Large v. Acme Engineering & Manufacturing Corp.
790 P.2d 1086
Okla.
1990
Check Treatment

*1 = = = (Table 2, Guides, ed., 89) 4.75 1. 1. AMA 2d FVC at (Table 4, 6, 3.85 at FEVi (Table at 81.0% FEVi/FVC The for FVC is the table-derived value lower limit normal for FVC minus the 95% — = 1.12 Confidence Interval or 4.75 3.63 1. the table-derived value for lower limit normal minus the 95% FEVi FEVi — = Confidence Interval or 3.85 0.842 3.01 1. is the value lower limit normal table-derived FEVi/FVC FEVi/FVC — = minus the Confidence Interval 8.28 95% 81.0% 72.7%. they “The are spirometry patients results for black divided 0.9 before should be compared Guides, ed., predicted at 89. values.” AMA 2d CLAIMANT’S ADJUSTED SPIROMETRY RESULTS: = 3.89 1. 1./0.9) (3.50 FVC = (3.11 1./0.9) 1. FEVi = 89% (3.46/3.89) X FEVi/FVC CONCLUSION: ventilatory claimant’s function test range: results all within the normal Claimant’s values Lower limit normal 1.

FVC 3.89 3.63 1. 3.46 1. 3.01 FEVi 89% 72.7% FEVi/FVC LARGE, Appellant, Michael AND MANU

ACME ENGINEERING CORPORATION,

FACTURING

Appellee.

No. 66098.

Supreme Oklahoma.

April *2 AFL/CIO, Employee’s Local 275.

sociation collective-bargaining protected by employ- agreement between the Union and er. job.

Employee injured was while on the compensation claim and He filed a workers’ a permanent was to have suffered found by a disability. The award entered partial Compensation judge the Workers’ Court subsequently appeal sustained Compensation three-judge Workers’ panel. Employer then set- employee accepting by tled the matter employer. cash settlement from finalized, em- After the settlement was exam- ployer demanded that ined a new doctor to determine regular perform his physical ee’s fitness in the This doctor was involved duties. original compensation employee’s workers’ Contrary opinion of doctors claim. employee during time treating compensation was heard above claim courts, em- the new doctor determined that physically unable to ployee was that his previous his duties and employment as a machinist continued him- only a health hazard stituted self, as well. but to others the new basing its decision on Allegedly employer notified report, medical option exercising its collective-bargaining agreement under the employee to other duties. to transfer to a not covered proposed transfer was Howerton, Kelly, Kelly & Michael E. agreement with protected the Union Muskogee, appellant. for pay lower rate with employer and was at a III, Hall, Jr., B. Wolfe D. Frank Carl Upon being notified fringe no benefits. Fallis, Nichols, Wolfe, Stamper, Nally & transfer, proposed the conditions Inc., Tulsa, appellee. for filed agree employee refused through representa- union grievance SIMMS, Justice. sec- in This resulted tives. .the change order, joba at no in ond transfer retaliatory discharge alleging Action Again, employee loss benefits. seq. pay The- of et of 85 O.S.1981 violation griev- refused, appropriate union filed the dispute. are not background facts action also this ances and commenced Large (here- Plaintiff/appellant, Michael court, retaliatory, “con- alleging a district at all times relevant “employee”) inafter discharge. structive” employed a machinist case responded to Employer Engineering and defendant/appellee, motion a combined (hereinafter petition with trial court Corporation Manufacturing state a claim for failure member of dismiss Employee is a “employer”). 12 O.S. granted under which relief International As- Metal Workers’ the Sheet or, 2012(B)(6) recognized providing Supp.1984 in the alterna- these statutes as remedy tive, for a “constructive” summary judgment. Employer al- significant It is this case that the trial leged no termination as that there had been presented showing was not with facts seq., et recognized under 85 O.S.1981 5§ *3 Here, employment. an actual cessation of subject mat- and that the state court lacked significant thing that can said the most jurisdiction employee’s cause ter because employee’s employee’s about claim is that action, any, pre-empted of if Feder- employment form of was to be altered Employer attached numer- al Labor law. proposed question. transfer in support of its ous affidavits and exhibits motion. The trial court sustained jurisdictions There are which have summary judgment making er’s motion for discharge theory adopted constructive as a (1) specific findings that: had not recovery, they generally have limit- of but contemplation been within the application to the context of a ed its breach (2) seq., et and: employment of 85 O.S.1981 5 contract context. § remedies, any, subject employee’s if were courts, instance, applied Federal procedures to the within the collective bar- objective deciding when wheth- standard were, therefore, gaining agreement and discharge er a constructive occurs. The pre-empted by Employee law. now federal courts have said that need appeals that determination the trial employer subjectively not show that court. resign. intended to force ' discharge is shown when the facts Such question We find the determinative person that “a of the case show addressed is whether an which must be employee’s position have felt employee has a cause of action Okla- quit he forced to because of intol- that was retaliatory, homa law for a “constructive” discriminatory working condi- erable tions.” v. Nationwide Insurance Watson plaintiff prima A make a must fa- (citations omitted). Co., supra, at 361 discharge by provid retaliatory case of cie Working conditions must be so difficult or filing evidence which shows person in unpleasant that a reasonable significant a claim was a factor employee’s shoes would have felt com- employment. from termination pelled resign. v. Garner Wal-Mart Forrest, Okl., (1987) P.2d Elzey v. (11th Cir.1987) Stores, Inc., 807 F.2d 1536 added). (emphasis prima A case of facie added); (emphasis Bourque see also: v. discharge made retaliatory is not when Co., 617 Manufacturing Powell Electrical termination plaintiff merely shows that his (5th Cir.1980); F.2d Alicea Rosado contemporaneous” with was “somewhat (1st Garcia-Santiago, v. 562 F.2d filing compensation of a workers’ Cir.1977). Forrest, supra, Elzey claim. v. at 1003. The federal courts often see constructive Thompson Medley Handling v. Material allegations in Title discharge the context of Co., Okl, (1987). For exam 732 P.2d 461 employment rights VII1 civil violations O.S.1981, 5, seq., ple, Title et does not § relationships. See: v. Nationwide Watson operate employers who dis to sanction Co., (9th Cir.1987); 823 F.2d 360 Insurance charge employees for excessive absentee Stores, Inc., supra. v. Garner Wal-Mart if the are caused ism even absences alleging In cases compensated injuries. Pierce v. Franklin through discriminatory practices, federal Co., Okl., (1987). Electric 737 P.2d 921 employee/plain courts have stated that the factors, making The most basic element in aggravating tiff some “must show prima pattern out a case for dis of discrimina such as a continuous facie Smith, charge there must be a tory in Oklahoma is that treatment.” Satterwhite (9th Cir.1984); employment. 1380, 1382 None of our from Clark (D.C.Cir.1981). Marsh, seq. F.2d construing cases 85 O.S.1981 5 et 2000e, seq. 1. 42 U.S.C. et “single unnecessary

