166 Wash. 2d 794 | Wash. | 2009
Lead Opinion
¶1 — Eight employees of a nonprofit organization did not support the executive director appointed by its board. Instead, the employees made efforts to remove her from office, including sending a letter to the board of directors demanding she be fired. After the board
Facts
¶2 Eight former employees (Employees) allege they were wrongfully terminated by Nova Services, a Washington nonprofit corporation that provides services to disabled persons. Six of the Employees held self-described management positions at Nova, including Ken Briggs, Judy Robertson, Mark Johnson, Shirley Bader, Beverly Nunn, and Jami Smith (collectively Managers). The remaining two Employees, Margaret Clark and Valerie Bruck, held nonmanagement positions.
¶3 After unsuccessfully attempting to talk with director Brennan directly, the Managers sent a letter to the board of directors on April 6, 2004, regarding their ongoing concerns about director Brennan’s management of the organization.
¶4 Nova argues that the Managers’ letter violated its internal policy barring direct employee communication with the board. However, Nova took no disciplinary action against the Managers at that time. Instead, the board responded to the letter by hiring an attorney, Michael Love, to investigate the Managers’ concerns. After conducting an investigation, Mr. Love determined that director Brennan had not engaged in illegal conduct. CP at 81. Love recommended that the board terminate either director Brennan or Briggs and Robertson because “personal animosity runs too deep” to allow continued working together. CP at 120.
¶5 The board did not follow Love’s recommendation but employed a human resource consultant, Ellen Flanigan, to mediate. After director Brennan and the Managers refused to attend mediation sessions with each other, Ms. Flanigan arranged a meeting between the Managers and the board on June 29, 2004, to discuss the Managers’ dissatisfaction with director Brennan.
¶6 On July 12, 2004, Ms. Flanigan and director Brennan met with Bader, Nunn, Johnson, and Smith individually. Director Brennan told each that she was willing to make every effort to better communicate to address their concerns, CP at 61, and to take steps “to improve the workplace for all employees.” CP at 65, 300. That same day, director Brennan terminated Briggs and Robertson for insubordination, petitioning grievances directly to the board, and for
¶7 Upon learning of Briggs’s and Robertson’s termination, Bader informed director Brennan of her intent to leave Nova in response to those terminations. Bader claims that she and director Brennan agreed that she would remain at Nova until director Brennan found a replacement. Later the same day, director Brennan asked Bader to leave by the end of the day.
¶8 On July 15, 2004, the remaining Employees, including Bader, sent a letter to the board requesting the reinstatement of Briggs and Robertson and the firing of director Brennan. CP at 79. The letter indicated that the Employees would “walk out of Nova Services” if the board did not contact them by the end of the following day, that they would not return until their requests were met, and that the requests were “non-negotiable.” Id. The board did not contact the Employees the next day. As promised, Johnson, Smith, Clark, Bruck, Zeller, and Nunn did not come to work. Director Brennan considered this action as a group resignation and began to hire replacements for all of the Employees.
¶9 The Employees filed a complaint against Nova on September 17, 2004, alleging wrongful “termination” in violation of public policy,
Analysis
¶11 We review an order granting summary judgment de novo. York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 302, 178 P.3d 995 (2008). Under CR 56(c), summary judgment is appropriate if the record presents no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d 236, 243, 178 P.3d 981 (2008). We must view all facts and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Viking Props., Inc. v. Holm, 155 Wn.2d 112, 119, 118 P.3d 322 (2005).
¶12 Employers and employees generally can terminate their employment relationship at any time for any reason without having to explain their actions to a court. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 226, 685 P.2d 1081 (1984). We have always made clear that the tort of wrongful discharge in violation of public policy is a
¶13 In order to prevail on a claim of wrongful discharge, a plaintiff must be able to show three things: (1) Washington has a clear public policy (the clarity element), (2) discouraging the conduct would jeopardize the public policy (the jeopardy element), and (3) that policy-protected conduct caused the dismissal (the causation element). Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996). If these three elements are met, an employer will still prevail if it is able to offer an overriding justification for the termination decision (the absence of justification element). Id.
¶14 To determine whether a clear mandate of public policy is violated, we should “ ‘inquire whether the employer’s conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme.’ ” Farnam v. CRISTA Ministries, 116 Wn.2d 659, 668, 807 P.2d 830 (1991) (quoting Thompson, 102 Wn.2d at 232). We also examine prior judicial decisions that may establish a relevant public policy. Id. We have generally recognized the public policy exception when an employer terminates an employee as a result of his or her (1) refusal to commit an illegal act, (2) performance of a public duty or obligation, (3) exercise of a legal right or privilege, or (4) in retaliation for reporting employer misconduct. Gardner, 128 Wn.2d at 936.
¶15 The Employees argue that Washington has a clear public policy to engage in concerted activities. The Employees rely on RCW 49.32.020 and interpretative case law to support their conclusion. RCW 49.32.020 provides a limited but clear public policy on which a claim for wrongful
WHEREAS... the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections. . . .
RCW 49.32.020. Washington and federal law have recognized that nonunion employees have a right to engage in “concerted activities.”
¶16 Once the policy is clearly defined, it is clear Nova’s firing of two employees, and its recognition that six others had quit, did not jeopardize the public policy in the statute, nor were the firings caused by protected activities. The Managers wrote to the board of directors complaining that Nova’s executive director, Linda Brennan, left managers to do work in isolation, failed to delegate authority well, did not hire needed staff, failed to foster open communication, and was poor at managing finances.
