Hotel Employees and Restaurant Employees, Local 8 v. Jensen, 19687-1-I
| Decision Date | 06 June 1988 |
| Docket Number | No. 19687-1-I,19687-1-I |
| Parties | , 113 Lab.Cas. P 11,752 HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES, LOCAL 8 and Hanny Leutsch, Appellants, v. Glen JENSEN, Angelita Lubag, Fel Ordonia, Sam Lock, and Felsamli, Inc., Respondents. |
| Court | Washington Court of Appeals |
Clifford D. Sethness, Lane, Powell, Moss & Miller, Seattle, for Glen Jensen.
Richard J. Omata, Philip A. Talmadge, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, for Angelita Lubag, Fel Ordonia, Sam Lock, and Felsamli, Inc.
Hanny Leutsch and the Hotel Employees and Restaurant Employees Local 8 (hereinafter "Union"), filed a complaint against a number of defendants alleging tortious interference with contract and business expectancy. The trial court granted defendants' motion dismissing the claim for lack of jurisdiction. The Union appeals the dismissal. Several respondents move under RAP 9.11 for consideration of new evidence on review.
Leutsch is a member of the Union and was an employee at Blaze's Broiler, a restaurant owned and operated by Jensen's Restaurant Enterprises, Inc. Respondent Glen Jensen is the sole shareholder and general manager of Jensen's Restaurant Enterprises.
Prior to 1986 the Union had a collective bargaining agreement with Jensen's Restaurant Enterprises. The most recent contract expired in July 1986. Between June and August of 1986, Blaze's Broiler and the Union negotiated in In August and September 1986, the Union filed charges with the National Labor Relations Board (NLRB), claiming that Jensen's Restaurant Enterprises violated the National Labor Relations Act (NLRA) in not reaching a new collective bargaining agreement with the Union and by later going out of business.
an unsuccessful attempt to reach a new collective bargaining agreement. The Union struck the restaurant on August 18. On August 25, Jensen informed the Union that he was closing the restaurant and did so on August 28. Jensen has been out of business at the Broiler since that date
On October 31, 1986, after investigating the charges the NLRB advised the Union that it was refusing to issue a complaint due to insufficient evidence of a violation of the NLRA.
Respondent Felsamli, Inc. employs respondents Lubag, Ordonia, and Lock. Felsamli purchased the assets of Blaze's Broiler from Jensen's Restaurant Enterprises and reopened the establishment as the Shilshole Broiler. Felsamli declined to engage in negotiations with the Union concerning a collective bargaining agreement.
On October 8, 1986, Leutsch and the Union filed a complaint in court for damages for tortious interference with contract and business expectancy against the respondents. The complaint alleged that the respondents acted in concert to transfer the restaurant from one corporation to a new corporation and that respondents acted intentionally to interfere with the relationship between plaintiffs and Blaze's Broiler. The alleged interference eliminated the job formerly held by Leutsch and her expectancy of continued employment, and the Union's expectancy of a new contract with the restaurant.
On December 11, 1986, the trial court dismissed the complaint, holding that exclusive jurisdiction over the subject matter of the complaint rested with the NLRB. Plaintiffs seek review by this court.
The Union first contends that the trial court erred in dismissing its state claim due to lack of jurisdiction. This court reviews the determination of jurisdiction de novo. See Lumber Prod. Indus. Workers Local # 1054 v. West Coast Indus. Relations Ass'n, 775 F.2d 1042, 1047 (9th Cir.1985).
The NLRB possesses exclusive jurisdiction over conduct that is arguably protected or prohibited by the NLRA. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 242-45, 79 S.Ct. 773, 778-80, 3 L.Ed.2d 775 (1959); International Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 394, 106 S.Ct. 1904, 1914, 90 L.Ed.2d 389, 403 (1986). Both state and federal courts must defer to the exclusive competence of the NLRB. Garmon, 359 U.S. at 245, 79 S.Ct. at 779.