A isolated instance” discrimina- fore address issue pre-emption. mat- tion has been held as insufficient as a federal finding of construc- ter law to Accordingly, judgment of the District discharge. Glasgow Georgia tive Pacif- Muskogee County AFFIRMED. Corporation, 103 P.2d ic Wash.2d Cleland, (1985); Nolan v. C.J., OPALA, HARGRAVE, V.C.J., Cir.1982).2 LAVENDER, J., BAILEY, Special Justice, concur. employee/plaintiff alleged When an discharge through an unfavorable structive DOOLIN, HODGES, ALMA WILSON favorable, other, less arguably transfer to *4 KAUGER, JJ., and dissent. recog- job assignments, the courts have SUMMERS, J., disqualified. employee’s obligation nized an to act rea- sonably respect employer’s deci- with to the Justice, KAUGER, whom with Garner, court to transfer. In sion DOOLIN, Justice, joins, dissenting. “[pjart employee’s obligation of an to said: Today, majority held has that sum- obligation is an not to as- mary judgment properly granted was in worst, jump and conclu- sume not to to In Large’s claim. constructive employer’s regarding too fast” sions ruled, effect, deciding, it has that an so employee. transfer the Garner decision any retaliatory employer may take action Stores, Inc., 807 F.2d at 1139. v. Wal-Mart against employee who filed a wishes an has (emphasis supplied). compensation long claim so as the worker’s employer stops firing short of case, a employee alleged that In this outright. I must dissent for two rea- ee em discharge occurred when constructive improp- motion dismiss was sons: job him to other duties ployer transferred erly granted because there material bargain collective were outside the left trial questions of fact undecided agreement and such transfer was that court; opinion does not address and cause, by that just without as defined finding employee’s' trial court’s that present agreement. The district was retaliatory discharge under the claim only conclusions ed with pre-empt- Act was Compensation Workers’ less the transfer to a favorable by federal law. ed bargaining position outside collective just and that the transfer was without unit FACTS These facts are insufficient cause. It is evident that Large employed by standard. Michael showing of prima Manufacturing a a

