Opposition Brief — American Disposal Co. v. Hume

No. 94-957

IN THE

Supreme Court of the Unite

October Term, 1994

AMERICAN DISPOSAL, CO., D.M. DISPOSAL

cx. »

and MURREY’ S DISPOSAL CO.,

Petitioners,

Vv.

RANDY HUME, CHRIS DAVIES, MICHAEL ROGGE

and ROBERT TAYLOR

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

WASHINGTON

RESPONDENTS’ BRIEF IN OPPOSITION

Lawrence Schwerin

(Counsel of Record)

Kathleen Phair Barnard

SCHWERIN, BURNS, CAMPBELL

& FRENCH

2505 Third Avenue

Suite 309

Seattle, Washington 98121

Attorneys for Respondents

aBCD Legal Printers. Seattle. Washington

QUESTION PRESENTED

Is a state court action

for retaliation in

violation of state public

policy protecting

employees from discharge

or harassment for claiming

overtime or participating

in a state investigation

of overtime claims

preempted by the Garmon

doctrine under the

National Labor Relations

Act?

ii

TABLE OF CONTENTS

QUESTION PRESENTED. .....eeeeeeeeees i

TABLE OF AUTHORITIES. .....-.2eee00. iii

OPINIONS BELOW... .. cece ceeeccccees 1

STATEMENT OF THE CASE......... eoserd

REASONS WHY THE PETITION SHOULD

BE DENIED. ....cccccccccscccces Tere 7.

I. THIS Is NOT, AS THE

PETITION SUGGESTS, A CASE

IN WHICH EMPLOYEES SEEK

STATE PROTECTION FOR UNION

ACTIVITIES; RATHER, HERE

THE EMPLOYEES SOUGHT TO

VINDICATE THEIR RIGHTS TO

MAKE CLAIMS UNDER A STATE

STATUTE OF GENERAL

APPLICATION. .....-ee00.% cocvee dl

II. THE DECISION OF THE

WASHINGTON SUPREME COURT

IS COMPLETELY CONSISTENT

WITH PRECEDENT ESTABLISHED

BY THIS COURT. .... cece. coed”

III. THERE Is NO CONFLICT

BETWEEN THE DECISION BELOW

AND DECISIONS OF THE

CIRCUIT COURTS. .....cceeeeeee 22

CONCLUSION. ....ccccccccccccccccces 29

iii

TABLE OF AUTHORITIES

Cases:

Bassette v. Stone Container Corp.,

25 P. 34 757 (9th Cir. 1994)...22, 23

le ae a Cae Ue a Re ea ew 24, 25

Farmer v. Carpenters,

Ue TE ARE Tin nn > 0 een wee eae 18

Haynes _v. Zoological Soc.

of Cincinnati, 9 IER 124,

128-129 (Ohio Ct. of Appeals,

tet App. Diet. 1993). ..ccccceesecs 29

Local 100, United Associations of

STS Se Res 66 ce cee woe a er 20

Local 1054 v. W.C.

In ial lati As Lation,

775 F.2d 1042

9 gt Se ee ae ee 25

1 Vv. in —

35 F.3d S66

Pee CO, BOWE se ect ee rd siteeetnenaon 12

Motor Coach Employee v. Lockridge,

SS Ee a? el ts eee ee ee 20

Paige v. Henry J. Kaiser Co.,

826 F.2d 857 (9th Cir. )

cert. denied,

gS aa Ee ek: beer 26

Parker v. Connors Steel Co.,

885 F.2d 1510 (1ith Cir. 1988)

cert. denied, 490 U.S. 1066 (1989)

iv

Platt v. Jack Cooper Transport Co.,

959 F.2d 91 (8th Cir. 1992)

pethen deb aw dees bens 0eehe eee 22, 26

ces 6 6A ae PARES EE 6 be eee hee a7y: =e

Price v. PSA Air, Inc., 829 F.2d 871

(9th Cir.) cert. denied,

S66 G &. . SOR CECT be soc 0ees ae eens 26

S30 G.@. 200 (ESP G ee 4 xtedenaws 18, 19

eee er en See i ee eee Te eee Te ee 20

Vv

Ca,., 790 ¥.28 i279

(6th Cir. 1986), cert. denied,

S60 @G.8. FOG (ROOM hes ke ded beceeess ao

Washington Service Contractors

aliti Vv i f mbia,

858 F. Supp. 1219

(e. Gk BBR bs ck ciles nas Reece hoes 13

Windfield v. Groen Division, Dover

Core, 890 F. 2G FES CESSS).. es cess 28

Statutes:

Be GG. Oo 2B ks ba 0s 6654 600 benee 04 21

Regulations:

Sue. GCE. B. BLO AS. Zines svactsnervews 2

Miscellaneous:

Mont. Code Ann. 39-2-904(2)

EA of Bare eerae ie pep errs fea meee 23

The Respondents, Randy Hume, Chris

Davies, Michael Rogge and Robert Taylor,

respectfully request that this Court deny

the petition for writ of certiorari,

seeking review of the Washington Supreme

Court’s decision in this case.

OPINIONS BELOW

The trial court’s denial of summary

judgment on preemption grounds, and the

trial court’s denial of a motion to

Gismiss on preemption grounds, are not

published and are reprinted in

Respondents’ ! Appendix A and B,

1. References to the Petition are designated "Pet." with

the appropriate page indicated. Petitioner’s Appendix is

referenced as "Pet. App."; Respondents’ Appendix is

referenced as "Resp. App." References to the trial court

and Washington Supreme Court’s rulings are made by

reference to the Appendix where those decisions can be

found. References to the trial exhibits are designated

"Ex." and to the trial transcript are designated by "Tr."

with the eo . number or page citation,

respectively. e only portion of the trial transcript

appended herein is that portion transcribing the trial

court’s denial of Petitioners’ request for summary

judgment on a Garmon preemption theory. See Resp.

App. B.

respectively. The excerpt of the jury’s

verdict pertaining to the public policy

tort is reprinted in Respondents’

Appendix C.

The opinion of the Washington

Supreme Court is reported at 124 Wn. 2d

656 (1994) and is reprinted in

Petitioners’ Appendix A. The Washington

Supreme Court’s order on reconsideration

on the issue of attorney’s fees has not

yet been published and is reprinted in

Respondents’ Appendix D.

STATEMENT OF THE CASE?

Respondent employees did not

contend, as Petitioners suggest, that

they suffered retaliation because they

2 The Petitioners’ Statement Of The Case contains

several misstatements of fact which have a bearing on the

question of what issue would be before the Court if

certiorari were granted. Therefore, Respondents present

this restatement of the facts. See Sup. Ct. R. Rule 15.1.

In the following discussion of why the petition should be

denied, the Respondents also call the Court's attention to

other misstatements of fact.

"filfed] grievances with their union

regarding overtime." (Pet. at 4). They

based their state claims of retaliatory

harassment and discharge in violation of

Washington State public policy on

allegations that they suffered

retaliation because of direct overtime

complaints and request to their

employers, made in the context of a State

investigation of overtime violations by

their employers.

The Jury found that three of the

four "Plaintiffs were constructively

discharged in retaliation for requests

for overtime wages, complaints about the

employers’ failure to pay overtime wages

or participation in the Department of

Labor and Industries investigation of

overtime claims." (Resp. App. C). The

Jury similarly found the "Defendants

wrongfully harassed [the four] Plaintiffs

in retaliation for requests for overtime

wages, complaints about the employers’

failure to pay overtime wages or

participation in the Department of Labor

and Industries investigation of overtime

claims." (Resp. App. C).

Moreover, Petitioner’ s statement

that "none of the Plaintiffs

participat[ed] in any {Department ]

investigations" (Pet. at 6) is a

misstatement of fact and law contrary to

the jury’s verdict and to the conclusion

of the Washington Supreme Court in its

decision on appeal.

The Washington Supreme Court recited

both the nature of the Respondents’

claims and the context in which those

claims arose in its opinion on appeal:

The crux of the employees’

claims is that the defendants

retaliated against them for

demanding overtime pay. .. .

