Plumbers and Steamfitters Union Local 598 v. Washington Public Power Supply System

• Decision Date: 14 August 1986
• Docket Number: No. 7068-9-III,7068-9-III
• Citation: 724 P.2d 1030,44 Wn.App. 906
• Parties: , 125 L.R.R.M. (BNA) 2653, 106 Lab.Cas. P 12,334 PLUMBERS AND STEAMFITTERS UNION LOCAL 598, Donald Lane, Larry J. Saltz, Buddy D. Wright, Pedro A. Nicacio, III, Roy A. Saltz, and Allen Detrick, Appellants, v. WASHINGTON PUBLIC POWER SUPPLY SYSTEM, Respondent.
• Court: Washington Court of Appeals

Page 906

44 Wn.App. 906

724 P.2d 1030, 125 L.R.R.M. (BNA) 2653,

106 Lab.Cas. P 12,334

PLUMBERS AND STEAMFITTERS UNION LOCAL 598, Donald Lane, Larry J. Saltz, Buddy D. Wright, Pedro A. Nicacio, III, Roy A. Saltz, and Allen Detrick, Appellants, v. WASHINGTON PUBLIC POWER SUPPLY SYSTEM, Respondent.

No. 7068-9-III.

Court of Appeals of Washington,

Division 3, Panel Two.

Aug. 14, 1986.

John Burns, Michael McGrorey, Hafer, Price, Rinehart & Schwerin, Seattle, for appellants.

Stanley J. Bensussen, Office of Chief Counsel, Wash. Public Power Supply System, Richland, for respondent.

GREEN, Chief Judge.

On November 17, 1982, Mr. Manion, a security officer employed by the Washington Public Power Supply System (WPPSS), was on patrol in the swing shift parking lot on the west side of WNP-2, a nuclear plant under construction in Benton County. He reported:

I observed about 75 crafts people approaching the bus parking area where a Ben Franklin bus was offloading personnel. As I approached, I observed some rocks being thrown at the bus. As the craft people on the bus attempted to exit, the people from the parking lot blocked their way. One of the individuals on the bus did step off the bus onto the ground.... He was later identified to me as:

Rodney Harrington, Carpenter

Badge No. 0009

As he stepped onto the ground he was struck in the face by one of the craft personnel from the parking lot, knocking him back against the side of the bus. I stepped in to stop the fight pulling one of the men off Harrington who had been hit. I was grabbed by some of the people from the parking lot and kept from stopping the fight. I turned to some of the craft people in the parking lot and asked them to stop the fight. As I turned back to see what was happening, I observed that Mr. Harrington was surrounded by about 25 crafts people and was lying on the ground being kicked by someone and being struck about the face and head by others. The crafts people I had asked to stop the beating stepped in and did stop it.

I made contact with:

Rodney Harrington

WNP-2 First Aid Station

where he was receiving treatment for facial injuries. I asked Harrington if he would prepare a statement of circumstances surrounding his injuries and identify the individuals involved. Harrington stated he did not know any of the individuals and refused to discuss the incident with anyone except his Union Business Agent.

A Mr. Frank Sartain, Carpenter General Foreman made contact with me at the WNP-2 First Aid Station and provided a written statement (Attachment # 1).

Attachment # 1

I was on my way to work, when I got off the Ben Franklin Bus. I was on the first bus about 7:00 AM. There were about 10 people waiting in the swing shift parking lot, then more people came [approximately] 30. Garry Young was grabbed in [the] front part of his leather jacket, and jerked around. He handed me his lunch box; several in the group went to calling us names. Don Lane grabbed my arm, I pulled loose, then he swung on me, and hit me in the left jaw. I walked away toward the gate and there were a large [number] of people going toward the bus stop. I was told that the man that shook Garry up, name was Bud Wright. I can identify him.

/s/ Frank Sartain, Sr.

11-17-82

Witness

/s/Robert A. Manion

11-17-82

(Italics ours.) This incident arose because union employees were being transported to work on nonunion buses. As a protest, the group had gathered in the parking lot to prevent them from leaving those buses. Initial investigation by WPPSS identified some of the participants in the melee and on November 19, WPPSS issued letters to Donald Lane, Larry J. Saltz, Buddy D. Wright, Pedro A. Nicacio III, Roy A. Saltz and Allen Detrick suspending each of them from coming onto WPPSS property. They were given 5 days to respond in writing as to mitigating circumstances before WPPSS reached a final decision on the matter. Those men were employed by Bechtel Corporation, a WPPSS subcontractor. On the same day, November 19, Bechtel fired these six workers without waiting for WPPSS to complete its investigation and reach a final decision. Thereafter, each of the workers submitted written statements admitting their presence at the affray. WPPSS completed its internal investigation and on December 1, 1982, restricted some for 30 days and the rest for 1 year from its property. This investigation included statements from other union workers who witnessed the event and identified the involvement of the six workers and requested anonymity because they feared retaliation. WPPSS honored their request.

