Walsh v. Consolidated Freightways, Inc.

• Decision Date: 10 May 1977
• Parties: , 115 L.R.R.M. (BNA) 5045 Thomas John WALSH, Respondent-Cross-Appellant, v. CONSOLIDATED FREIGHTWAYS, INC., a Delaware Corporation, Appellant-Cross-Respondent.
• Court: Oregon Supreme Court

Page 1205

563 P.2d 1205

278 Or. 347, 115 L.R.R.M. (BNA) 5045

Thomas John WALSH, Respondent-Cross-Appellant, v. CONSOLIDATED FREIGHTWAYS, INC., a Delaware Corporation,

Appellant-Cross-Respondent.

Supreme Court of Oregon.

Argued and Submitted Feb. 8, 1977.

Decided May 10, 1977.

Jeffrey M. Batchelor, of Gearin, Cheney, Landis, Aebi & Kelley, Portland, argued the cause and filed briefs for appellant-cross-respondent

John R. Barker, Portland, argued the cause for respondent-cross-appellant. With him on the brief were William R. Miller, Jr., and Jones, Lang, Klein, Wolf & Smith, Portland.

Before DENECKE, C.J., and TONGUE, HOWELL, BRYSON, LENT, LINDE and MENGLER, JJ.

HOWELL, Justice.

This is a tort action in which plaintiff's complaint alleged two separate causes of action. The first alleges that plaintiff was wrongfully discharged from his employment by the defendant and seeks compensatory damages for lost wages and mental anguish, as well as punitive damages. In his second cause of action, plaintiff seeks additional compensatory and punitive damages for defamation and for interference with his contractual relationship with a subsequent employer. The trial court granted defendant's motion for a judgment of involuntary nonsuit with respect to plaintiff's second cause of action, but submitted his first cause of action to the jury and entered a judgment for the plaintiff on the jury's verdict. Defendant appeals from that judgment, and plaintiff cross appeals from the nonsuit of his second cause of action. Because the respective issues raised by the appeal and the cross-appeal are distinct and relate to different facts, we will discuss the appeal and the cross-appeal separately.

THE APPEAL

There was conflicting evidence concerning many of the facts pertinent to defendant's appeal, but because of the jury's verdict for plaintiff, we must resolve all conflicts against the defendant and view the facts in the light most favorable to plaintiff. See, e.g., Myers v. Cessna Aircraft, 275 Or. 501, 553 P.2d 355 (1976).

Plaintiff worked intermittently as a 'casual' dockman for defendant at its Portland terminal from June of 1968 through December of 1972. Casual employees work primarily as replacements for regular employees who are on vacation or otherwise unavailable for work. They also fill in during peak periods of business. The casuals are not covered under any union contract and have no formal seniority or grievance procedure rights.

Because plaintiff was attending college, he worked only during the summer months of the first four years in which he was employed by the defendant. After his graduation in 1972, however, he worked steadily through the summer and fall months except for three weeks in October in which he was off because of an industrial accident.

Defendant admits that it never complained to plaintiff about his work performance or otherwise indicated that it was dissatisfied with his work. While the evidence regarding plaintiff's work habits was in substantial conflict, one of plaintiff's co-workers testified that plaintiff was a good and productive employee. The evidence also indicates that plaintiff was regularly asked to work Sundays and that normally only the more productive and experienced casuals were selected to work on Sundays. However, there was also evidence that plaintiff attempted to organize the casual employees, although they were not covered by the union contract.

One of defendant's forklifts was an older, gas-powered model which was defective. Its exhaust system emitted 'blue clouds of smoke' which had a noxious odor and made it uncomfortable to work near the forklift in enclosed areas. Starting in about October 1972, several of defendant's employees began complaining about this problem which they believed presented a health hazard, and they brought the matter to the attention of their foremen, their supervisor, and the union representative. Since a replacement machine had been ordered, defendant's terminal manager decided not to attempt to repair the forklift but ordered that it be used only in areas isolated from most of the workers as much as possible.

On the evening of December 12, 1972, the employment or otherwise discriminate against the defective forklift was being operated in plaintiff's unisolated work area 'quite a bit' and it was 'putting out those fumes.' Plaintiff complained rather adamantly to his foreman and to the union representative but he was rebuffed. After that evening, plaintiff was terminated by defendant's terminal manager, who crossed plaintiff's name off the list of available casuals and added the notation, 'don't use.' Despite repeated inquiries, plaintiff was never informed of the reason for his discharge.

