BURKE & THOMAS, INC., ET AL, Petitioners, v. INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS, ET AL, Respondents.
No. 45995
En Banc. Supreme Court of Washington
October 11, 1979
Reconsideration denied January 16, 1980
88 Wn.2d 762
HOROWITZ, J.
Reaugh, Hart, Allison, Prescott & Davis, by Keith R. Baldwin, for respondents.
On the eve of the Labor Day weekend in 1976 the respondent International Organization of Masters, Mates and Pilots, the licensed bargaining agent for deck officers of the Washington State Ferry System, called a strike of its members. During the entire weekend these public employees either did not report to work or refused to perform their tasks, causing a complete cessation of normal ferry services for the duration of the holiday weekend. Emergency ferry service was provided for Vashon and San Juan Islands. It appears from the record that the strike appears to have been called because the employer, the Washington Toll Bridge Authority, unilaterally changed the wording of
The State, the Washington Toll Bridge Authority, and the Washington State Highway Commission immediately obtained a temporary restraining order and order to show cause in the Superior Court for King County, restraining the strike action and requiring the union to appear and show cause why a preliminary injunction should not issue. The petition for an injunction was subsequently dismissed, however, when the employees voluntarily resumed work following the Labor Day weekend.
In November 1976 petitioners here filed a class action for damages in the Superior Court for San Juan County. The named plaintiffs are Washington corporations doing business in San Juan County and individual residents of Island and San Juan Counties, who are dependent on the ferry system for transportation and who allegedly derive a substantial portion of their incomes from tourism. The named plaintiffs claim to represent the class of all persons in the two counties who suffered inconvenience or economic harm from the strike.
The complaint alleged petitioners and the undetermined members of the class suffered inconvenience, disruption, and interference with their daily lives, as well as economic disruption and harm as a result of the unauthorized strike.1 It further alleges the businesses and residents of the San Juan Islands were especially harmed by the strike because of their reasonable expectation of increased business and income from the heavy tourist traffic normally experienced over the Labor Day weekend. Merchants and resort owners stocked extra supplies, some perishable, in anticipation of
In response to the complaint the union filed a motion for summary judgment under Superior Court Civil Rule 56 on the ground the complaint failed to state a claim upon which relief could be granted. At this state of the proceedings, before the union had filed an answer, an appropriate motion would have been a motion to dismiss for failure to state a claim upon which relief could be granted under Superior Court Civil Rule 12. This is especially so since the union did not attach any affidavits to its motion, and thus the only documents before the court were the complaint and the motion, which was made to test the sufficiency of the complaint. In response to the union‘s motion for summary judgment, however, the plaintiffs filed a memorandum of law with affidavits attached. The trial court thereafter properly treated the motion as one for summary judgment under Superior Court Civil Rules 12(c) and 56. Thus, the complaint was properly dismissed if the pleadings, admissions, and affidavits on file, viewed in the light most favorable to the plaintiffs, showed there was no genuine issue as to any material fact, and that the union was entitled to judgment as a matter of law. Marino Property Co. v. Port of Seattle, 88 Wn.2d 822, 824, 567 P.2d 1125 (1977);
On appeal to the Court of Appeals the plaintiffs attempted to cure the omissions in their complaint by arguing two specific causes of action: (1) tortious interference with business relationships, and (2) breach of duty under a third-party beneficiary contract.3 The Court of Appeals held plaintiffs failed to meet the requisite standard on the motion for summary judgment in that they failed to allege or otherwise put forward sufficient facts to raise a genuine issue of material fact as to either alternative theory. The dismissal was therefore affirmed. This court granted the plaintiffs’ motion for discretionary review. We affirm.
Two specific causes of action are alleged by plaintiffs (hereinafter referred to as petitioners), neither of which will lie under the circumstances of this case, as discussed below. A broader question of public policy is raised, however, by the arguments presented to this court in oral argument and by the applicable statutory and decisional law. That question is whether courts should fashion a new remedy which would allow private parties incidentally injured by strikes of public employees, prohibited by contract or law, to recover damages for their injuries, and thus enter the arena of public employee labor relations. We are persuaded by consideration of the unique nature of labor relations in the
I
Petitioners first claim that as members of the public they are third-party beneficiaries of the collective bargaining agreement between the union and the public employer, and may therefore maintain an action against the union for breach of its contractual promise not to strike. The creation of a third-party beneficiary contract requires that the parties intend that the promisor assume a direct obligation to the intended beneficiary at the time they enter into the contract. American Pipe & Constr. Co. v. Harbor Constr. Co., 51 Wn.2d 258, 266, 317 P.2d 521 (1957). No such intent may be inferred from the facts alleged here.