¶18 In response to the letter, Nova’s board of directors acted reasonably. It hired a labor lawyer and then a professional mediator. After an investigation, the lawyer told the board that either director Brennan or two of the Managers would have to go because the three simply could not work together. The board decided that director Brennan was doing a fine job and empowered her to make any personnel changes necessary to continue the important work of this nonprofit. Director Brennan fired two of the Managers who refused to work with her. This was reasonable and in no way jeopardized the employees’ right to band together for better working conditions, since they were not complaining about working conditions.
¶19 After director Brennan fired the two managers, six other employees wrote a second letter, this time demanding director Brennan’s removal and promising to “walk out of Nova Services” if the board did not comply. CP at 79. They promised they would “not return until these requests have been met.” Id. When the board did not comply, they carried out their threat. Faced with an empty office and a “nonnegotiable” written promise that those employees would not return, director Brennan took reasonable action and hired new employees. Nova is, after all, a nonprofit corporation with a mission of helping disabled people. Even a minor delay in services would have major negative impacts on the lives of Nova’s disabled clients.
¶21 The facts here are far different from those in one cited case to support the claim. In National Labor Relations Board v. Martin, 207 F.2d 655 (9th Cir. 1953), an employee, during a dispute over bonus pay, told his employer that if he failed to hear from management in 24 hours, he was quitting. Id. at 658. The employee then went back to work and actually showed up at the factory the next day. Id. In Halstead Metal Products v. National Labor Relations Board, 940 F.2d 66 (4th Cir. 1991), two of nine employees who walked out of a plant to protest a change in work schedules said they “quit” when describing what they were doing. Id. at 71. The rest simply stood outside until management came and talked with them, at which point they all returned to work. Id. In neither of these cases did the employees demand their supervisor’s firing on a nonnegotiable basis or give any real indication their absence was anything more than temporary.
¶22 Not so with the six Employees here. They wrote a letter to the board of directors stating their intentions clearly. They demanded director Brennan be fired and the two Managers reinstated or they would leave and not return.
¶23 Similarly, Shirley Bader was not discharged, and so was not discharged wrongfully. Bader told director Brennan she was quitting and gave two weeks notice. Director Brennan asked if Bader could work at Nova during those two weeks without undermining her authority. Bader said she could not, so director Brennan told her that she would be paid for the next two weeks but that she should not
¶24 Employees in Washington do have some statutory protection of rights to band together to improve their working conditions. However, these rights do not extend so far as to supersede the employer’s right to hire and retain the leadership of a company and surely do not block an employee’s ability to quit. Nova did not violate a clear public policy when it fired two employees based on an undeniable conflict of personalities and stated inability to work within the company. Nor did Nova violate a clear public policy when it accepted the resignation of the other six employees who would not work for Nova’s choice of an executive director.
Conclusion
¶25 We conclude that Nova did not violate a clear public policy when it fired two employees and accepted the resignation of the other six. Even in the light most favorable to the employees, the record simply does not present a genuine issue as to any material fact and Nova is entitled to a judgment as a matter of law. Therefore, summary judgment was appropriate in this case. We therefore affirm the Court of Appeals decision upholding Nova Services’ summary judgment motion relating to wrongful discharge and need not reach the issue of whether RCW 49.32.020 extends to protect employees who engage in concerted activities.
Odalys Castillo stipulated to the dismissal of her claims. Clerk’s Papers at 355. Pam Zeller apparently abandoned her claims as well. Appellants’ Opening Br. at 6.
We refer to the tort as “wrongful discharge in violation of public policy.” Korslund v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P.3d 119 (2005).
We recently outlined the basic principles of wrongful discharge in violation of public policy in Danny v. Laidlaw Transit Services, Inc., 165 Wn.2d 200, 206-07, 193 P.3d 128 (2008).
Because of the similarity between the text of RCW 49.32.020 and 29 U.S.C. § 157, federal law has been found persuasive by this court. Bravo, 125 Wn.2d at 754-55.
They also complained that she improperly accrued sick leave in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, but that would give rise to a complaint under that law, not one for wrongful discharge.
Concurrence Opinion
¶26 (concurring) — The lead opinion and the dissent conflate the analytical framework for the cause of action for violation of a group of employees to engage in “concerted activities” under RCW 49.32.020 with the analytical framework for the tort of discharge in violation of public policy. Doing so is inconsistent with our analysis in Bravo v. Dolsen Cos., 125 Wn.2d 745, 888 P.2d 147 (1995).
¶27 In Bravo, we did not analyze a concerted activities claim under RCW 49.32.020 together with the tort of wrongful discharge in violation of public policy. There we stated an important public policy exists: “that a discharge which violates RCW 49.32.020 also gives rise to a tort of discharge in violation of a clear mandate of public policy” 125 Wn.2d at 758 (emphasis added). This means a party must establish that RCW 49.32.020 was violated before it can bring a claim for discharge in violation of public policy.
¶29 The threshold issue here, therefore, is whether the activities engaged in by the employees constitutes a concerted activity, under the statute. In Bravo, after adopting a dictionary definition for the term “concerted,” we articulated the appropriate inquiry for a court to make: “whether the employees were alleging interference or retaliation because of activities the employees had undertaken action in concert - together - for the purpose of improving their working conditions.” 125 Wn.2d at 752. If this question is answered in the negative, the employees did not engage in a concerted activity.