Defendant's first two assignments of error related to the trial court's actions in denying defendant's motions for an involuntary nonsuit and for a directed verdict. Essentially, defendant's position in these motions was that (1) plaintiff failed to produce sufficient evidence to present a jury question on the reason for his discharge and, (2) in any event, plaintiff's termination was not of the kind which would create a cause of action for wrongful discharge. Because we agree with defendant's second contention, we find it unnecessary to discuss the first.

In Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975), we held that the community's interest in having citizens serve on juries was sufficiently great that employers could not be allowed to discharge employees solely for refusing to ask to be excused from jury duty. Because no other remedy existed for the wrongfully discharged employee, we allowed the employee to recover compensatory damages in tort.

Although the situation in this case is similar, there is one decisive difference. It is true, of course, that the community has a strong interest in maintaining sale working conditions. That interest has been expressed in both state and federal statutes. See, e.g., ORS 654.001 Et seq.; 29 U.S.C. § 660(c) (1970); 29 CFR § 1977.9(c) (1975). Correspondingly, we would agree that employers should not be allowed to discharge employees solely for complaining about safety problems. However, unlike the situation in Nees, an employee who is discharged because he complained of a safety violation Is provided a remedy under existing law for his wrongful discharge.

Pursuant to 29 U.S.C. § 660(c), an employee who feels he has been discharged for reporting a safety or health violation can file a complaint with the Department of Labor within 30 days of his discharge and the Department will then investigate the charge. Under the statute, the Department is authorized to bring an action in federal district court if it finds that the employee has been wrongfully discharged, and the court can order 'all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.' Moreover, it is apparent that plaintiff was aware of this remedy, for the record indicates that he, in fact, did file a complaint pursuant to 29 U.S.C. § 660(c). Shortly thereafter, however, plaintiff took an extended trip to Europe, and the record does not reflect the eventual disposition of this complaint.

We feel that existing remedies are adequate to protect both the interests of society in maintaining safe working conditions and the interests of employees who are discharged for complaining about safety and health problems. We also note that ORS 654.062(5) now provides a similar remedy under state law although, admittedly, these provisions were not in effect at the time of the conduct in question. ¹ Therefore we find it unnecessary to extend an additional tort remedy to cover this kind of situation. Correspondingly, we conclude that the trial court erred in overruling defendant's motions for an involuntary nonsuit and for a directed verdict with respect to plaintiff's cause of action for wrongful discharge, and we hold that judgment should be entered for defendant on that cause. ²

THE CROSS-APPEAL

Plaintiff makes two assignments of error in connection with his cross-appeal. Each assignment concerns the trial court's action in granting defendant's motion for a judgment of involuntary nonsuit on plaintiff's second cause of action: the first assignment of error relates to plaintiff's defamation count, the second to his count for intentional interference with contractual relations. In passing on the propriety of the allowance of the judgment of involuntary nonsuit, the facts must be viewed in the light most favorable to plaintiff.

The allegedly tortious conduct occurred during a conversation between defendant's terminal manager and the terminal manager at Pacific Motor Trucking Co., where plaintiff went to work after he was discharged by the defendant. There was evidence that shortly after this conversation, plaintiff was fired by Pacific Motor Trucking Co.

Defendant's terminal manager testified to this conversation as follows:

'Q. Do you recall your conversation with Mr. Williams (then Terminal Manager for P.M.T.) about Mr. Walsh?

'A. Faintly, yes.

'Q. Can you tell the jury, to the best of your recollection, the substance of that conversation about what Mr. Williams said to you and what you said back to him?

'A. I don't recall whether it was by telephone or otherwise, because I had some contact with Mr. Walsh or Mr. Williams. As I recall, the gist of the conversation was, 'We have recently started using a casual that used to work for you. I noticed from his background and his education that he appears to be pretty well qualified. What do you think of him as a supervisor or potential supervisor?'

'Q. And what was your response?

'A. I told him I wouldn't hire him as a supervisor for Consolidated Freightways.

'Q. Did you tell him anything else?

'A. Obviously, he asked me why, and I told him that I felt that the entire work record of Tom in the last--you know, from what had been told to me, based upon his...