Swanson v. Liquid Air Corp.

• Citation: 118 Wn.2d 512,826 P.2d 664
• Decision Date: 05 March 1992
• Docket Number: No. 57358-1,57358-1
• Parties: , 125 Lab.Cas. P 57,376, 126 Lab.Cas. P 57,556, 7 IER Cases 366 H. Clarke SWANSON, Respondent, and Jack LeDuc, Plaintiff, v. LIQUID AIR CORPORATION, a Delaware Corporation, Petitioner.
• Court: Washington Supreme Court

Page 512

118 Wn.2d 512

826 P.2d 664, 125 Lab.Cas. P 57,376,

126 Lab.Cas. P 57,556,

7 IER Cases 366

H. Clarke SWANSON, Respondent and Jack LeDuc, Plaintiff, v. LIQUID AIR CORPORATION, a Delaware Corporation, Petitioner.

No. 57358-1.

Supreme Court of Washington En Banc.

March 5, 1992.

Ferguson & Burdell, Henry C. Jameson, Alan Bornstein, Seattle, for petitioner

Vandeberg & Johnson, P.S., Jerome F. McCarthy, Tacoma, for respondent.

BRACHTENBACH, Justice.

This is an action for wrongful discharge. Plaintiff contends that, pursuant to a written memorandum of working conditions, he was entitled to a warning before discharge for fighting on company premises. The Court of Appeals reversed a summary judgment in favor of defendant. We affirm the Court of Appeals.

Since we are reviewing summary judgment granted in defendant's favor, we consider the facts in the light favorable to plaintiff. Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

In 1983, plaintiff worked as a driver for another company providing transportation services to defendant. Defendant, Liquid Air Corporation, solicited his application, and he began working at defendant's Kent distribution center as a cryogenic transport driver in December 1983. Sometime after the first part of 1984, plaintiff was given an employee benefits manual which is distributed to each Liquid Air employee. The benefits manual was later revised and plaintiff received a copy of the 200-page document through the mail.

The revised manual, titled "Your Employee Benefits," contained a disclaimer, the effect of which defendant claims is to render plaintiff an employee at will regardless of any agreement or company promise to the contrary (unless an employment contract is authorized by the president or executive vice-president of the company). There was no reference to the disclaimer in a cover letter; nothing was provided to plaintiff which referenced any specific part of the manual. Plaintiff recalls that he looked closely at the health and welfare benefits section of the manual, but he did not read the entire 200 pages, and he did not read any disclaimer statement.

In 1985, defendant hired additional drivers, making a total of thirteen. There was resulting unrest among the drivers as to dispatching practices and seniority. In February 1985, the Company's dispatch and equipment supervisor, that supervisor's immediate supervisor, and the Manager for Labor Relations came from company headquarters in California to meet with the Kent distribution center drivers to address the drivers' concerns. The meeting with the drivers lasted 2 days and involved extensive discussion of a 4-page document

                presented to the thirteen Kent drivers.   The document is titled
                

LIQUID AIR CORPORATION

MEMORANDUM OF WORKING CONDITIONS

INDUSTRIAL GASES DIVISION

KENT, WA, DISTRIBUTION EMPLOYEES

The Memorandum of Working Conditions was signed by all three company representatives.

Plaintiff stated in an affidavit that the Manager for Labor Relations told the drivers that the Memorandum of Working Conditions " 'was written specifically for you group of drivers because you are not under a union contract' " and " '[w]e want to attract good people and we want to keep good people.' " Clerk's Papers of Appellant, at 82. No mention of a disclaimer was made at the 2-day meeting.

The Memorandum of Working Conditions contains a provision titled "Work Rights." At least 4 hours were spent at the meeting going over the Memorandum of Working Conditions, including the work rights provision, with the Manager for Labor Relations explaining that, under the provision, employees who had not completed 90 days employment with the company could be terminated at will. As to other employees, the procedures established in the Memorandum would be followed.

The work rights provision stated:

Dishonesty, drinking or use of drugs on duty, recklessness resulting in an accident, or the carrying of unauthorized passengers shall be deemed sufficient and proper cause for discharge without prior notice. In all other instances of misconduct, at least one warning, shall be given. A new employee shall be on a ninety (90) day trial basis, during which period he may be discharged without prior notice.