¶30 Here, the employees’ activities were not an effort to improve their working conditions under the meaning of the statute. Rather, the employees were simply attempting as a group to leverage out someone they considered a “bad boss,” which is not sufficient to establish that Nova violated the employees’ right to engage in concerted activities. The employees do not allege how their working conditions were affected, within the meaning of the statute. As such, both
This is not to say that an employee must have a remedy under the statute to bring their claim for wrongful discharge in violation of public policy. But the terminated employee must first prove that a public policy was violated, which thereby rendered such termination wrongful. Roberts v. Dudley, 140 Wn.2d 58, 60, 993 P.2d 901 (2000). As such, before the employees in this matter can bring a claim for wrongful discharge in violation of public policy, they must first prove that their right to engage in concerted activities (i.e., the public policy identified in RCW 49.32.020) was violated.
Washington State Trial Lawyers Association Foundation, in its amicus brief, properly points out the concerted activities claim is broader in scope than the wrongful discharge claim. A concerted activities claim enables employees to prevail if they show, among other things, they were restrained, interfered with, or coerced. RCW 49.32.020. But to bring the wrongful discharge claim there must be an actual discharge, under current case law; constructive discharge is arguably sufficient. Bravo, 125 Wn.2d at 758 (requiring discharge to establish a prima facie action for the tort of wrongful discharge in violation of public policy). But see Korslund v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 181, 125 P.3d 119 (2005) (discussing “constructive discharge” positively, but not reaching the issue).
Concurrence Opinion
¶31 (concurring) — The Court of Appeals and the majority have analyzed this case as involving a public policy tort claim based on termination allegedly arising from employees engaging in “concerted activities.” This is not correct. The public policy of protecting employees’ right to engage in “concerted activities” was mentioned for the first time in the plaintiffs’ appellate brief. Although the plaintiffs framed their first claim as a cause of action for termination in violation of public policy and they asserted a second claim based upon whistleblowing, they did not identify any clear public policy involved with the right to engage in concerted activity that was violated as a result of their termination.
¶32 The test adopted in Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996), requires the plaintiffs to identify the public policy that was offended by their termination, and plaintiffs did not identify the right to engage in concerted activity as a public policy that was violated by their termination. Accordingly, I concur in the result reached by the lead opinion.
ANALYSIS
¶33 In Gardner, this court adopted Henry Perritt Jr.’s comprehensive four part test for analyzing the tort of wrongful discharge in violation of public policy. See Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities §§ 3.7-3.21 (1991). The first prong of the test requires the plaintiffs to prove the existence of a clear public policy (the clarity element). Korslund v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 181, 125 P.2d 119 (2005). This element requires a plaintiff to establish the existence of a clear mandate of public policy and is a question of law for the court. Id. The second prong of the test requires the plain
¶34 If the plaintiff produces the proof required, the fourth prong of Perritt’s test provides that the defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element). See also Collins v. Rizkana, 73 Ohio St. 3d 65, 69-70,1995-Ohio-135, 652 N.E.2d 653 (adopting Perritt’s four element test).
¶35 This case is here on review of a grant of summary judgment in favor of Nova Services, plaintiffs’ employer. In a summary judgment proceeding, the moving party bears the initial burden of showing an absence of a material issue of fact. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If the moving party is the defendant and meets the requirement of this initial showing, which may be done by pointing out to the trial court that there is an absence of evidence to support the nonmoving party’s case, then the inquiry shifts to the party with the burden of proof at trial — the plaintiff. Id. At this point, summary judgment should be granted in favor of the defendant if the plaintiff fails to make a showing sufficient to establish an element essential to the plaintiff’s case and on which the plaintiff will bear the burden of proof at trial. Id.
¶36 Plaintiffs identified two concerns allegedly showing a violation of public policy. In their first cause of action they alleged:
III. FIRST CAUSE OF ACTION WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
....
3.2 The conduct of Defendants as alleged in paragraphs 1.1 through 2.10 constitutes wrongful termination in violation of*812 public policy. Plaintiffs raised concerns about health and safety of clients, wage and hour violations and other potential violations and poor practices, the existence of which violated public policy; discouraging the conduct of plaintiffs jeopardized public policy; the Plaintiffs’ complaints led directly to their dismissals; and Defendants can show no other overriding justification for Plaintiffs’ dismissals.
....
3.4 Plaintiffs took reasonable steps to notify Brennan and Nova’s Board about their concerns to no avail. Defendants failed to provide adequate preventative and remedial measures to prevent and/or stop unlawful conduct.
Clerk’s Papers (CP) at 7-8 (emphasis added).
¶37 The facts set out in the complaint show that this first cause of action focused on the management of Nova and Executive Director Linda Brennan’s performance and behavior, but the complaint does not identify any public policy, much less any statute, rule of law, or other source setting forth public policy violated by the conduct they identified.
¶38 In Gardner, 128 Wn.2d at 941, we placed the burden on plaintiffs to prove the existence of a clear public policy. This burden is necessary because the crux of the tort is the requirement that plaintiffs prove their termination violated a clear mandate of public policy. Proof of each of the other elements of the tort depends in turn on what specific public policy has been violated by the firing. In precise terms, a plaintiff must establish a “clear mandate of public policy.” Korslund, 156 Wn.2d at 181 (emphasis added). Vague claims that “health and safety of clients, wage and hour violations and other potential violations and poor practices” violated public policy does not satisfy plaintiffs’ burden to identify and prove the existence of clear public policy, which they claim has been violated by their termination.