In August, 1988, after learning

that they were entitled under

state law to be compensated,

each of the plaintiffs began to

record and turn in overtime.

Meanwhile, in July the State

Department of Labor and

Industries had begun

investigating complaints of

unpaid overtime claimed by

route drivers not plaintiffs in

this case. The investigation

was concluded in September when

it was discovered that several

of the defendants’ employees

were owed overtime

compensation. The defendants

settled these claims, changed

their overtime policy, and

installed a time clock for the

drivers. At the same time,

however, they instituted a

stricter morning schedule and a

rule forbidding the drivers to

talk to each other on company

property.

Although the overtime

claims by the drivers in this

case were not the direct focus

of the state investigation, the

result of the investigation had

an impact on them, as_ the

relationship between the

defendants and their employees

continued to deteriorate. At

trial, the plaintiffs presented

evidence that when they

submitted overtime requests,

they along with other drivers,

began to suffer verbal abuse

and threats. ‘ ‘ , The

harassment continued until the

plaintiffs eventually left

their employment in 1989.

(Pet. App. at A-16 - A-18).

As can be seen from the foregoing,

the Petitioners’ suggestion that the

settlement that occurred in September,

1988, was of outstanding union

grievances, is similarly a distortion of

the facts. (Pet. at 5). The settlement

addressed the Respondents’ direct

requests to their employers for overtime

compensation. Those requests occurred in

the context of a Department of Labor and

Industries investigation and settlement

of a claim filed with the State by a

former employee of Petitioners, Lawrence

Schwerzler, for overtime.

The investigation began in May,

1988. In June, Ms. Roberta Soran, the

Department’s representative, informed the

employers that their failure to maintain

records of actual time worked violated

state law and that "[i]nformation [the

Department] received indicates that the

alleged deficiency of inappropriate

payment of overtime hours is more

broadcast than this individual claim

would indicate" and that "it was a

situation that involved more than one

worker." (Tr. 479-481, Ex. 83).%

Ms. Soran attempted to obtain the

names of the employees from all three

respondent employers, "because ... it

was [her] intent to interview those other

workmen. ..." (Tr. 479). She intended

that "[a]s data are gathered from other

workmen, we [would] make a determination

about our continuing involvement in their

behalf . . . to take whatever action

3. Ms. Soran “as a matter of courtesy" let Teamsters Local

313, the collective bargaining representative of the

employees, know that she was investigating potential

violations of state overtime law. a 474-475). The

Washington Supreme Court’s factual recitation reflected

this testimony by stating that "after learning that they were

entitled under state law to be compensated, each of the

plaintiffs began to record and turn in overtime." (Pet.

App. A-16).

[was] necessary to get them those wages."

(Tr. 498). However, the employers gave

her the names of only four employees of

one of the companies, despite her desire

to obtain the names of employees from all

three companies. (Tr. 497; Tr. 499).

She sent each of the named employees a

Survey concerning the employers’ overtime

practices, but was unable to send surveys

to other employees because the employers

had not identified them. (Tr. 484-485).

In order to—bring about an end to

the widening investigation, the employers

agreed to pay the overtime owing to

Schwerzler, instituted a time-clock on

September 4, 1988, and assured the State

that all outstanding claims for overtime

would be paid. (Fe. i093; Ge. 4273 -Fe.

482:19-21; Tr. 501:10-13; Ex. 64; Mr.

521-522).

Schwerzler had also filed a

grievance concerning his overtime, which

he settled simultaneously with the State

complaint. (Ex. 95; Ex. 96; Ex. 185).

During the Schwerzler settlement

discussions, the employers reported to

the Department that they were "working

with" the Union regarding payment of the

other employees’ overtime requests. (Ex.

96). The Department confirmed that

payment occurred before closing its

investigation. (Fe. 325).

Petitioners’ statement of the issue

emphasizes grievance filing by the

Respondents and the Petition

characterizes the September settlement as

resolution of Union grievances. (Pet. at

6). However, only two of the Respondents

filed overtime grievances and they did so

literally on the eve of the settlement

with the State. Davies and Hume, who

10

previously had been turning in direct

requests for overtime, each filed one

overtime grievance on September 14, 1988,

- one day before the settlement was

reached. (Tr. 1163:5-12; Tr. 98-99).4

Irrespective of these two grievances, the

compensation paid was for overtime

recorded by each employee and turned in

directly to the employer by Randy Hume,

Chris Davies, Michael Rogge> and several

other drivers and came as a direct result

of the Department’s investigation.

