Briggs v. Nova Services Inc, Supreme Court No. 79615-7 (view WELA’s brief)
Plaintiffs Briggs, Robertson, Johnson, Nunn, Smith, and Bader worked for Nova Services in jobs titled “manager.”? Plaintiffs Zeller, Clark, Castillo and Bruck worked for Nova in positions that were non-managerial. Nova’s policy prohibited them from communicating with its Board of Directors.? Briggs, Robertson, Johnson, Nunn, Smith, and Bader complained in a letter to the Board that the actions of Nova’s Director, Linda Brennan, had negatively affected them.? They complained, inter alia, that Brennan refused their suggestion to add staff to reduce their work load, awarded sick leave arbitrarily, unfairly tracked working hours, and had misclassified some workers in order to not pay them overtime compensation.? The letter expressed concern that Brennan’s failure to plan for an anticipated loss of Nova’s major funding source jeopardized Nova’s existence and the workers’ jobs, and complained that Brennan prevented communication with the Board.
The Board ultimately supported Brennan, who fired Briggs and Robertson for what she termed “insubordination.”? Plaintiff Bader then gave Brennan two weeks notice, stating that she had promised to stay or go with the others.? Brennan asked Bader if she would “refrain from collaborative efforts against her” during that time and, when Bader stated she would not, Brennan terminated her employment that day.
Bader and the remaining workers responded with another letter, complaining of retaliation.? The workers stated that unless the Board responded the next day with a plan of action concerning their demands, they would basically strike.? The Board did not respond, the workers walked out, and Nova treated the walk-out as a group resignation.
The employees filed a complaint against Nova on September 17, 2004, alleging wrongful termination in violation of public policy, unlawful retaliation-wrongful discharge, negligent infliction of emotional distress, intentional infliction of emotional distress/outrage, and negligent supervision/retention.? Summary judgment was granted for the Defendant, and the employees appealed.? The Court of Appeals affirmed and the Supreme Court granted review.
In support of their claim for wrongful discharge, the employees relied on the so called Norris-LaGuardia Act, RCW 49.32.020, as a source of public policy, and Bravo v. Dolsen Cos., 125 Wn.2d 745, 758, 888 P.2d 147 (1995).? The statute recognizes that non-union employees have a right to engage in concerted activities related to the “terms and conditions of employment,” “collective bargaining” or for “other mutual aid or protections.”? RCW 49.32.020.
Writing for a plurality of three, Justice James Johnson gave a narrow interpretation to the statute.? He ruled that “[t]he Managers were not complaining about wages and hours or supervisor harassment, nor were they requesting better benefits, more breaks, or easier work rules. These complaints simply are not about terms and conditions of employment.”? Because the statute was not violated, there was no claim for wrongful discharge.? Moreover, Justice Johnson ruled that the terminated employees were not terminated, “they voluntarily left and promised they would not return unless the Board fired director Brennan.”? Justice Johnson was joined by Justices Alexander and Sanders.
Justice Charles Johnson, writing only for himself, filed a concurring opinion and agreed that the employees’ activities were not concerted activities under the terms of the statute.? He also agreed that this was fatal to a claim of wrongful discharge.? He stated, however, that the claim under RCW 49.32.020 and the public policy wrongful discharge claim must be treated separately.
Justice Madsen, writing only for herself, filed a concurring opinion.? She argued that the public policy of protecting employees’ right to engage in concerted activities was raised for the first time in Plaintiffs’ appellate brief, and was therefore waived.? But see Ellis v. City of Seattle, 142 Wn.2d 450, 459 n3 (2000) (disagreeing with the Court of Appeals’ decision not to consider the Seattle Fire Code because it wasn’t raised in the trial court – “The Court of Appeals’ approach seems misguided. A fire code provision is not evidence; it is law”).? In the alternative, Justice Madsen’s argued that Plaintiffs failed to establish that the jeopardy prong of the claim was satisfied, because they did not establish that there was no adequate alternative means to protect the public policy.
Justice Owens wrote a dissenting opinion, in which Justices Chambers, Stephens and Fairhurst joined.
Significantly, there is no majority for the proposition that the employees failed to engage in concerted activities within the meaning of RCW 49.32.020.? This case appears to have little, if any, precedential authority.