Collective bargaining between a union representing public employees and the public employer is a tool for improving the relationship between employer and employee. See
II
Petitioners next contend they may maintain a tort action against the union, specifically for tortious interference with their business relationships. We do not question that a public employee union may be held to answer for its torts. See Board of Educ. v. Farmingdale Classroom Teachers Ass‘n, 38 N.Y.2d 397, 343 N.E.2d 278, 380 N.Y.S.2d 635 (1975) (abuse of process); Caso v. District Council 37, 43 App. Div. 2d 159, 350 N.Y.S.2d 173 (1973) (creation of public nuisance). In this case, however, petitioners have not alleged sufficient facts to state a claim for the specific tort of interference with petitioners’ business relationships.
Proof of this tort requires a showing of an intent to interfere with the private business relation. See Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964). It is the nature of strikes, of course, whether by public or private employees, that members of the public will be affected, and perhaps economically harmed. This result is foreseeable to the striking union members, and we do not doubt that the striking ferry workers here could foresee the disruption of
Recognizing the nature of a strike as a tool in the bargaining process, courts which have considered the question have held that, in the absence of specific evidence to the contrary, strikes are not to be construed as demonstrating an intent to interfere with the business relations of third parties. Titus v. Tacoma Smeltermen‘s Local 25, supra at 465-66; Jamur Prods. Corp. v. Quill, 51 Misc. 2d 501, 273 N.Y.S.2d 348 (1966). See also Isbrandsten Co. v. Local 1291 of Int‘l Longshoremen‘s Ass‘n, supra. No contrary authority has come to the attention of this court.
In this case petitioners have alleged no facts tending to show that the direct object of the ferry workers’ strike was to interfere with petitioners’ business relations, rather than to bring pressure to bear on the employer in the course of collective bargaining. Indeed, as noted above, the record suggests that the strike was directly related to a perceived failure of the employer to bargain in good faith. This evidence is contained in an affidavit petitioners themselves furnished to the trial court, and is unchallenged. Petitioners have thus failed to allege or put forward facts necessary to support a finding of the requisite tortious intent, and thus to withstand a motion for summary judgment on their claims for tortious interference with their business relations under established tort doctrine.4
Our conclusions as to the grounds for the relief sought here would ordinarily require denial of such relief. Underlying petitioners’ arguments in briefs and oral argument, however, is the strong suggestion that this court should expand tort doctrine to permit the recovery of damages where the union could reasonably foresee that economic and other harm would befall those businesses and individuals which rely on the ferry system to carry tourist traffic to the islands in Puget Sound. Despite the obvious potential for harm flowing from public employee strikes, existing precedent uniformly rejects such an expansion, and supports instead a doctrine of judicial restraint in the area of public employee labor relations. See Lamphere Schools v. Lamphere Fed‘n of Teachers, 400 Mich. 104, 252 N.W.2d 818, 84 A.L.R.3d 314 (1977) (no private cause of action by employer for damages flowing from prohibited public employee strike); Jamur Prods. Corp. v. Quill, supra (no private cause of action by third parties for damages flowing from prohibited public employee strike). See also School Comm. v. Westerly Teachers Ass‘n, 111 R.I. 96, 299 A.2d 441 (1973); School Dist. v. Holland Educ. Ass‘n, 380 Mich. 314, 157 N.W.2d 206 (1968) (judicial restraint to be exercised in determining whether to issue injunction sought by employer against prohibited public employee strikes). We find this authority persuasive, for the reasons set out below.
To put this problem in context, it is necessary to consider the nature of labor relations in the public sector, particularly with regard to strikes. Strikes by public employees have traditionally been held to be illegal under the common law, and have not been sanctioned by state legislatures. See generally A. Aboud & G. S. Aboud, The Right to Strike in Public Employment (1974); Council of State Governments, Public Sector Labor Relations (1975); Practising Law Institute, New Trends in Public Employee Organizing and Bargaining (1976); Practising Law Institute, Strikes and Other Concerted Activity (1973); R. Smith, H. Edwards, & R. T. Clark, Jr., Labor Relations in the Public Sector
The long and difficult process of establishing and maintaining labor peace in the public sector has led to significant changes in public employee labor relations in recent years. Representation of public employees is increasingly dominated by statutory schemes for collective bargaining and dispute resolution. Our own code reflects this development, containing a multitude of statutes with both specific and general applicability to various groups of public employees. See
In this heavily regulated area of labor relations, some significant trends may be seen. Recognizing the increasing problem of public employee strikes used as a tool to create
Inherent in the doctrine of judicial restraint is a recognition that the delicate balance of labor relations is now primarily the province of the legislature, and that the schemes created by statute for collective bargaining and dispute resolution must be allowed to function as intended, without the added coercive power of the courts being thrown into the balance on one side or the other. As noted by the Rhode Island court in Westerly, judicial intervention by providing ex parte injunctive relief in every case of an illegal strike “can make the judiciary an unwitting third party at the bargaining table and a potential coercive force in the collective bargaining processes.” School Comm. v. Westerly Teachers Ass‘n, supra at 104.
