Hume v. American Disposal Co., No. 60808-3

• Court: United States State Supreme Court of Washington
• Writing for the Court: DOLLIVER; ANDERSEN; JOHNSON
• Citation: 124 Wn.2d 656,880 P.2d 988
• Parties: , 147 L.R.R.M. (BNA) 2522, 129 Lab.Cas. P 57,766, 3 A.D. Cases 1208, 5 NDLR P 351 Randy HUME, Chris Davies, Michael Rogge, and Robert Taylor, Respondents, v. AMERICAN DISPOSAL CO., a corporation, D.M. Disposal Co., a corporation, and Murrey's Disposal Co., a corporation, Appellants.
• Docket Number: No. 60808-3
• Decision Date: 22 September 1994

Page 656

124 Wn.2d 656 880 P.2d 988, 147 L.R.R.M. (BNA) 2522,
129 Lab.Cas. P 57,766,
3 A.D. Cases 1208, 5 NDLR P 351 Randy HUME, Chris Davies, Michael Rogge, and Robert Taylor,
Respondents,
v.
AMERICAN DISPOSAL CO., a corporation, D.M. Disposal Co., a
corporation, and Murrey's Disposal Co., a
corporation, Appellants. No. 60808-3. Supreme Court of Washington,
En Banc. Sept. 22, 1994.
As Amended on Denial of Reconsideration Oct. 27, 1994.

[880 P.2d 990]

Page 660

Davis, Grimm & Payne, William T. Grimm, Seattle, for appellants.

Schwerin, Burns, Campbell & French, Lawrence Schwerin, Seattle, for respondents.

DOLLIVER, Justice.

The defendants, American Disposal Company, D.M. Disposal Company, and Murrey's [880 P.2d 991] Disposal Company, are commonly owned and controlled refuse collection companies engaged in business in Pierce County. Former employees of the defendants, Randy Hume, Chris Davies, Michael Rogge, and Robert Taylor, bring this cause of action, alleging harassment and constructive discharge in violation of public policy. The crux of the employees' claims is that the defendants retaliated against them for demanding overtime pay. In addition, Taylor claims handicap discrimination and, along with Davies, claims age discrimination.

Each of the plaintiffs worked as route drivers for the defendants, collecting residential and commercial waste. Until September 1988, the defendants' policy was rather informal. They had no time clock and generally paid route drivers for 40 hours per week regardless of how many hours they worked. Although some routes could be completed in less than 40 hours, the drivers found that even without lunch breaks, some routes consistently required more than 40 hours.

Page 661

In August 1988, after learning they were entitled under state law to be compensated, each of the plaintiffs began to record and turn in overtime. Meanwhile, in July 1988, the State Department of Labor and Industries had begun investigating complaints of unpaid overtime claimed by route drivers not plaintiffs in this case. The investigation was concluded in September when it was discovered that several of the defendants' employees were owed overtime compensation. The defendants settled these claims, changed their overtime policy, and installed a time clock for the drivers. At the same time, however, they instituted a stricter morning schedule and a rule forbidding the drivers to talk to each other on company property.

Although the overtime claims by the drivers in this case were not the direct focus of the state investigation, the result of the investigation had an impact on them, as the relationship between the defendants and their employees continued to deteriorate. At trial, the plaintiffs presented evidence that when they submitted overtime requests, they, along with other drivers, began to suffer verbal abuse and threats. They also began to receive unwarranted warning letters, some threatening termination if they did not complete their routes within the scheduled 40 hours. When approached by the drivers, the defendants refused to shorten the routes. In fact, three of the plaintiffs testified that their routes were actually enlarged after they complained. The harassment continued until the plaintiffs eventually left their employment in 1989.

The jury agreed that the plaintiffs were wronged, returning a verdict in favor of all four plaintiffs on their wrongful harassment claims and in favor of all plaintiffs except Rogge on their constructive discharge claims. The jury also returned a verdict for Taylor on his age discrimination claim, but rejected Davies' age discrimination claim. Damages awarded to the plaintiffs total $141,726.