The six workers first challenged Bechtel's right to terminate their employment and following arbitration, the arbitrator upheld the discharges. They then commenced this action against WPPSS for damages contending WPPSS had no right to restrict them from coming onto WPPSS property and as a result tortiously interfered with their contract of employment by Bechtel. The trial court limited the trial to the question of liability, deferring the question of damages. Following that hearing, the court held in favor of WPPSS and dismissed the action. The six workers and Plumbers and Steamfitters Union Local 598 appeal.

Four basic issues are presented: (1) Did WPPSS have the underlying authority to restrict the workers from coming onto WPPSS property? (2) Were the workers engaged in protected labor activity? (3) Did WPPSS unlawfully deprive the workers of a protectable property or liberty interest without due process of law? (4) Did WPPSS tortiously interfere with the workers' employment contract with Bechtel? We affirm.

First, the contention WPPSS had no authority to preclude people from coming onto its property must be rejected. An operating agency constructing or operating a nuclear power plant has statutory authority to establish a security force for the protection and security of the site. RCW 43.52.520. Members of the security force "may use reasonable force to detain, search, or remove persons who enter or remain without permission within the nuclear power plant site ..." (Italics ours.) RCW 43.52.530(1). Implicit in this provision is the power to grant permission. Inherent in the power to grant is the authority to withdraw its permission for the six workers to come onto its property.

Second, the contention that the rules the workers allegedly violated were not properly adopted pursuant to the rulemaking procedure delineated in the Administrative Procedure Act (APA) must also be rejected. "WPPSS is a municipal corporation", Lampson Universal Rigging, Inc. v. WPPSS, 105 Wash.2d 376, 379, 715 P.2d 1131 (1986); RCW 43.52.250, .360, with the power to "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Const. art. 11, § 11. A municipal corporation is not an "agency" as defined in the APA, RCW 34.04.010(1), because it is not a "state agency". Rather it is a "local agency". RCW 42.17-.020(1). ¹ Thus, the Washington APA does not apply and WPPSS need not comply with its rulemaking procedure. Riggins v. Housing Authority, 87 Wash.2d 97, 100-01, 549 P.2d 480 (1976).

Third, it is claimed the workers were engaged in protected labor activity and therefore could not be penalized for their actions. We disagree.

RCW 49.36.010 ² allows working men and women to organize themselves and carry out the legitimate purposes of the union by "any lawful means." However, concerted activities which are unlawful, violent, in breach of contract, or indefensible are not protected. NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298, 304 (1962); see also Coors Container Co. v. NLRB, 628 F.2d 1283, 1287 (10th Cir.1980); Mosher Steel Co. v. NLRB, 568 F.2d 436, 442 (5th Cir.1978); Florida Steel Corp. v. NLRB, 529 F.2d 1225, 1234 (5th Cir.1976); NLRB v. Red Top, Inc., 455 F.2d 721, 727 (8th Cir.1972); Corriveau & Routhier Cement Block, Inc. v. NLRB, 410 F.2d 347, 351 (1st Cir.1969). Concerted activity which interferes with or blocks the ingress and egress of employees and others at a place of employment is considered inherently coercive and thus unprotected labor activity. Youngdahl v. Rainfair, Inc., 355 U.S. 131, 132, 78 S.Ct. 206, 208, 2 L.Ed.2d 151 (1957); NLRB v. Service Employees Int'l Union Local 254, 535 F.2d 1335 (1st Cir.1976); NLRB v. United Mine Workers of Am., 429 F.2d 141, 146 (3d Cir.1970); 15 McKay Place Realty Corp. v. 32B-32J, Service Employees Int'l Union, 576 F.Supp. 1423, 1428 (E.D.N.Y.1983); see also Bering v. Share, 106 Wash.2d 212, 224-25, 721 P.2d 918 (1986).

Further, here, the stabilization agreement for WPPSS units 1, 2, and 4 signed by Bechtel and the union, specifically provides in 15(1):

There shall be no strikes, work stoppages, slowdowns or other collective actions which will interfere with, or stop the efficient operation of, construction work of the Employers. Participation by an employee, or group of employees, in an act violating the above provisions will be cause for discharge ...

Thus, under this agreement Bechtel had the authority to discharge the six workers even if WPPSS had not restricted their access to the property.

Further, the six workers in their own letters and statements to WPPSS presenting mitigating circumstances clearly establish that the group of union workers gathered in the swing shift parking lot on November 17, 1982, about 7 a.m. interferred with or blocked the ingress of employees on the buses. Larry J. Saltz, in his letter, stated:

At this time I went over to another bus which was getting ready to stop. This is when I went to the door of the bus to explain about non union buses to some of the union personnel riding it. Then I proceeded to say "Please stay on the bus." ...

I repeated myself 3 to 4 times saying "please" every time.

In a more detailed statement, he said We walked over to the buses and asked the passengers to please get back on the bus, we don't want...