¶39 At the hearing on the motion for summary judgment, the trial court gave the plaintiffs the opportunity to identify the basis for their public policy tort. First the judge stated his understanding that a violation of public policy is
[Ms. Clark] believes there’s a duty to provide a decent positive work environment for their clients. . . . [I]n this case the issue is one of what the duty of this organization [(Nova Services)] was to [sic] to the public, to the community, to its employees, and to [sic] most importantly to its clients. And I think there is a public policy issue there. I think non-profits claim charitable status, they claim exception from taxes, and they claim to have a mission and purpose that’s carried out that’s intended to carry out the obligations under the internal revenue code that they have.
... I think there are also scandals related to non-profit entities where non-profit entities have essentially abrogated their responsibilities to their missions and their purpose by misusing funds, by not providing the services that their charitable purpose was set out to provide and somebody needs to call them on that and that’s what these employees were trying to do.
. . . This was an effort for these [plaintiffs] to have the board of directors hear what was really going on and that I think is a matter of public policy.
Id. at 27-29.
¶40 Judging from counsel’s argument at summary judgment and the complaint, it appears the public policy urged in plaintiffs’ first claim is a broad public policy favoring efficient management of charitable organizations. Plaintiffs claimed they were terminated for complaining about Nova’s executive director and her failure to appropriately serve the public and Nova’s clients.
¶41 Counsel’s argument at the summary judgment hearing was reiterated at oral argument in this court, where
¶42 Plaintiffs’ April 6, 2004, letter to the Nova board members also expresses this “public policy” concern about mismanagement of Nova. For example, after introducing themselves to the board, the plaintiffs first point to the board was that “Nova has not . . . truly lived up to its potential. After 20 years of operations, Nova’s accomplishments are rather modest. Simply put, Nova has under performed. . . . Unfortunately, Nova’s CEO [(chief executive officer)] has become seriously ineffective and disengaged.” CP at 73 (Aff. of Darlene Fogal, Ex. 1).
¶43 The letter outlines the failures of Executive Director Brennan in several management areas, including Brennan’s leadership style (“Effective leadership requires setting a consistently positive example by taking on the tough jobs while still delegating effectively. This is not the case at Nova.”); administrative ability (“An effective, efficient administration requires the appropriate delegation of authority and responsibility. Yet, managers at Nova often find themselves involved with trivial duties and responsibilities.”); financial acumen (“In a non-profit, the ability to raise philanthropic capital is critical to fulfilling the mission of the organization. The CEO should be involved in all aspects of fundraising, but she is not.”); board development (“[I]t appears to us that Nova’s Board is underdeveloped, undersized and kept in the dark by the Executive Director. Board development is a key area of responsibility for any Executive Director but that does not appear to be happening.”); establishing corporate culture (“Open communication is not fostered at Nova. . . . Creativity and taking initiative are discouraged rather than nurtured.”); and fostering community and government relations (“Nova has no public relations policies or program.”). Id. at 73-76.
¶45 Moreover, even if one did conclude that the plaintiffs sufficiently identified the public policy of protecting workers’ rights to engage in concerted activity, the plaintiffs also failed to establish a prima facie case with respect to the second element of the Perritt test. To meet this prong, the plaintiff must establish that discouraging the conduct in which the plaintiff engaged would jeopardize the public policy they contend was violated. As we have carefully explained, as part of this requirement, the plaintiff must establish that “other means of promoting the public policy are inadequate.” Korslund, 156 Wn.2d at 182; Hubbard v. Spokane County, 146 Wn.2d 699, 713, 50 P.3d 602 (2002); Gardner, 128 Wn.2d at 945.
¶46 Here, the plaintiffs made no attempt to show that the only way to promote the public policy of protecting the right to engage in concerted action was through a tort claim. For this reason as well the plaintiffs failed to sufficiently establish the prima facie case. That they failed to do so is most likely due to the fact that the right to engage in concerted action was, before raised on appeal, never identified by plaintiffs as the public policy at all. Regardless, this failure, too, means that the employer was entitled to summary judgment.
¶48 First, Bravo was decided before the court adopted the Perritt test, identifying the elements of the public policy wrongful discharge tort. The determination in that case, that the plaintiffs were entitled to assert a claim for wrongful discharge in violation of public policy, is based on the court’s conclusion that RCW 49.32.020 conferred substantive rights on nonunion employees to be free of interference, restraint, or coercion, and expressed important public policy conferring actionable rights on the employees. Bravo, 125 Wn.2d at 758. The court concluded from the legislature’s declaration of intent and its own construction of the statute that a discharge that violated the statute also gave rise to a tort of discharge in violation of a clear mandate of public policy. Id. Thus, the court effectively equated the right to bring an action under the statute with a right to bring the tort claim. However, the court did not engage in the inquiry whether the statute’s existing protections were adequate to protect the public policy at stake. At the time, that was simply not part of the analysis. Now, it is.
¶49 Second, while the adequacy of existing protections may in some instances be a question of law for the court, the issue here is whether summary judgment was properly granted. For this purpose, the question is whether plaintiff sufficiently countered the defendant’s motion for summary judgment by presenting a prima facie case of wrongful discharge in violation of public policy.
¶51 I concur in the result reached by the lead opinion.