failed make as Engineering and Co. facie less, assembly Many much a retali discharge, department. worker its adopt including atory employees, one. We “construc Acme’s those in the refuse theory recovery assembly represented by department, as a were tive” presented in this As- the facts Sheet Metal Workers’ International Oklahoma under claim Local No. a labor Employee has failed state a sociation AFL-CIO case. recognized the exclusive organization granted. Neither for which relief employees. On genuine bargaining agent those employee demonstrated has on Large suffered an to the claim for December of fact exists as issue day he his The next job injury back. retaliatory “constructive” supervisor’s help sought temporary when it sustained trial court was correct 2012(B)(6) injury. Evident- finding physician his employer’s O.S.Supp.1984 in communica- summary ly there was a breakdown granted motion to dismiss and tion, employee continued employer. there- because the in favor of It judgment (8th Cir.1987). Hill, al., example al. v. et sufficient to 2. For an facts Schools, claim, et Public such see: Southside finding was made after the despite supervisor’s work failure to ob- This assistance, tain medical for another week. performing had been the full duties of his injury When the failed to heal his year injury. for over a since the intensified, discomfort he consulted chiro- all, has been examined practor January on doctors, only whom at least six three of by the After several weeks of treatment concerning a recommendation his made surgeon chiropractor, orthopedic he saw ability perform job. orthopedic his Two February apparently He was on surgeons found that he could return to full 14, 1984, May not to return to work until general surgeon duties and a found that He he released his doctor. when Large perform could not his current duty performed light for four weeks endangering without his health. On duty. August reported then for full On general surgeon’s basis of the conclusion an examination Large job, was unable to Large orthopedic surgeon disclosed that transfer to a Acme notified of his strain, dorsal had suffered a mild cervical plant purportedly clerical division of the permanent improving which was with no fringe pay with the same rate of bene- foreseen, disability grad- and that he could *5 employee fits on 1985. The as- June Apparently ually resume his full duties. fringe that the benefits were not serts employee consulted a doctor of the also previously identical to those he had en- medicine, found that general who they joyed, nor were included Acme’s permanent partial im- had sustained a 43% po- “package” transfer because the clerical Thereafter, body. the pairment to whole repre- removed him from the union sition under the employee the filed his third claim position bargain- to outside the Compensation Act for an on the sented one Worker’s 7, 1984, the trial job injury. ing promised compensate On November unit. Acme to judge permanent partial found a dis- Large pay during 25% rate of his at same body Although a ability to his as whole. training period only. Acme informed appealed the award to the review Acme transfer, accept Large that if he did not Court, panel Compensation the Workers’ discharged. Large did not he would be judge’s decision on which affirmed the trial position. report to the new On June 26, 1985, subsequently it settled March grievance the union filed a on behalf Large’s April claim on employee alleging that because he of the Qualifica- implemented Physical a job was transferred to a outside bar- pro- Program May 1985. This tions constructively gaining unit he had been developed determine gram allegedly was discharged/transferred in violation of a perform employee could whether provision “just cause” termination endan- job adequately and without his/her agreement. This is- bargaining collective safety health or or gering either his/her was submitted to arbitration on June sue 23, 1985, May after the others. On that of 13, 1986, 20, 1986, and on November 19 and filed in the agreement settlement grievance finding the arbitrator denied Compensation and under Workers’ Acme had not violated the collective that Qualifications Physical program the new agreement. bargaining Large be exam- place, Acme demanded that 21, 1986, filed a On June supplied that ined another doctor retaliatory discharge in the dis- claim for questionnaire regarding a doctor with asserting filing of a trict court that ability industrial triggered compensation claim had workers’ general surgeon, a work. This doctor was job fringe with less bene- his transfer to a orthopedic specialist whose consul- not the fits, prestige. protection, and less less tation had been used a motion to dismiss. Acme countered with compensation claim. Con- the workers’ finding granted the motion The trial court findings, trary orthopedic surgeon’s to the employee had not been general surgeon found that the contemplation of 85 O.S.1981 within the qualified for industrial work. ee was not 5;1 liability any any remedy ployers change in work- available § subject bargaining agree- any perceived slight conditions or for collective therefore, however, and, pre- employee. Conversely, controlled and ment empted ap- Legislature federal law. The could not have intended sub- pealed. ject compensa- employees who file workers’