4. The Petition’s characterization of the overtime requests

made in August as b gg ager A is not supported by the

testimony ge , in which Don Hawkins, the

companies’ Vice-President states that he received several

"overtime requests" towards the end of August. (Pet. at 6;

Pet. App. B-19).

5. (Pet. App. B-3, B-4, B-19, B-20; Tr. 1151; 1152:3-11;

1154:11-1155:9; 1162:22-24; Tr. 588; Tr. 479; Tr. 498).

Although the record is unclear as to whether Respondent

Taylor received overtime compensation as part of this

settlement, the parties stipulated at trial that Taylor made

overtime requests in July and August of 1988 and that he

received on for overtime in September and

October, 1988. (Tr. 1397).

11

Finally, Petitioners’ contention

that continued "verbal abuse, threats,

unwarranted warning letters, and

[retaliatory] route enlarge[ments]" were

due to a "grievance" settlement is yet

another mischaracterization of the facts.

(Pet. at 6). In this regard, the

Petition’s factual contention is directly

contrary to the opinion of the Washington

Supreme Court, which specifically noted

that it was the Department’ s

investigation which caused the following

“impact: " "“(W)hen [the Respondents }

submitted overtime requests, they, along

with other drivers, began to suffer

verbal abuse and threats. They also

began to receive unwarranted warning

letters, some threatening termination if

they did not complete their routes within

the scheduled 40 hours. . . . ([T)heir

12

routes were actually enlarged after they

complained." (Pet. App. A-17 - A-18).

REASONS WHY THE PETITION SHOULD BE DENIED

I. THIS IS NOT, AS THE PETITION

SUGGESTS, A CASE IN WHICH EMPLOYEES

SEEK STATE PROTECTION FOR UNION

ACTIVITIES; RATHER, HERE THE

EMPLOYEES SOUGHT TO VINDICATE THEIR

RIGHTS TO MAKE CLAIMS UNDER A STATE

STATUTE OF GENERAL APPLICATION.

The claim for relief as described in

the complaint, in the jury instructions

and in the jury verdict form was for a

remedy for violation of RCW 49. 46. 100(2)

which protects employees from retaliation

when they act to enforce the State public

policy that requires overtime

compensation for hours worked in excess

of 40 per week. Thus, this case does not

present, as the Petition suggests, an

issue of State jurisdiction to enforce a

State statute designed to protect Union

activity. Compare e.g., McGlone v.

Cintas Corp., 22 F.a8 368 ttn Caz.

13

1994), Washington Service Contractors

Coalition v. District of Columbia, 858 F.

Supp. 1219 (D. D.C. 1994).

Moreover, the evidence presented in

support of the claim, and on which the

jury found liability, was that described

above, 1.¢@., individual claims for

overtime compensation in the context of a

Department investigation. Thus,

Respondent’s did not "“claim[{] in their

lawsuit that they were retaliated against

because they complained .. . to their

Union about overtime pay [including]

filing grievances . . ., discuss[ed]

overtime with fellow employees, and

attend([ed] union meetings .. .." (Pet.

14

at 6).°

Petitioners attempt to characterize

the Respondents’ individual overtime

claims as Union instigated activity

orchestrated at Union meetings in August,

1988, must also fail because it asks this

Court to find facts not found by the

jury, and in a manner inconsistent with

the record.

The evidence clearly established

that Respondents’ complaints about

6. Similarly, the Petitioners misstated the nature of

Hume’s and Rogge’s allegations: "Two of the Plaintiffs

also contended at the trial that their union positions

contributed to the Defendants’ retaliation against them.”

(Pet. at 6-7). The testimony cited by Petitioners is each

employee’s response to leading cross-examination

questions suggesting that the retaliation they suffered was

at least partly because of their roles in the Union. Both

men simply testified that they could not exclude that

possibility. However, Hume noted that the retaliation

against him began as soon as he turned in overtime and

before he assumed his role as a shop steward. (Pet. App.