In contrast, to the extent that plaintiffs identified a clear public policy, they did so in the second claim in their complaint where they asserted they had been unlawfully terminated as “whistleblowers.” (“The substantial factor in deciding to terminate Plaintiffs was their actions as ‘whistleblowers’ in complaining to the Board and to outside agencies of Defendants actions in violation of public policy.” CP at 8.). Also, some of the language in plaintiffs’ first claim can be read to suggest that they were terminated because they complained about unlawful conduct, i.e., because they were “whistleblowers”; however, their second claim more clearly identifies this theory Indeed, in the final paragraph of their April letter, plaintiffs summarize, “Please realize that we are essentially ‘whistle blowing' by sharing this information with you.” CP at 76. Plaintiffs have not challenged the trial court’s dismissal of their whistleblowing claim.
Dissenting Opinion
¶52 (dissenting) — I dissent from the lead opinion today because the conduct alleged in this case is not excluded from the public policy protecting the right to engage in concerted activity. Furthermore, I think it imprudent to determine as a matter of law that the alleged concerted activity did not cause the terminations in this case. For these reasons, I would reverse the Court of Appeals and remand for further proceedings.
ANALYSIS
¶53 This court recognizes the tort of wrongful discharge in violation of public policy as an exception to the at-will employment relationship. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 935-36, 913 P.2d 377 (1996). The tort requires a plaintiff to prove three elements: “ ‘(1) the existence of a clear public policy’ ” (clarity); “ ‘(2) that discouraging the conduct in which [the employee] engaged would jeopardize the public policy’ ” (jeopardy); “ ‘and (3) that the [protected] conduct caused the dismissal’ ” (causation). Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P.3d 119 (2005) (quoting Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002)). Upon making a prima facie showing of these elements, the burden shifts to the employer to produce some legitimate reason for the termination (justification) sufficient to create a question of fact. Id.; Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991).
¶54 I agree with the lead opinion to the extent that RCW 49.32.020 creates a public policy applicable as an exception to the general at-will employment rule. However, I part ways with the lead opinion’s extremely narrow interpretation of that policy. While chapter 49.32 RCW specifically deals with limitations on injunctive relief sought in labor disputes, this court has recognized that the policy articulated in RCW 49.32.020 offers broader protections than the specific purpose of the statute. Bravo v. Dolsen Cos., 125 Wn.2d 745, 755-57, 888 P.2d 147 (1995). The policy tracks the language of a federal statute, originally known as the Norris-LaGuardia Act, 29 U.S.C. § 102 (1932). See Nat'l Labor Relations Bd. v. City Disposal Sys., Inc., 465 U.S. 822, 834-35, 104 S. Ct. 1505, 79 L. Ed. 2d 839 (1984). Many states, including Washington, enacted “little NorrisLaGuardia” statutes, such as RCW 49.32.020, that included the language of the federal statute. Morris v. Local Union No. 494 of Amalgamated Meat Cutters & Butcher Workmen of Spokane, 39 Wn.2d 33, 40, 234 P.2d 543 (1951) (Finley, J., dissenting); see generally Eileen Silverstein, Collective Action, Property Rights and Law Reform: The Story of the Labor Injunction, 11 Hofstra Lab. L.J. 97 (1993). Congress incorporated the same language into section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157. This court has referred to section 7 as the “federal analogue” of RCW 49.32.020 and has considered federal case law interpreting the meaning of concerted activities in regards to section 7 as persuasive authority in interpreting RCW 49.32.020. Bravo, 125 Wn.2d at 754-55.
¶55 Further, the phrase “or other mutual aid or protections” includes a broader purpose than formal union activities or collective bargaining efforts.
¶56 Justice Charles Johnson incorrectly concludes that an actual violation of RCW 49.32.020 is a threshold require
B
¶57 The jeopardy element requires a showing that the plaintiff engaged in conduct that “directly relates to the public policy, or was necessary for the effective enforcement of the public policy.” Gardner, 128 Wn.2d at 945 (emphasis omitted). This court has recognized four general types of conduct involved in wrongful termination actions, including, “situations where employees are fired for refusing to commit an illegal act, for performing a public duty or obligation, for exercising a legal right or privilege, or for engaging in whistleblowing activity.” Korslund, 156 Wn.2d at 178. Because Ken Briggs and his fellow employees (Employees)
¶58 The Employees were terminated for exercising a legal right to engage in concerted activities under RCW 49.32.020. The Employees engaged in two kinds of concerted activities: communicating with the board of directors (Board) and collectively walking off their jobs. The lead opinion incorrectly holds that neither of these activities in this context constituted concerted activities afforded protection. I dissent because in my view the Employees exercised a legal right as the law did not prohibit them from engaging in such collective actions.
¶59 Generally, concerted activity means “action in concert” or simply acting together. Bravo, 125 Wn.2d at 752. Of course, not all action taken together is protected concerted activity. See Trompler, Inc. v. Nat’l Labor Relations Bd., 338 F.3d 747, 748 (7th Cir. 2003) (noting that concerted activities “obviously cannot be read literally” to condone illegal behavior). On the other hand, federal courts have protected a broad range of conduct as concerted activity and have limited protection only when the conduct is “unlawful, violent, in breach of contract, or otherwise ‘indefensible.’ ” Id. (“the mere fact that [concerted activities] are not ‘reasonable’ does not forfeit the protection of the [NLRA]”); Wash. Aluminum, 370 U.S. at 16-17.