The critical determination for preemption purposes is whether a state or federal claim involves an identical controversy to that which could have been brought before the NLRB. 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). The decision to preempt state or federal jurisdiction over a class of cases depends on the nature of the particular interest being asserted and the effect upon the administration of national labor policies of permitting the court to proceed. Sears, Roebuck & Co., at 188-89, 98 S.Ct. at 1752-53. Preemption is inappropriate where the conduct at issue is only a peripheral federal concern under the NLRA or if it involves a significant state interest that weighs so heavily by comparison to the NLRB's interest in exercising exclusive jurisdiction that congressional interest to deprive the The Union contends that the court has jurisdiction over its action because, in order for the claim to fall within the Garmon preemption line of cases, the NLRA must cover both the conduct at issue and the parties to the action. The Union maintains that in this case neither the conduct nor the parties are covered. Respondents contend that preemption turns only upon the parties' conduct, which is covered by the NLRA in the instant case.
state of its power cannot be inferred. Id.; see also Garmon, 359 U.S. at 243-44, 79 S.Ct. at 778-79
The Union argues that its claim is not preempted under the Garmon line of cases. According to the Union, the elements necessary to establish its claim, which requests damages for tortious interference with contract and business expectancy, are not identical to the elements necessary to establish a claim before the NLRB for unfair labor practices. Moreover, there is no provision in the NLRA, the Union contends, protecting the conduct of the respondents, and the State has a substantial interest in protecting its citizens from such conduct.
Respondents answer that the claim involves an identical controversy to a claim that could be brought before the NLRB. Respondents cite extensive authority in which actions for tortious interference with a contract were preempted.
Setting aside for the moment the questions of whether the parties are subject to the NLRA, the Union's claim of tortious interference is normally encompassed by the NLRA and hence is preempted under Garmon. 1 It is The Court ruled in Local 207, Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963), that Perko's common-law cause of action for tortious interference with his employment contract was preempted by the NLRA. While acting as a superintendent Perko violated a Union rule. The Union suspended him and told his employer that Union members would no longer take orders from him. The employer consequently discharged him several weeks later. The Court concluded that Perko's common-law action was preempted because it was founded on conduct that was arguably within the ambit of section 7 or 8 of the NLRA.
well settled that a state claim of tortious interference with an employment contract is preempted by the NLRA.
In Local 926, Int'l Union of Operating Eng'rs, AFL-CIO v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983), a supervisor who had been discharged by his employer at the request of a union filed section 8 charges with the NLRB against the union. The NLRB dismissed the charge for lack of evidence. The employee then sued the union in state court, alleging that the union had tortiously interfered with his employment contract with the company. The Court Lumber Prod. Indus. Workers Local # 1054 v. West Coast Indus. Relations Ass'n, supra, involved facts similar to those of the present case. The Union had represented employees at the Nord Co. for over 25 years, during which period Nord and the Union entered into a series of collective bargaining agreements that governed the terms and conditions of employment. After the expiration of the most recent agreement, which did not contain provisions that it was to remain in effect after its expiration during negotiations for a new contract, Nord retained labor consultants to negotiate a new contract.
citing Perko, agreed with the respondent that Jones' claim for tortious interference was preempted.
The negotiations were unfruitful. The union initiated a strike against Nord and filed an unfair labor practice claim with the NLRB, alleging bad faith bargaining in violation of sections 8(a)(1) and (5) of the NLRA (29 U.S.C. § 158). The Board dismissed the complaint after determining that there was insufficient evidence of bad faith to support the charge.
The Union then filed an action in a Washington State court against the labor consultants, alleging that the consultants had deliberately and maliciously interfered with the Union's prospective contractual relationship. The consultants removed the action to federal district court and filed a motion to dismiss, contending that the complaint was based on conduct that arguably constituted bad faith bargaining and that was hence within the exclusive...
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