which are uniquely within the personal knowledge of a party. It is incumbent on that party, if he is serious about defending a motion for summary judgment, to present those facts to the court before it acts on the motion.

10. Facts within the personal knowledge of the opposing party must be presented to the court in opposition to a motion for summary judgment, not on a motion for reconsideration.

11. Memorandum of counsel and an affidavit that is merely an assertion of conclusions which are filed by the non-moving party are not sufficient to raise a genuine issue of material fact on a motion for summary judgment.

Lowell D. Chatburn, Wailuku, Maui, for plaintiffs-appellants.

M. Anne Anderson, Neeley & Anderson, Honolulu, for defendant-appellee Ass'n of Apartment Owners of Ke Nani Kai.

Ernest C. Moore, III (Torkildson, Katz, Jossem, Fonseca, Jaffe & Moore) (Lori K. Aquino on the brief), Honolulu, for defendants-appellees Hotel Corp. of the Pacific and Tatibouet.

Before LUM, C.J., WAKATSUKI, MOON and KLEIN, JJ., and Intermediate Court of Appeals Associate Judge HEEN in place of LEVINSON, J., recused.

LUM, Chief Justice.

Plaintiffs-appellants William Briggs (Briggs) and Donovan Webb (Webb) appeal from an order granting a motion for dismissal on the pleadings or alternatively for summary judgment on behalf of defendants-appellees Hotel Corporation of the Pacific (Aston), Andre Tatibouet (Tatibouet), and Apartment Owners of Ke Nani Kai (Ke Nani Kai). Briggs and Webb additionally appeal from an order denying their motion for reconsideration of the above order, as well as an order denying objections to an order dismissing defendants Andy Gonzales (Gonzales) and Tovic Lieberman (Lieberman).

Because we find no facts pleaded or submitted through affidavits which would exclude plaintiffs' claims against defendants from the purview of the National Labor Relations Act, we find that the claims are pre-empted by federal law. Accordingly, we affirm the judgment of the circuit court. We further find that Webb and Briggs did not timely serve Gonzales and Lieberman and hereby affirm the circuit court's order denying Webb's and Briggs' objections to the order dismissing Gonzales and Lieberman.

I.

Briggs, an employee of Ke Nani Kai, and Webb, an employee of Aston, filed the instant suit on August 22, 1990, complaining that in 1988, Aston and Ke Nani Kai improperly induced Webb to solicit Briggs' assistance in defeating a vote by Aston employees to unionize, ¹ and Briggs was persuaded to inform employees that Aston promised to raise employee salaries by $2.00 an hour if employees rejected unionization. Employees of Aston did, in fact, vote to reject unionization. Briggs and Webb then claimed that Aston and Ke Nani Kai reneged on the promised wage increase. Webb and Briggs further claimed that in response to investigations by the National Labor Relations Board, Aston and Ke Nani Kai sought Webb's and Briggs' participation in a cover-up of the improper offer of wage increases. Webb and Briggs finally alleged that the defendants were "negligent, grossly negligent, reckless, intentional, wanton, malicious and/or fraudulent in their conduct" and that this conduct resulted in constructive discharge. They claimed to have suffered emotional, physical and pecuniary injury.

On March 15, 1991 the court filed a notice of dismissal as to defendants Gonzales and Lieberman because Webb and Briggs had not effected service upon them within six months of filing their complaint. Webb and Briggs filed objections, claiming that they could not locate these defendants. The court denied these objections by order dated May 14, 1991, the court finding no specific reasons of good cause as to why these defendants were not served within the six month period specified by Rule 28 of the Rules of the Circuit Courts of the State of Hawaii (RCCH). ²

The record shows that eight months after the suit was initially filed very little discovery had been sought by Plaintiffs. Aston filed a motion, in which Ke Nani Kai joined, asking the court to dismiss the complaint and in the alternative for summary judgment, contending that the National Labor Relations Act (NLRA) pre-empted the claims against them. Briggs and Webb filed a memorandum in opposition arguing that the intentional and malicious conduct referred to in their complaint was sufficient to except plaintiffs' complaint from exclusive federal jurisdiction, that their claims were not barred by worker's compensation laws because their claims were not against their respective employers, ³ and that conduct which occurred prior to or after the election was not pre-empted by the NLRA. No affidavits were attached to this memorandum.

On April 22, 1991, the day before hearing on this motion, plaintiffs submitted a supplementary memorandum and affidavits of Webb and plaintiffs' attorney but not one of Briggs. Plaintiffs' attorney Lowell Chatburn (Chatburn) informed the court that Briggs was unavailable but asked that "if the Court deems additional information is needed to decide the motion," the court allow Chatburn more time pursuant to Hawaii Rules of Civil Procedure (HRCP) Rule 56(f).

Webb's affidavit supported the general allegations made in the complaint and further alleged that he received anonymous and threatening phone calls after the employer reneged on the wage increase and that he suffered emotional distress. ⁴ Webb further stated that Gonzales, a supervisory worker, called him and "exacerbat[ed] my emotional and physical condition." Webb did not specify the subject matter of these calls.

Attorney Chatburn supplied an affidavit explaining that Briggs was a merchant marine currently unavailable to supply an affidavit but that Briggs had previously related to Chatburn that he had been subjected to "physical and mental abuse" by Aston employees; that he had been physically and verbally threatened by the parties, their employees, and their relatives; and that Briggs had been made to look like a liar and felt in danger of physical harm while on Molokai. The threats continued even after Briggs' employment with Ke Nani Kai ended. Chatburn further alleged that these incidents resulted in anxiety and stress disorders which necessitated medical treatment. The conclusory statements of both Chatburn and Webb did not provide the court with specific facts of outrageous conduct committed by defendants. ⁵

On May 14, 1991, following the hearing of April 23, 1991, the court granted defendants' motion for summary judgment, finding no genuine issue of material fact and holding that the claims were barred by the federal labor law pre-emption doctrine set forth in San Diego Bldg. Trades Council v. Garmon, 359 U.S....