¶60 The Employees engaged in concerted activity by acting together to communicate their concerns to the Board. Concerted activity includes listing grievances or complaints. See FiveCAP, Inc. v. Nat’l Labor Relations Bd., 294 F.3d 768, 782-84 (6th Cir. 2002) (holding that circulating a petition constituted concerted activity). Nova Services claims that the Employees’ letters to the Board were not protected because its internal policies forbid employees from communicating directly with the Board and that all grievances should have been presented to Nova’s executive director, Linda Brennan. Clerk’s Papers (CP) at 143; Br. of Resp’ts at 2. However, an internal rule or policy does not
¶61 In any event, the Board did not initially forbid the Managers from directly communicating with it. In fact, the Board responded to the Managers’ first letter by allowing the Employees to address the Board in person. In addition, the Board hired an attorney to investigate the complaints and a human resource consultant to improve Brennan’s relationship with the Employees. Therefore, the Board itself did not enforce its rule about prohibiting employee communication.
¶62 The Employees also engaged in protected activity by walking off their jobs for their mutual aid and protection. An employee walkout in protest of working conditions has long been recognized as a protected concerted activity for mutual aid or protection, even when not connected with a formal union protest. In Bravo, this court held that nonunion employees who participated in a strike after attempting to negotiate for better working conditions were engaged in concerted activity and protected for exercising a legal right under RCW 49.32.020. 125 Wn.2d at 756-58. In Washington Aluminum, the Supreme Court upheld the right of unorganized employees to engage in a spontaneous walkout to protest a working condition (the temperature setting in a factory) without first giving notice to their employer. 370 U.S. at 15-17; see also Halstead, 940 F.2d at 70 (“Employees who collectively refuse to work in protest over wages, hours, or other working conditions are engaged in ‘concerted activities’ for ‘mutual aid or protection’ within the meaning of the [NLRA].”). Therefore, at-will employees do not lose legal protection for engaging in a collective walkout.
2
¶64 Beyond a lack of prohibition, the conduct of exercising a legal right must directly relate to the public policy. In the present context, the public policy articulated under RCW 49.32.020 protects concerted activity directly related to the “terms and conditions of employment.” In Bravo, this court stated that concerted activities are protected when employees undertake action “for the purpose of improving their working conditions.” 125 Wn.2d at 752. Such language is consistent with federal case law interpreting section 7 of the NLRA. See Wash. Aluminum, 370 U.S. at 14 (“[T]he policy of the [NLRA is] to protect the right of workers to act together to better their working conditions.”).
a
¶65 The lead opinion holds in part that the Employees’ conduct was not protected because it did not relate to a term or condition of employment. Lead opinion at 804.1 disagree. The evidence presented by the Employees demonstrates that the alleged motivation behind their concerted activities related to their dissatisfaction with Brennan’s professional performance as executive director of Nova. In their initial letter to the Board, the Managers criticized Brennan’s management of Nova and pointed out specific concerns relating to their working conditions, including lack of adequate supervision, CP at 73 (“leav[ing] managers to do . . . work in isolation and without support”); failure to properly delegate authority, id.', failure to hire needed staff, CP at 73-74; failure to accurately apply accrued sick leave in violation of the Fair Labor Standards Act of 1938 (FLSA),
¶66 These articulated concerns regarding delegation, communication, hiring of staff, and financial management related to the Employees’ working conditions by their own terms. In Bravo, we recognized that “better wages, improved medical coverage, better treatment from supervisors, and lunch and rest breaks” constituted “terms and conditions of employment,” for which employees were protected in attempting to negotiate with their employer. 125 Wn.2d at 748-49. Similarly, the accrual of sick leave and compliance with the FLSA directly relate to a term of employment. See, e.g., Nat’l Labor Relations Bd. v. Pyromatics, Inc., 677 F.2d 24, 26 (6th Cir. 1982) (recognizing concerted activity by employee who circulated a petition to fellow employees for increased vacation time). Likewise, a lack of adequate supervision and lack of communication with a supervisor are analogous to “treatment from supervisors.” Bravo, 125 Wn.2d at 748; Trompler, 338 F.3d at 749. Proper supervision, delegation of authority, and communication often can affect job performance and general satisfaction in the work environment.
¶67 Finally, a director’s professional competency and ability to manage a company are also proper employee concerns. Federal courts have held that employee concerns regarding a supervisor’s conduct and management of a company may directly relate to working conditions. See Trompler, 338 F.3d at 749 (“A complaint that a supervisor’s conduct is impairing the terms or conditions of the employment of the workers whom he supervises is, however, a legitimate subject for concerted activity.”); FiveCAP, 294 F.3d at 783-84 (holding that a petition seeking the removal of the executive director and financial officer for failure to
¶68 Brennan’s own statements also acknowledge that the Employees’ concerns related to improving working conditions, rather than mere personal differences. After the Board took steps to resolve the Employees’ conflict with Brennan, Brennan herself expressed her commitment to address the concerns raised, which she summarized as “poor morale, staff/client ratio, pay rates, and Nova’s performance management system to name a few.” CP at 300. Brennan further pledged her commitment “to improve the workplace for all employees.” Id. Viewing the record in this case in the light most favorable to the Employees, the lead opinion should have concluded that the alleged concerns raised by the Employees related to the improvement of their working conditions at Nova.
b
¶69 The lead opinion imports a line of cases to our concerted activity jurisprudence that goes too far in narrowing the exception. Even if I agreed that the exception should be narrowed, the lead opinion’s resulting analysis misses the question presented in this case.