B at B-1 and B-2; B-13 -- B-16; Tr. 1270). Again, there is

no such allegation in the pleadings, no jury instruction

allowing the jury to consider retaliation against roles

assumed in the Union, and no uy finding that Hume or

Rogge, or any other Respondent for that matter, suffered

retaliation because of their Union roles.

15

overtime and the resulting retaliation

began well before the Union meetings.

Davies first complained about overtime in

August of 1987 and received his first

retaliatory warning letter in December of

1987. (Tr. 67-70). Taylor began making

overtime requests in July, 1988. (PE.

1397). At the end of July, 1988, Hume

informed his employer that he would be

henceforth turning in his overtime and

expecting payment for it. (Tr. 1255-

1256). He continued to claim overtime

into August. In August, 1988, Rogge

turned in overtime on a piece of paper he

left on the desk of the companies’ Vice-

President. (Tr. 557-558). The employers

instituted the retaliatory change in

starting times on August 16, 1988, after

the individual requests for overtime had

been made, but before the second Union

meeting occurred. (te. 43573. Davies

16

again turned in overtime requests in

August, 1988, and was verbally attacked

by the owner of the company on August 22,

1988. (Tr. 79-81).

The Union meetings occurred in mid-

August and on August 31, five months

after the Department had notified the

Union that it was investigating overtime

violations by the employers. (Tr. 473-

475). The subjects of the meetings were

the length of the-routes, the work pace,

the institution of the time-clock as a

result of the State’s investigation and

the new work rules, including the

retaliatory change in start times and no-

talking rule mentioned in the Washington

Court’s opinion. (Tr. 90; Tr. 1165).

At most, the Union was on a parallel

track with the Department. The Union had

been informed :™ the Department of

potential overtime violations. (Tr. 474-

PT ee ee eee

17

475) It encouraged the drivers to work

at a brisk, but reasonable pace. It

advised them that they had state law

rights to be paid their overtime and

informed the workers that the Department

was investigating the employers’ failure

to pay overtime. Thus, Petitioners’

statement that the overtime requests made

in August were orchestrated by the Union

is a distortion of the facts. (Pet. at

5-6). The Union simply advised the

employees how to document the statutory

overtime requests they were already

making to their employers.

II. THE DECISION OF THE WASHINGTON

SUPREME COURT Is COMPLETELY

CONSISTENT WITH PRECEDENT

ESTABLISHED BY THIS COURT.

The Washington Supreme Court

carefully followed this Court’s precedent

in holding that "the employer retaliation

regulated by the statute in this case

touches a deeply rooted local concern,

18

and, therefore falls under an exception

to the Garmon doctrine." (Pet. App. i1-

24). This holding is completely

consistent with this Court’s reasoning in

Sears, Roebuck & Co. v. Carpenters, 4136

U.S. 180, 194-195 (1978), and in Farmer

vy. Carpenters, 430 U.S. 290 (1977). In

Sears, 436 U.S. at 196-197, this Court

explained the analysis developed in

Farmer:

The Court identified those

factors which warranted a

departure from the general pre-

emption guidelines in the

“local interest" cases. Two

are relevant to the arguably

prohibited branch of the Garmon

Gocotsine. .. . First, there

existed a significant state

interest in protecting the

citizen from the challenged

conduct. Second, although the

challenged conduct occurred in

the course of a labor dispute

and an unfair practice charge

could have been filed, the

exercise of state jurisdiction

over the tort claim entailed

little risk of interference

with the regulatory

jurisdiction of the Labor

Board. Although the arguable

19

federal violation and the state

tort arose in the same factual

setting, the respective

controversies presented to the

state and federal forums would

not have been the same.

(Footnotes omitted, emphasis added. )

Following this analysis, the

Washington Court first held that the

state statute did not regulate activity

protected under the NLRA. Next, it

reasoned that "[{if] anything, the statute

regulates employer activity prohibited by

the NLRA, and thus is less likely to

interfere with the federal scheme and

require preemption. . ..” (Pet. App.