This reasoning has direct application to the problem before the court here. We are asked to expand the established doctrine of tort law to allow recovery of damages by parties incidentally injured by an unauthorized public employee strike. Yet to do so would be to create a weapon which could conceivably be used by both sides to the
The reporters for the Restatement (Second) of Torts have recognized the inapplicability of developing tort principles to the field of the labor relations:
Obviously, the law of labor disputes and their effect in interfering with contractual relations has ceased to be regarded as a part of Tort Law and has become an integral part of the general subject of Labor Law, with all of its statutory and administrative regulations. . . .
4 Restatement (Second) of Torts, introductory note, at 2 (1979). The new Restatement thus omits any statement of labor disputes as related to the tort of interference with business relations.
An illustration of the merger of wrongful labor conduct into the law of labor relations is found in the federal National Labor Relations Act,
Our conclusion that a rule of judicial restraint is appropriate in the creation of remedies in the area of public employee labor relations was reached by the Supreme Court of Michigan in a decision holding there would be no private cause of action by the employer, a party to the collective bargaining agreement, for damages against the union flowing from a public employee strike. Lamphere Schools v. Lamphere Fed‘n of Teachers, supra. In that case
Courts venture into dangerous and basically unchartable waters when they “tinker” with existing legislative schemas such as [Michigan‘s public employment relations act]. The precarious and uneasy balance of labor-management power which exists in the public labor relations sector could be easily upset. Neither law nor reason gives basis for any additional modification of the Legislature‘s exhibited intent to limit remedies available in this situation.
Lamphere Schools v. Lamphere Fed‘n of Teachers, supra at 131. The court thus followed a rule of restraint in the creation of judicial remedies.
The ferry workers in this case were subject to the jurisdiction of the public employment relations commission for adjustment of all labor disputes, complaints and grievances.
Creation of a cause of action on behalf of third parties (the question before this court) would have a similarly detrimental effect on the commission‘s authority. First, liability of the union to remote persons for damages flowing from its conduct could render the commission‘s adjustment a
We must also bear in mind that the potential sanction a private cause of action would create would not be limited in its effect to penalizing a union which strikes in violation of its collective bargaining agreement or statute. Should the state employer fail to bargain in good faith or otherwise breach its duty under contract or statute, it may equally be liable under the tort action proposed here. Furthermore, the existence of such an action would complicate the bargaining process substantially. As noted by the Michigan court:
To recognize alternative tort remedies would result in a substantial negative impact upon [the legislative goal of prompt and fair resolution of disputes]. It would encourage future [employer] inaction. Eventual settlements could be prolonged pending the resolution of multiple tort claims and counterclaims. The inevitable result would be to create labor law logjams in our courts and, at the same time, to exacerbate labor-management disputes.
Lamphere Schools v. Lamphere Fed‘n of Teachers, supra at 131.
It need hardly be said that indemnification for tort liability would or could quickly become a subject for bargaining which every public employee union would or could insist upon as a clause in its contract thus creating costly burdens to one or another of the parties thereby complicating further the bargaining process.
Furthermore, where injunctive relief is granted violations of the injunction constituting contempt of court will be punishable pursuant to the criminal or civil contempt statutes (
We conclude all factors considered, that in view of the delicate balance to be sought in public employee labor relations, and of the legislature‘s active role in regulating this process, that in the absence of a legislatively created cause of action for damages sustained by third parties, a rule of
Affirmed.
UTTER, C.J., and WRIGHT and WILLIAMS, JJ., concur.
HICKS, J., concurs in the result.
DOLLIVER, J. (concurring)—I agree with the result, but concur with Parts I and II only. Part III is not necessary and discusses issues we need not determine here.
ROSELLINI and BRACHTENBACH, JJ., and RYAN, J. Pro Tem., concur with DOLLIVER, J.
Reconsideration denied January 16, 1980.