tion claims to retaliation so severe availing employees deter from themselves I. statutory protection of the Act. A MAY BE A TRANSFER developed legal in numer- standards CONSTRUCTIVE establishing the ous decisions doctrine of DISCHARGE most discharge effectively constructive balance, Legis- strike this question presented is The first one purpose enacting 5. Acme con- lative § from impression a transfer first —whether depart- tends that a transfer to a different may, a to a non-union under union discharge ment is 5. The case, the facts of this be construed as employee argues question discharge equivalent of whether the transfer was employment. majority termination of question of fact and should have been recognizes the doctrine of con- obliquely jury. to the has submitted discharge, structive and that can be demonstrating burden of em- equivalent of a O.S.1981 discharge.2 ployer’s actions constituted However, purposes. it refuses propounded theories have con- recognition by its al- Two been breathe life into necessary to cerning proye question here left undecid- what lowing the to be *6 fact, though discharge; employee must ed even structive trier of fact the deliberateness of the many prove material issues of there action, intolerability working reme- and the remain unresolved. Given the which statute, conditions;3 employee prove must “dis- or The dial nature of the the term working fact condi- in a to the trier of charge” in should be construed 5§ unpleasant that pur- difficult or a way the manifest tions were so which effectuates employee’s pro- person reasonable in the shoes pose Legislature to compelled resign.4 to Ei- retaliatory have felt employees tect from actions presents question a of fact.5 Obviously, Legislature theory did ther employers. indirectly employer cannot do what subject to far to em- An go not intend so as Dist., 748, Indep. F.2d provides: v. 798 4. Jett Dallas School 85 5 Title O.S.1981 Flawn, Cir.1986); (5th v. 761 F.2d 755 Kelleher firm, corporation person, partnership or "No 1079, (5th Cir.1985); Pittman v. Hatties 1086 any employee discharge the em- because may Dist., 1071, burg Separate 644 F.2d Mun. School claim, good or has ployee has in faith filed Cir.1981); (5th Bourque Elec. v. Powell 1077 lawyer represent in said to him retained claim, 61, Co., Cir.1980); (5th Mfg. Neale v. 617 F.2d 65 instituted, in to be instituted or caused 1381, Dillon, (E.D.N.Y.1982) F.Supp. 1390 534 faith, provi- any proceeding good aff'd, Cir.1982); (2nd Seery 116 v. 714 F.2d Statutes, or of Title of the Oklahoma sions 85 532, Conn.App. Hosp., Haven 17 554 Yale-New testify about in such testified or is to has also, 757, (1989). See Baxter and A.2d 761 employer proceeding. no shall Provided Farrell, Discharge—When "Constructive Qu itt any employee required to or retain rehire Fired", Getting Emp.Rel.L.J. 7 346 Means physically per- unable to is determined who (1981-82). assigned duties." form 340, (10th Corp., Oil 196 F.2d 343 5. Derr v. Gulf 1251, Press, Inc., Daily v. 770 F.2d Retreat, 2. Bristow Cir.1986); 702 F.2d Pena v. Brattleboro 1082, Cir.1985) (4th cert. denied 475 U.S. 1255 Cir.1983); Vaughn (2nd v. Pool Off (1986); Alicea Co., (5th Cir.1982); 89 L.Ed.2d Ali shore Santiago, v. 562 F.2d Rosado Garcia Santiago, see note su v. Garcia cea Rosado (1st Cir.1977); Chefs, Sky willing Bratcher majority Is not pra. Because (1989); Mutual Brock v. application Or. 783 P.2d Inc., of constructive dis consider (D.C.1979). case, Reports, necessary A.2d charge It is theory in not these two analyze merits of the relative Press, Inc., approaches, between them. choose Daily note see 3. Bristow i.e., accounting po- to an clerk permitted directly6 to do make a was transferred The Derr Court instructed the trial purpose transfer with the and sition. set court on remand to follow the standard forcing employee effect of the transferred Co., Bourque Mfg. forth in v. Powell Elec. quit resign.7 (5th Cir.1980): 617 F.2d 61 discharge doctrine has The constructive finding discharge de- “A of constructive regularly applied the federal Cir- been upon person pends whether Appeal divergent with re- cuit Courts of working as would view the conditions require employee sults. Some courts intolerable, upon subjective view employer’s specific prove intent employee-claimant.” force him/her to leave. Others adopted stringent objective employee less stan- fill a When an contracts to employee prove requiring particular position any unjustified dard material working conditions so change significant has made in duties or reduction person in the difficult that a reasonable constitute a constructive dis- rank re- charge. employee shoes would feel forced to The fact that re- determinative, discharge has sign. salary A constructive been the same is not ceives orig- an onerous transfer which has defined as the status associated with the because forcing the trans- purpose position primary and effect inal could have been the quit.8 theory of making ferred the contract.12 On inducement discharge hand, right has been used an has the the other cases,9 wrongful efficiency de- discrimination to transfer cases,10 retaliatory discharge long cases.11 made mands so as the transfer is not purpose.13 an unlawful Whether a con- In Derr Oil Gulf occurred this case structive Cir.1986), the Tenth Circuit Court cannot be determined because the cause dis- Appeals remanded a constructive dismissed the trial court before trial had charge case in which the evidentiary hearing was held. full employee had not been determined that the wrongful discharge, it constructively every she action for dis- position on a career ladder must be shown that occupied had *7 discharge may direct— analyst, charged. The be as an associate lease track Bd., (42 Employment Cases U.S.C.S. Water Resources Discrimination 6. Reherman v. Oklahoma 1296, (Okla.1984). Finding seq.) et Which Warrant of §§ P.2d 1301 2000e 679 Discharge' who of Discriminatee 'Constructive 1, Independent Dist. No. 676 Childers v. School (1981). Employment”, Resigns 55 A.L.R.Fed. 418 1338, Cir.1982); (10th Rog Allaire v. F.2d 1342 1055, ers, (5th Cir.1981) cert. F.2d 1058 658 2, Inc., 10. Brock v. Mutual Reports, see note 928, S.CU975, denied, L.Ed.2d U.S. 102 72 456 supra. denied, 1126, (1982) reh’g U.S. 457 443 2949, (1982); Bickel v. Burk- L.Ed.2d 1343 73 4, Flawn, supra; 11. Kelleher v. see note Childers 1251, hart, (5th Cir.1980); McGill F.2d 1255 632 1, 7, Independent v. School Dist. No. see note 774, Educ., (7th Cir. 602 F.2d 780 v. Board of 7, Rogers, supra; supra; v. see note Bick- Allaire 1979). 