Watkins v. City of Seattle

• Decision Date: 20 February 1940
• Docket Number: 27356.
• Citation: 2 Wn.2d 695,99 P.2d 427
• Parties: WATKINS v. CITY OF SEATTLE.
• Court: Washington Supreme Court

99 P.2d 427

2 Wn.2d 695

WATKINS v. CITY OF SEATTLE.

No. 27356.

Supreme Court of Washington

February 20, 1940

Department 2.

Action by G. E. Watkins, in his own behalf and as assignee of the claims of fellow employees, against the City of Seattle, to recover a loss of wages allegedly sustained by plaintiff and his assignors as the result of periods of unemployment and periods of employment at laborers' pay. From a judgment of dismissal with prejudice, plaintiff appeals.

Reversed and remanded with instructions.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Little Burgunder & Smith, of Seattle, for appellant.

A. C Van Soelen, Corp. Counsel, and Glen E. Wilson, Asst. Corp. Counsel, both of Seattle, for respondent.

STEINERT Justice.

Plaintiff in his own behalf and as assignee of the claims of six fellow employees, brought suit against the city of Seattle (1) for the recovery of wages that would have been earned by them as auto truck drivers during certain periods of time when they were laid off from work which, in the meanwhile, was performed by men classified as laborers, and (2) for the recovery of the difference between the amounts which they should have received as the wages of truck drivers and the amounts which were actually paid them as the wages of laborers. The cause was tried to the court and resulted in a judgment of dismissal with prejudice. The plaintiff has appealed. For convenience, plaintiff and his assignors, C. F. Blodgett, Joseph E. Dumas, L. G. Cooper, D. E. Wood, O. L. Albee and Ben Christensen, will hereinafter at times be referred to as appellants, and the city of Seattle as respondent.

In June, 1932, appellants were, and for some time past had been, in the employ of respondent, in the department of streets and sewers, under a civil service rating of 'auto truck drivers'. On June 15, 1932, the superintendent of the department notified appellants, with the exception of Albee, that they would be laid off on July 1 for 'lack of funds and lack of work.' Albee, on account of his seniority, was not laid off until January 1, 1933.

Shortly after the receipt of the notice of layoff, appellants Watkins and Blodgett made oral protest to the civil service commission against such action. At the suggestion of the commission the protest was reduced to writing in the form of a letter signed by all the appellants except Albee, and filed July 15, 1932. The letter called attention to the fact that the trucks which appellants had formerly driven were still being operated, but by men classified as laborers. After several discussions with appellants, the commission, on October 28, 1932, ordered that a detailed investigation of the matter be made. After an investigation and report by its examiner, the commission notified the superintendent of streets and sewers that laborers were doing work which properly should be done by truck drivers.

The superintendent replied that the department did not have sufficient funds at its disposal to pay the men the wages to which they would be entitled as truck drivers. The established monthly compensation of the drivers was higher than that of laborers.

On November 16, 1932, the superintendent and the truck drivers who had been laid off appeared Before the commission to discuss the matter further, and the superintendent then suggested the possibility of returning the men to work by reducing them to the status of laborers pending their later employment as truck drivers. The suggestion was taken under advisement, and on the following day the commission approved the suggestion to the extent that the reduction of the men to the status of laborers was to continue until their trucks were again put in service.

On November 22, 1932, each of the appellants, with the exception of Christensen and Albee, signed a 'request' for demotion to the grade of laborer 'until such time as conditions will enable me to go back to my regular position.' Albee signed a similar request a few days later. The requests for demotion were prepared by the superintendent and were signed in his office. It is not denied that at that time the superintendent told the men that the requests would have to be signed Before November 28, the effective date of an amendment to the civil service rules which would bar their demotion to a lower grade; that if they did sign, they could go back to work as laborers, but otherwise they would not have jobs; and that if they should take the case to court and get a decision favorable to them, he would discontinue the use of the trucks rather than reinstate the men as truck drivers. After the requests had been signed, the superintendent sent a communication to the commission notifying it that the appellants, with the exception of Albee and and Christensen, had been reduced to the grade of laborers, canceling their former separation from service effective July 1, and asking that the men be considered as being on leave of absence from July 1 to November 23.

Albee continued to work as truck driver until January 1, 1933, and was then demoted to the grade of laborer. Being fully conversant with the circumstances under which the demotions of the other men had been made in the preceding November, he registered no protest against his own reduction. Christensen refused to sign a 'request' for demotion and therefore was not put back to work until August, 1936, under conditions hereinafter related. However, he continued to press his claim for reinstatement and appeared Before the civil service commission at practically all of its meetings until he actually was reinstated. There is evidence to the effect that in his appearances Before the commission he represented all the appellants.

After appellants, with the exception of Albee and Christensen, had been out back to work as laborers in November, 1932, they continued to do the work of truck drivers, just as they had done Before , and it is not disputed that at all times, from the layoff in July, 1932, until February 3, 1937, the department continued to operate the same, or a greater, number of trucks, but using laborers to drive the lighter machines. Albee, on his demotion to the grade of laborer in January, 1933, likewise continued to do the work of a truck driver, just as he had done Before .

Subsequently, appellants, with the exception of Christeensen, were, at various times, laid off from all work, but during all of such times respondent continued to operate the trucks, though manned by men who were regularly classified as laborers.

The layoffs and demotions here in question and the course of procedure adopted and thereafter followed by the department of streets and sewers were the result of a policy of economy inaugurated by the mayor who was then in office.

After the change in the city administration, appellants on June 13, 1934, jointly addressed a communication to the civil service commission, calling attention to the fact that trucks were being driven by men classified as laborers. Following an investigation of the claim, the commission considered the matter and on July 31, 1934, made findings to the effect that the demotions of the truck drivers to the grade of laborers were in no sense voluntary, but were in fact reductions by the department itself on account of lack of funds. As a result of these findings the commission ordered that it be shown on the reinstatement registers that the names of the employees affected were carried as if the requests for reduction were departmental requests. On December 31, 1934, the matter of employment of laborers to do the work of truck drivers was again considered by the commission, and its secretary was instructed to notify the superintendent that the pay roll, in so far as it showed that laborers were doing the work of truck drivers, would not be checked for approval. The notification was duly sent. The superintendent then in office, successor to the one who had demoted the men, announced that the department did not have sufficient funds with which to comply with the order of the commission, and continued the practice instituted by his predecessor.

In July, 1935, the superintendent, in answer to the continued demands by the men for reinstatement, advised them that 'you have got to go to court for results.' Accordingly, on July 15, 1935, K. W. Jarrett, a demoted truck driver junior in rank to the appellants, herein commenced an action seeking his reinstatement to his former position. It appears that the appellants, being interested in the consequences of that proceeding, contributed to the expense of the suit.

Upon a trial of that action, the superior court entered judgment directing that Jarrett be reinstated to one of the positions of truck driver not filled by men of that classification, and the city was ordered to refrain from operating the remaining trucks, being those here in question, with employees of any other classification than that of auto truck drivers. On appeal by the city, that judgment was affirmed by this court on June 30, 1936. State ex rel. Jarrett v. Seattle, 186 Wash. 541, 58 P.2d 1212.

While that appeal was pending, the city put on five new trucks whereupon appellants demanded that men of their group be employed as truck drivers in the operation of the trucks. After considering the matter, the commission, through its secretary, on April 20, 1936, wrote to the city engineer, who had taken over the supervision of the street department, advising him that a considerable number of truck drivers in that department had arbitrarily been reduced to laborers; that the employment of laborers as truck drivers was in violation of the civil service law; and that an early effort should be made to adjust the situation. The city engineer did not comply with...