¶70 Although courts have recognized that employees generally are not protected for engaging in concerted activ
¶71 I would hold that employee protests over management personnel decisions are protected when the decision relates to the employees’ working conditions. The main purpose of the public policy protecting concerted activity is to give employees the ability to pressure their employer to address the terms or conditions of employment that they otherwise would have no power to change. Of course, the right to protest such management decisions does not mean that employees have the right or power to make such
¶72 Courts also have recognized that employees are protected in engaging in concerted activity for the purpose of seeking the reinstatement of a co-worker. See Nat’l Labor Relations Bd. v. P.R. Rayon Mills, Inc., 293 F.2d 941, 946 (1st Cir. 1961) (“[E]mployees are also free to use concerted activities to seek reinstatement of the employee.”); Nat’l Labor Relations Bd. v. Pioneer Plastics Corp., 379 F.2d 301, 307 (1st Cir. 1967) (“There is no question that employees may spontaneously agree to cease work in protest against their employer’s conduct toward fellow employees and that such concerted action is protected activity.”). Here, the Managers asserted in their first letter to the Board that they would collectively leave if Brennan terminated any one of them for complaining to the Board. The record indicates that the Employees walked out almost immediately after Briggs and Robertson were terminated, which raises an inference that the walkout related to the terminations.
¶73 Based on my review of the record, I cannot conclude as a matter of law that the Employees’ concerted activity did not relate to a term or condition of employment. Of course, such a conclusion does not establish that the Employees’ conduct did in fact relate to their working conditions. Korslund, 156 Wn.2d at 182 (“[T]he question whether
C
¶74 With regard to the question of causation, the lead opinion holds that the Employees, except Briggs and Robertson, have no claim for wrongful discharge because they voluntarily resigned and therefore were not terminated at all. I disagree because the Employees have sufficiently raised a question of material fact that they did not voluntarily resign and that Brennan terminated them for engaging in protected concerted activity.
1
¶75 As an initial matter, the record clearly raises a question of fact regarding the termination of Briggs and Robertson. Brennan affirmatively terminated Briggs and Robertson. CP at 61. In her response to interrogatories, Brennan claimed that Briggs and Robertson were terminated, in part, for “utilizing] company time to enlist the support of fellow managers to undermine the Executive Director’s authority and position.” CP at 143. This statement itself raises a question whether Brennan terminated Briggs and Robertson for acting in concert with their fellow managers.
2
¶76 With regard to the remaining employees, absent Bader, the lead opinion finds the causation element lacking. Lead opinion at 806. I disagree. The termination of these employees occurred when they were replaced after walking out. Because they were exercising a protected right, subse
¶77 Brennan’s own understanding that the Employees voluntarily resigned does not determine the Employees’ right to protection. See P.R. Rayon Mills, 293 F.2d at 945-46 (“The right of employees to engage in activity guaranteed by Section 7 of the [NLRA] should not be subject to defeasance merely because the employer believes he is not violating the Act in restraining the employee in his exercise of such rights.”). Brennan’s state of mind only becomes relevant for consideration once the Employees meet the causation element, and the burden shifts to Nova to show a legitimate reason for the termination. See Korslund, 156 Wn.2d at 178.
¶78 The fact that the Employees stated that they would not return to work until the Board met their requests does not necessarily determine that they had permanently resigned from Nova. Federal courts have refused to interpret such words in isolation and have rejected them as justification for an employer’s decision to terminate or replace workers who engage in a walkout. See Halstead, 940 F.2d at 70 (“An employee’s use of the word ‘quit’ in a mass walk out does not always mean that the employee intended to terminate his or her employment.”). For example, in National Labor Relations Bd. v. Martin, 207 F.2d 655, 658 (9th Cir. 1953), the court rejected the employer’s claim that the employee voluntarily resigned after claiming he “was quitting” if his supervisor did not respond in 24 hours to his and fellow employees’ demands regarding bonus pay. The court noted that when the employee left work that day, he did not follow the “customary procedure” (taking his tools with him) for a permanent resignation. Id. The court concluded that the employer’s decision to treat the employee’s statement as a permanent resignation amounted to a retaliatory discharge for participating in concerted activities. Id. at 659. Likewise, in Halstead, the court determined that nine employees who walked off their jobs had not resigned, even though they indicated that they would not return to work
¶79 I find this line of reasoning compelling. An employee does not lose his or her right to engage in collective activity solely by stating his or her intent to quit or leave during the course of a walkout. An employee’s stated intention to quit or refusal to return to work during a walkout certainly is a factor in determining whether the employee has permanently resigned. However, courts must also consider whether the employee simply made such a statement as part of an overall effort to improve his or her labor conditions. See id.