7, Burkhart, supra; el v. see note McGill Educ., 7, supra; Alicea Rosado Board see note of 2, Santiago, see note Rosado v. Garcia 8. Alicea 2, Santiago, supra; see note Daniel v. v. Garcia supra; Newspaper Guild v. Boston Herald-Trav- 772, Estates, Ill.App.3d Ill.Dec. 165 117 Hoffman (1st Cir.1956). 471-72 eler 403, 754, (1987); Hinthorn v. 520 N.E.2d 756 1006, Bloomington, Ill.App.3d 151 Roland’s of 4, Dist., Indep. see note 9. Jett v. Dallas School 1128, 122, (1987); N.E.2d 1130 105 Ill.Dec. 503 2, Press, Inc., Daily supra; see note Bristow v. 642, Affairs, Md.App. Beye v. Bureau Nat’l 59 of 5, Retreat, supra; see note Pena v. Brattleboro 1197, (1984). 477 A.2d 5, Co., Vaughn see note supra; v. Pool Offshore Hattiesburg Separate supra; Mun. Pittman 2, Reports, 12. Brock v. Mutual see note 4, Dist., supra; note Mitchell v. Con School see Co., F.Supp. Gen. Ins. necticut Life Dillon, (E.D.Mich.1988); Neale v. Corp. 449 F.2d 13. N.L.R.B. v. Chapter, supra; Mich. Jenkins v. Southeastern Hertz N.L.R.B., Cir.1971); (1985). Macy’s Div. v. Mich.App. Mo.-Kan. N.W.2d (8th Cir.1968). also, Annot., "Circumstances in Title VII See Or, discharge may performance stating fired!” 3.A review “Your’re be form physically that he was able to things so less direct—“I’ll make miserable job; you that be forced to you’ll leave.” 4) His be the affidavit two union officer’s Because latter substantial stating that the former, affidavits transfer is to a equivalent of job; nonunion directly circumstantially intent whether or 5) The manifested, proceedings began transfer two important. is If relevant days employee after the his work- settled employer seeking accomplish is an indi- claim; er’s compensation rectly directly, it what could not do that 6) An professor affidavit of of econom- can and should shown. foundation be ics which states that a transfer from a retaliatory discharge analysis is that union cause to a non-union would employer “discharges” employee an an employee an economic loss to the even if employer when the makes unilateral deci- were fringe benefits the same. employee, sion to terminate the even “permits” invites or engaged fact-finding The majority has employee quit appropriate instead. which is for this role appeal.15 assume on It finds unilateral to dismiss the em- er’s decision employee prima did not state a facie discharge, is the ployee essence of case of discharge under § either to if the fails return to implausible, put This it conclusion is resigns avoiding an work or thus actual mildly, reviewing the pleadings, after the claim that formal dismissal. Where is our affidavits and attachments. Under quit was forced because code, pleading notice result violates conditions, unacceptable working created 2008(F) O.S.Supp.1984 which spirit employer, appro- maintained provides: pleadings “All shall so con require employee prove priate justice.” substantial strued as to do deliberately to rid did so baffling result even more when employee.14 itself analogous unpublished case the Court following submitted Appeals, State ex rel. Okla Cowell its motion to dismiss: 69,-697, Comm., No. Employment homa Sec. denied, March is con report rt. April 1. A doctor’s dated ce sidered. concluded working in an industrial should Pro- employed Cowell Kiamichi environment. Association as a secre- duction Credit Associa- tary/office After the assistant. 2. The of economic loss be- absence tion with Farm Servic- consolidated Credit wages equal. cause and benefits *8 es, eliminated, jobs all and the em- were rebutting evidence was ployees reapply posi- were advised that: employer. follow- tions with the new After report, orthopedic surgeon’s 1. An dat- procedures, ing the Cowell recommended 17, 1985, concluding the ed June that job secretary. as a Because was offered a employee qualified to return to his was position to be a she the new considered risk to em- occupation normal at no benefits, demotion in rank and and because alleged previously to his ployer relative of her prestige felt it lacked she that injury; position, turned the offer former she down four co-workers stat- 2. Affidavits from Her unemployment and filed for benefits. performed all his Employ- application approved by was Commission, any problem there Security without and Farm Cred- duties ment Appeals appealed. he was unable to The Court of complaints no that it Services were duties; accept refusal perform held that Cowell’s his physically Crowl, (Okla.1987). Chefs, In re 737 P.2d Sky 14. Bratcher to, rates, position preclude pay alternative did not her which are not limited holi- days, jury duty, time off for receiving unemployment compensa- elections from leave, military plans, safety prac- insurance position tion because her had been eliminat- tices, layoff procedures, rights, recall se- unemployed through was no ed and she termination, niority, promotions, union se- fault of her own. checkoff, hours, curity, union dues work Although Large’s position not elimi- was pay, grievance procedure, overtime arbitra- nated, Qualifica- Company’s Physical vacations, tion, pensions, competitive Program may effectively have elimi- tion jobs, right to bid for certain and shift dif- Large position by finding nated from pay.17 Large certainly enti- ferential performing he had that even been proof to offer of the existence and tled competently year for over a since importance of such benefits. accident, physically qualified he was not his petition A should be dismissed Cowell, job. stay on the appears a claim unless it failure to state position ee was faced with a that did not beyond plaintiff prove that doubt can rank, carry prestige. benefits or the same of facts in of the claim.18 no set So, too, may Large when he was told Large present not been evi- has allowed being transferred out of the collec- he was position dence to establish that the clerical position. bargaining tive unit to a clerical prestigious position not as as the from An violates the National Labor transferred, he was or which that bene- by transferring an Relations Act fits were inferior. This matter should be position bargaining inside the unit from a evidentiary hearing remanded for a full position to another less desirable outside disputed questions determine these fact bargaining unit if the transfer results