(Italics ours.) Clerk's Papers of Appellant, at 58.

At the same meeting, a drivers handbook was also distributed. Under the safety rules section, the handbook stated that "[f]ighting, disorderly conduct and horseplay are prohibited." Clerk's Papers of Appellant, at 55.

After the meeting, plaintiff understood that his employment was governed by the Memorandum of Working Conditions.

In August 1985, a second meeting was held between the management team and the truck drivers. This meeting was "called primarily because the company had been notified that the drivers intended to seek representation from Teamsters Local 174." Clerk's Papers of Appellant, at 82. The Manager of Labor Relations stated that "the company would abide by the rules in the agreement and that no union representation would be necessary." Clerk's Papers of Appellant, at 82.

A third meeting was held in November 1985 with the drivers to discuss a revision in the Memorandum providing for a wage increase.

Plaintiff maintains that there was never any mention of a "disclaimer" by any company representative at any time while he was employed by defendant.

On February 6, 1986, plaintiff was involved in a physical altercation with another employee while on company property. The other employee had damaged a company trailer and had not reported it as required by the Memorandum of Working Conditions. Plaintiff insisted that the damage be reported, and in fact reported it himself. Shortly thereafter, the other employee interrupted a conversation between plaintiff and a third employee in the drivers' locker room. After words, the other employee pushed plaintiff in the back and into the drivers' lockers. Plaintiff took the other employee down and applied a police-type choke hold. He then let the other employee go. The other employee attempted to attack plaintiff again. Plaintiff repeated the choke hold maneuver. No blows were struck; the entire incident lasted less than a minute.

Plaintiff immediately notified his supervisors of the incident by phone. He was placed on suspension, and then discharged. The factual averments of plaintiff are not disputed.

Plaintiff brought this suit, alleging that defendant discharged him without prior notice for a reason other than those for which defendant had reserved the right to discharge without prior notice. Defendant moved for summary judgment, which the trial court granted. The Court of Appeals reversed, holding that the work rights provision in the Memorandum of Working Conditions promised specific treatment in specific situations and that under Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984), whether plaintiff justifiably relied on defendant's promises contained in the Memorandum is a question of fact. The court determined that plaintiff raised a material issue of fact as to justifiable reliance by presenting evidence that high ranking company officials from corporate headquarters met with the Kent truck drivers to discuss the Memorandum, including the work rights provision, evidence that the Memorandum was issued in an attempt to forestall unionization, and evidence that the company officials represented to the drivers the company's intent to be bound by the terms of the Memorandum. The court reached this conclusion even though defendant claimed that the disclaimer was valid and enforceable.

Defendant sought discretionary review, which this court granted, then remanding the case to the Court of Appeals for reconsideration in light of St. Yves v. Mid State Bank, 111 Wash.2d 374, 757 P.2d 1384 (1988). On reconsideration, the Court of Appeals adhered to its original decision. Defendant again sought review in this court.

In reviewing a grant of summary judgment, the appellate court engages in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990). Summary judgment is appropriate if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

CR 56(c); Marincovich, at 274, 787 P.2d 562. Facts and all reasonable inferences therefrom are considered in the light most favorable to the nonmoving party, and summary judgment should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Marincovich, at 274, 787 P.2d 562; Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Glesener v. Balholm, 50 Wash.App. 1, 7, 747 P.2d 475 (1987).

Plaintiff maintains that the Memorandum of Working Conditions created contractual rights or promises of specific treatment in specific circumstances which are enforceable obligations of defendant. Defendant maintains that the disclaimer in the benefits handbook is effective as a matter of law to ensure that plaintiff remained a terminable at will employee. Alternatively, defendant argues that even if the Memorandum of Working Conditions created enforceable rights, the prohibition against fighting found in the drivers handbook gave notice to plaintiff that fighting could lead to discharge, and this notice was sufficient warning to satisfy the requirements of the Memorandum of Working Conditions.

The following issues require resolution: (1) whether there are material issues of fact as to whether the Memorandum of Working Conditions modified the previously existing employment relationship; (2) whether the disclaimer is effective as a matter of law thus preserving a terminable at will employment relationship; (3) whether, if the...