The defendants appeal the verdict on several grounds. They also challenge the trial court's award of $169,465 in attorney fees and $45,663 for costs. Plaintiff Taylor cross-

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the trial court's dismissal of his handicap discrimination claim. We review this case on certification from Division Two. I

RCW 49.46.100 prohibits employer retaliation against employees who assert wage claims, and we have held employers who engage in such retaliation liable in tort for violation of public policy under this provision. See Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). The plaintiffs invoke this provision and seek damages for harassment and constructive discharge they claim they suffered as retaliation for requesting overtime pay from their former employers. Defendants argue, however, that the claims are preempted by federal labor law and are subject only to the jurisdiction of the National Labor Relations Board. We disagree.

Preemption is a purely jurisdictional issue, and its inquiry focuses on congressional intent. See International Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 391, 106 S.Ct. 1904, 1912, 90 L.Ed.2d 389 (1986). Congress has long exercised its power to regulate labor relations, and the United States Supreme Court, interpreting Congress'[880 P.2d 992] actions in the context of federal labor law, has articulated three branches of preemption. Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, gives the federal courts jurisdiction over lawsuits arising from collective bargaining agreements. The Machinists doctrine preempts any attempt by the state to regulate activity that Congress intentionally left unregulated. See Lodge 76, Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Empl. Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). The Garmon doctrine operates to preempt claims based upon a state law which attempts to regulate conduct that is arguably either prohibited or protected by the NLRA. See San Diego Bldg. Trades Coun., Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Only the Garmon doctrine is at issue in this case.

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In the National Labor Relations Act (NLRA) Congress has provided for centralized administration of its labor policies by creating the National Labor Relations Board (NLRB) and giving it broad authority. The Supreme Court has reinforced this structure by developing the Garmon rule that "[w]hen 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." Garmon, 359 U.S. at 245, 79 S.Ct. at 780. Section 7 of the NLRA, 29 U.S.C. § 157, gives employees the right "to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...." Section 8(a) of the Act, 29 U.S.C. § 158(a), identifies as unfair labor practices an employer's interference with, restraint, or coercion of employees engaging in concerted activity or exercising rights guaranteed in section 7. Thus, when it is clear or may fairly be assumed that the activities which a state purports to regulate are protected by section 7 or are prohibited by section 8, regard for the federal scheme requires that state jurisdiction must yield. Garmon, 359 U.S. at 244, 79 S.Ct. at 779.

The Supreme Court has refused, however, to apply the Garmon guidelines in a literal, mechanical fashion stating that

inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State's interest is one that does not threaten undue interference with the federal regulatory scheme.

Farmer v. United Bhd. of Carpenters & Joiners of Am., Local 25, 430 U.S. 290, 302, 97 S.Ct. 1056, 1064, 51 L.Ed.2d 338 (1977). See also Sears, Roebuck & Co. v. San Diego Cy. Dist. Coun. of Carpenters, 436 U.S. 180, 188, 98 S.Ct. 1745, 1753, 56 L.Ed.2d 209 (1978). The Court has also recognized two exceptions to the basic Garmon doctrine. Preemption of state jurisdiction is not required "where the activity regulated was

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a merely peripheral concern of the Labor Management Relations Act", or "where the regulated conduct touch[es] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, [it] could not [be inferred] that Congress had deprived the States of the power to act." (Footnote & citation omitted.) Garmon, 359 U.S. at 243-44, 79 S.Ct. at 779.

We begin our analysis of the case at hand with a reiteration of our general prejudice against preemption. Federal preemption can often produce a harsh result, and we are hesitant to find no state jurisdiction absent clear congressional intent. We also note that we are not convinced the statute at issue in this case attempts to regulate the employees' "protected concerted activities" under the NLRA. Although filing overtime grievances may be "protected activity" under the Act, the Washington statute does not attempt to regulate employee grievance procedures. Rather, the statute regulates employer actions by prohibiting retaliatory discharge. We ultimately find, however, that the employer retaliation regulated by the statute in this case touches a deeply rooted local concern and, therefore, falls under an exception to the Garmon doctrine.

In making this determination, we examine several factors, including the nature of the federal and state interests in regulation, [880 P.2d 993] the potential for interference with federal regulation, the differences between the Board proceeding and the state law action, and the available remedies. Farmer, 430 U.S. at 298, 300, 97 S.Ct. at 1062, 1063. In balancing the state's interest of protecting the relationship between employer and employee against the potential of interference with the federal regulatory scheme, we find such interference unlikely.

Claiming that such interference is unavoidable,...