surrounding the issue of whether a con- employee’s union activities.16 In from the discharge occurred. structive Under Elec., Inc., Campbell-Harris N.L.R.B. majority’s analysis, it is irrelevant whether Cir.1983), the Court Large prove Physi- could at trial: that the employees who had held that two union sham; Qualifications Program cal was a ego company had worked for the alter been being that transferred from a union to refusing constructively discharged after position non-union diminished terms partnership for the successor work employment resulting and conditions of his analogous argument basis. An non-union substantially job; in a inferior that that an has con- can be made general surgeon’s findings incompe- were structively when tent; employer deliberately dis- employee is transferred outside the regarded year satisfactory post- his one filing a worker's com- bargaining unit after Large injury performance, and that pensation claim. physically in the able fact, and un- questions These are all assembly impairing line without either his majority, presume I do not to know co-workers; like the safety own or that of his questions. to these It is com- position the answers reassignment to a outside however, monly recognized, pretext that collective bargaining unit was behind agreements typically lay employer's contain intent that bargaining include, quit.19 that he would negotiated benefits which but become so miserable *9 (Okla.1983); Corp., Corp., sources 662 P.2d 16. N.L.R.B. v. Hertz House, Munley v. ISC Fin. 584 P.2d Hunt, p. Workplace, (Okla.1978). Law the Ch. 17. J. . 1988). (Bureau National Affairs Inc: Large’s truth 19.I state no view as to the however, 41, 45-46, Gibson, allega- allegations. proved, If these Conley U.S. 78 S.Ct. 18. also, 99, 102, (1957). summary judgment. preclude At 2 L.Ed.2d See tions dispute which least three material facts are in Motors 760 P.2d Buckner v. General (Okla.1988); might support his claim: Wilds v. Universal Re- 806-07 ACME COUNTERS: LARGE ASSERTS: working per- Large in an Large physically qualified 1. should not be is 1. assembly job industrial environment. in the line. form reasons, collective-bargaining agreement, the claim summary judgment was For these law. pre-empted not federal inappropriate. The Court said: questions purely “Each of these factual II. pertains to the conduct of and motivation of the conduct CLAIM A RETALIATORY DISCHARGE re- employer. Neither of the elements BE PRE-EMPTED BY MAY NOT quires interpret any term of a FEDERAL IF THE RESOLU- LAW collective-bargaining agreement. To de- THE CLAIM TION OF STATE LAW against retaliatory discharge fend DEPEND ON THE CON- DOES NOT claim, must show that it had OF THE STRUCTION COLLECTIVE- nonretaliatory for dis- reason BARGAINING AGREEMENT. (citation omitted) charge; purely this fac- resolved, remaining to be issue inquiry likewise does not turn on the tual discuss, majority fails to which meaning any provision of a collective- for explicitly has been tendered Thus, the bargaining agreement. state- review, state is whether the our “independent” remedy in this law case retaliatory discharge under claim of tort collective-bargaining agreement in of the Compensation Act the Oklahoma Workers’ “independent” sense of that matters inextricably is so intertwined with purposes: resolu- pre-emption for § agree- bargaining terms of the collective does re- tion of the state-law claim not ment Acme and the Union construing collective-bargain- between quire pre-empted by Act is federal law. agreement.” possibili- Lingle Court discussed Castings In Dority Country v. Green analysis of facts both (Okla.1986), ty of same Cory., P.2d cause of action and collective bar- state Labor that the National Court determined dispute. It commented: gaining a state pre-empt Act does not Relations explanation agree claim under 85 O.S. “We with Court’s Div., might analysis well Norge the state-law Lingle 1981 5.20 1882-83, 408-10, same involve attention to the factual U.S. (1988), as the contractual determina- the United siderations 100 L.Ed.2d 420-21 just 1) Lingle was fired for that: A claim tion of whether Supreme Court held States disagree law is cause. But we with Court’s retaliatory discharge under state parallelism renders state conclusion that such pre-empted if resolution of the analysis dependent upon the state-law depend on the terms law action does analysis. there For while agreement; the contractual collective-bargaining may in- National be instances though state law resolution Even state law pre-empts Act Labor Relations same factual considerations volve the subject matter of the basis determination of whether the contractual mere- cause, question, pre-emption just such law petitioner was fired will ly that federal law law ensures does not render the state parallelism collective-bargain- interpreting dependent upon the contractual basis resolution nothing says about ing agreements, determination; If the law claim state rights may pro- a State the substantive interpreting without can be resolved loss be- be no economic a union to a non- 2. There will A transfer from 2. wages and benefits cause the will result in an econom- union equal. Large. ic loss to not a cleri- The transfer is transfer to the If does not discharged. position, he will be cal *10 47, (Okla. Service, Inc., found, 50 analogous Tong 784 P.2d Frank’s Recently, in an this Court situation, Transporta- 1989). the Surface federal pre-empt a state Act did not tion Assistance wrongful v. termination. Todd claim for 5)consequent termination of adjudication of vide to workers when rights depend upon not those does ment. In interpretation agreements. of such established, case is prima After a facie words, dispute if resolution other to the em appropriately then shifts burden collective-bargaining pursuant to the inference that its mo ployer to rebut hand, agreements, on the one and state by articulating a le retaliatory tives were law, other, require address- on the non-retaliatory reason for the dis gitimate facts, as ing precisely the same set of include charge. Examples of such reasons can re- long the state-law claim employee’s inability as interpreting agree- solved without duties, pursuit the bad faith signed itself, ‘independent’ ment the claim compensation claim.21 pre-emption agreement for § persuade the employer The need not purposes.” by actually motivated court that it was finding that: require a