¶80 In this case, the walkout occurred immediately after Brennan fired Briggs and Robertson allegedly for insubordination and for gathering support from fellow workers. From these facts I assume, for purposes of summary judgment, that the Employees reasonably inferred from the terminations that any further attempt to engage in concerted activity against Brennan would subject them to termination for the same reasons. In other words, the termination of Briggs and Robertson effectively cut off the ability of the remaining Employees to engage in protected concerted activity for the improvement of their working conditions without risking their own jobs. The walkout remained the last option they had to protect themselves against Brennan’s alleged retaliation. While the Employees
¶81 My colleague Justice Charles Johnson acknowledges that this court has opined that constructive discharge may support a wrongful discharge claim. Concurrence (C. Johnson, J.) at 808 n.7. In Korslund, we recognized that we never considered or rejected a constructive discharge theory. 156 Wn.2d at 179. The Korslund plaintiffs alleged that they were forced to take extended medical leave because of actions taken against them for engaging in protected activity. Id. at 176. We recognized such allegations may support a claim for wrongful discharge: “Deliberately creating conditions so intolerable as to make the employee so ill that he or she must leave work permanently is functionally the same as forcing the employee to quit.” Id. at 180 (also noting, “[t]he leave must be, in other words, comparable to termination of employment”). I see no reason to discard the Korslund dicta as an incorrect statement of law; rather, I believe it to accurately represent how this court should and would analyze a wrongful termination by constructive discharge claim.
¶82 Whether the employees had been terminated was the threshold question in Korslund; had we held to the contrary, it would not have been necessary to address further the elements of the tort of wrongful discharge as we did. Id. at 181-82. Thus, constructive discharge, if proved, suffices as discharge for purposes of the public policy tort.
¶83 The fact that the Employees requested the reinstatement of fellow workers and the termination of Brennan indicates that the walkout was a continuation of their ongoing efforts to effectuate some change in their own working conditions rather than simply to abandon their jobs. The Employees’ statement that these requests were
¶84 Ultimately, whether an employee who engages in a walkout has voluntarily resigned presents a question of fact that must be determined in light of the circumstances of each case. The right to walk out of a job is not unlimited and must relate to some concerted activity for the purpose of improving working conditions. However, we believe that the reasonableness of the action and the employer’s response will largely turn on the facts of each case. Having recognized that walkouts and strikes fall within the scope of concerted activity protected by RCW 49.32.020, we cannot determine as a matter of law that the Employees were not protected in walking off their jobs.
3
¶85 Employee Bader’s situation requires specific attention regarding causation because she technically did not participate in the walkout. After Briggs and Robertson were terminated and before the remaining Employees walked out, Bader alleged that she informed Brennan of her intent to resign “if things were not going to get better at Nova.” CP at 160. According to Bader’s affidavit, Brennan asked Bader if she would “stay around long enough that she could replace me.” Id. Later that day, Bader alleged that Brennan asked Bader, before she left, if she could be personally loyal to Brennan. Id. Bader responded that she could be loyal to Nova but not to Brennan personally. Id. At this point, Bader alleges that Brennan asked her to leave by the end of the day. Id.
CONCLUSION
¶87 This court has expressly recognized a public policy protecting the right of nonunion employees to engage in concerted activities for the purpose of improving working conditions. The record in this case presents a genuine question of material fact as to whether the Employees’ concerted activities directly related to the improvement of their working conditions. Furthermore, the record also presents a question of fact as to whether Brennan terminated the Employees for engaging in protected concerted activity or whether some of the Employees voluntarily resigned. Finally, RCW 49.32.020 does not expressly exempt managers or supervisors from the right to engage in concerted activities. For these reasons, I would reverse the Court of Appeals and remand to the trial court for further proceedings.
“Collective bargaining” is as a term of art in the context of labor law, which generally refers to an employer’s statutory obligation to formally negotiate with
The Employees are petitioners Ken Briggs, Judy Robertson, Mark Johnson, Shirley Bader, Beverly Nunn, Jami Smith, Margaret Clark, and Valerie Brack. Briggs, Robertson, Johnson, Bader, Nunn, and Smith held self-described management positions at Nova and are referred to collectively hereinafter as “Managers.” Clark and Brack held nonmanagement positions. The two remaining petitioners, Odalys Castillo and Pam Zeller, are not parties to this appeal. See lead opinion at 798 n.1.
The lead opinion cites to Abilities & Goodwill for the proposition that collective requests to hire or fire management fall outside of the concerted activities exception. Lead opinion at 804. However, the court in Abilities & Goodwill adopts a multifactored approach that recognizes, among other factors, the dichotomy between protests regarding upper management and lower level supervisory management. Because Brennan was the executive director, such a balancing test may tip in Nova’s favor. However, such a holding would require an analysis of the workplace structure beyond that provided in the lead opinion.
Ultimately, this case is about whether the Employees are without recourse for being terminated for engaging in this protest, not whether or not employers must act on the protestations of their respective employees’ concerns about members of management. Boards of directors are free to ignore the protests, reject the underlying requests or demands, or even discharge the employees, but if and when boards choose the latter option, they will potentially be liable for wrongful termination under the concerted activity exception.
In their memo in opposition to summary judgment, the Employees contend that they walked out to protest working conditions and expressly deny specifically protesting the termination of Briggs and Robertson. CP at 201. However, in the first letter to the Board, the Managers stated that they would walk out if Brennan retaliated against any one of them for expressing their concerns. Furthermore, the second letter to the Board expressly demanded Briggs’s and Robertson’s reinstatement. As such, the protected nature of the conduct raises a question of fact.
Generally, the nonmoving party cannot rely solely on “speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value.” Retired Pub. Employees Council of Wash. v. Charles, 148 Wn.2d 602, 612, 62 P.3d 470 (2003). However, Bader’s affidavit relies on personal knowledge of a critical event in this case. As such, her affidavit presents arguable facts, not merely unsupported conclusions.