Dority Lingle employer’s The burden proffered reasons. 1)the retaliatory dis- employee’s claim for production of relevant and a burden of Compensation charge under the Workers’ evidence, persua- a burden of credible pre-empted by federal law may Act not be It is if the evi- sion. sufficient law claim is if the of the state resolution genuine issue of fact con- dence raises a of the collec- dependent on the terms retaliatorily cerning whether it 2) agreement; and a trans- tive-bargaining employer must set employee.22 discharge if a fer be a constructive through introduction of clearly, forth person the same condi- evidence, for the the reasons admissible resign. tions would feel forced explanation employee’s termination. The right employee contends that his justi- legally must sufficient provided way 5 in no sue under 85 O.S.1981 § entering judgment employer. for the fy bargaining agreement or flicts with the Labor Relations Act. with the National employer carries this burden If the employee’s claim for argues by raised production, presumption subject griev- wrongful discharge is rebutted, factu- case is and the prima facie procedures the col- arbitration ance and speci- to a new level of inquiry proceeds al bargaining agreement between lective production ficity. Placing this burden of and that it is therefore Acme and the union purposes serves two on the —it law. pre-empted federal prima facie case plaintiff’s meets the prove a claim of order reason for the ac- presenting legitimate employee must show: discharge, the issue with it frames the factual tion and 1) employment, the worker clarity provide sufficient demon- 2) opportunity fair job injury, with a full and on em- offered strate that the reason circum- receipt of treatment under ployer terminating notice put stances employment for a for the had been rendered not the true reason that treatment rather, was, pretext. injury, work-related decision but should be evalu- sufficiency of the rebuttal good faith or that it fulfills these instituted, extent to which instituted, pro- ated or caused to be Act, functions.23 ceedings under the 254, 1089, 248, 18, Burdine, 1094- 101 S.Ct. 450 U.S. Motors 21. Buckner v. General 999, 207, Forrest, (Okla. 95, (1981); Elzey McDonnell supra; P.2d 67 L.Ed.2d 802, 1987). 792, Green, Douglas Corp. v. 411 U.S. (1973); 1817, 1824, L.Ed.2d S.Ct. Corp., see note v. General Motors 22. Buckner Munson, Womack denied, Cir.1980) 101 S.Ct. cert. 450 U.S. (1981) VII cases L.Ed.2d 814 for Title Postal Serv. Bd. Gover- See United States reasoning. analagous Aikens, used which have 460 U.S. nors v. (1983); Dept. Texas 75 L.Ed.2d

1097 However, just the was petitioner the of the burden which of whether fired for nature cause, render law to the must be understood this does not the state shifts dependent upon the de- connection with the ultimate claim contractual in trial in case intermediate burdens. The ultimate termination.26 The court persuading any trier not hear evidence on the of the of fact did whether burden employer retaliatorily discharged filing was in retaliation for a transfer compensation exercising statutory rights claim. The dismis- employee for workers’ assumption Act at all with the sal was based on the the action under the remains times pre-empted by never federal It is the persuasion of law. employee. burden duty of the of facts to hear the evi- and the bears the burden trier shifts for and find the facts and not this Court persuasion given the reason dence of parallel appeal.27 burden Because state-law pretextual. termination was This per- remedy may independent in this be of of case merges with the ultimate burden collective-bargaining agreement, and suading the that he has been of The em- because construction collective-bar- victim this, directly agreement may required, not may gaining in either be ployee succeed retaliatory dis- discharge of persuading question court that the whether by charge pre-empted claim was decided significantly motivated retaliation is statutory indi- rights, prematurely.28 exercise for his of prof- rectly by showing that the CONCLUSION cre- explanation unworthy of

fered dence.24 premised, Acme’s motion to dismiss was sustained, apparently based on the

Purely pertain to questions factual finding that a is not a the con- transfer conduct of the 5, pre- the matter was do not and that and motivation of duct of law.29 The motion interpretation empted terms federal require court improperly agreement. granted It because collective-bargaining dismiss a a the transfer was Supreme to the issue whether the function of the Court not for fil- ques- retaliation an initial of fact make determination compensation claim was presented ing a workers’ properly which have been tions sufficiency appraising it.25 not determined considered. to the trial court but dis- petition not be petition, the state should Lingle, As stated to state claim unless consid- missed failure involve the same factual cause beyond plaintiff can appears doubt determination erations as the contractual 2012, 21, 23, Forrest, id.; O.S.Supp.1984 Elzey 12 a motion note see 29.Under 24. Note supra. for which to state claim dismiss failure granted be as a sum- can be will treated relief 820, (Okla. Gwaltney, 291 P.2d 824 Davis v. 25. petition mary judgment and matters outside I, 1955). also, supra. discussion in Part See provides perti- allowed. The statute will be part: Div., nent 770 v. Groen 26. Windfield Cir.1989). If, asserting the defense ... on a motion "B pleading to for failure ... dismiss Crowl, In re grant- upon which relief can state claim ed, presented Inc., (3rd pleading Cir. matters outside F.2d Berda v. CBS 25 court, 1989); Chrysler motion Corp., 879 F.2d Smolarek v. to and excluded Parsec, (6th Cir.1989); Dougherty summary judgment shall be treated as one also, (6th Cir.1989). See given op- parties and all shall Magnet Ill.2d People Chicago Wire perti- portunity present all material made (1989) N.E.2d 128 Ill.Dec. by the sum- motion rules for nent to such a — denied, -, U.S. cert. mary judgment_” (1989) (The Supreme Illinois L.Ed.2d also, Fraser, New Petition Under the "The See Pleading regulations did not OSHA found federal Code,” Okla.L.Rev. laws pre-empt the of state criminal enforcement (1985). employers concerning the work conduct place). *12 prove no of facts in set entitle him to relief.30

claim which could sustaining Acme’s

The trial court erred and the cause should be

motion to dismiss proceedings.

remanded for further pro- further

fact that I would remand for

ceedings mean that can does not he

recover. It does mean that should I note that if the day in court. would remanded, and if the trial court

cause were necessary in the determination of

found it discharge issue to con-

the constructive collective-bargaining agreement,

strue the discharge claim would

then pre-empted by federal law. OF THE AUTHORITY HOUSING NATION, Appellee,

SEMINOLE HARJO, Appellant.

Josephine

No. 67999.

Supreme Court of Oklahoma.

April House, supra; Munley Gibson, Fin. supra. See see note v. ISC see note Conley also, see note Corp., Motors Buckner General supra; Wilds v. Universal Resources