25-26). Continuing to apply this Court’s

reasoning in Sears, the Washington Court

held that the Respondents’ “claims are

based upon a statute which reflects a

legitimate local concern rooted in a

strong and clearly articulated public

policy." (Pet. App. A-26). Finally, the

Court carefully examined the nature of

20

both the federal and state claims and

determined that the “controversy

presented to the state court is different

from that which could have been, but was

not, presented to the Labor’ Board"

because the Board’s inquiry would focus

on whether the Respondent’s activities

were “protected ‘concerted activity’,"

while state inquiry would concern whether

the employers retaliated because the

subject of each employee’s complaint was

overtime. (Pet. App. A-25).

Thus, Petitioners’ contention that

the Washington Supreme Court’s decision

ignored the Sears analysis and is

inconsistent with Local 100, United

Associati Jour go 398

U.S. 690 (1963) and Motor Coach Employee

v. Lockridge, 403 U.S. 274 (1971) because

the Court “only looked to labels or legal

standards," is plainly inaccurate.

21

Moreover, Petitioners’ assertion

that, under the NLRA, the inquiry of

whether charging parties have engaged in

protected concerted activity is merely a

"Jurisdictional" label is astounding and

without citation. (Pet. at 15). Section

7 of the NLRA provides substantive

protection for employees engaged in

concerted activity and Section 8 of the

Act provides substantive protection

against interference with Section 7

rights. See 29 U.S.C. § 151. However,

the substantive protection is for

"concerted" activity, not for any

particular working condition.

Conversely, the state jury’s inquiry here

did not concern itself with whether

activity was "concerted," but only with

whether the acts in question were

assertions of rights to a particular

22

working condition, x overtime

compensation.

III. THERE IS NO CONFLICT BETWEEN THE

DECISION BELOW AND DECISIONS OF THE

CIRCUIT COURTS.

Petitioners’ contention that’ the

decision below presents a conflict with

holdings of several U.S. Circuit Courts

is premised primarily on two decisions,

Platt v. Jack Cooper Transport Co., 959

F.2d 91 (8th Cir. 1992) and Bassette v.

Stone Container Corp., 25 F.3d 757 (9th

Cir. 1994). The Ninth Circuit’s ruling

in Bassette pertains to a completely

different situation than that presented

in this case. Moreover, in more

analogous cases, the Ninth Circuit has

ruled in a manner consistent with the

Washington Supreme Court’s decision here.

Nor does the holding in Platt, which the

Eighth Circuit limited to the facts of

that particular case, constitute a true

23

split sufficient to cause this Court to

exercise its supervision.

In Bassette, the plaintiff was

terminated during a collective bargaining

contract hiatus period for alleged

falsification of test results. She filed

an action in a Montana State court

alleging a breach of the Montana’s

statute requiring employers to show just

cause to terminate an employee’ s

employment. Mont. Code Ann. § 39-2-

904(2) (1987).

Prior to the termination, the

employer had unilaterally implemented

terms and conditions of employment

following a declared impasse in contract

negotiations. Thus, there was no

collective bargaining agreement in effect

between the parties.

The Ninth Circuit noted that during

hiatus periods, employers’ obligations

24

vis a vis established working conditions

arise strictly from operation of the Act,

not from the defunct collective

bargaining agreement: "besides limiting

employers in which terms they may

implement after impasse, section 8

requires that employers honor those terms

once they are implemented . ‘ fue

Bassette, 25 F.3d at 761.

Thus, the Ninth Circuit concluded

that:

Bassette’s claim alleges

conduct on the part of Stone -

discharge without good cause -

that would constitute a failure

to honor a term of employment

implemented by Stone after

negotiations with the Union

reached impasse. amaca

Meats establishes that such

conduct would violate an

employer’s duties under section

8 of the NLRA. Because

Bassette has alleged conduct

that constitutes a violation of

section 8, her claim is at

least arguably subject to the

jurisdiction of the NLRB. AS

such, her claim is preempted by

the NLRA under the Garmon

doctrine.

25

Bassette, 25 F.3d at 761.

Unlike the instant case, Bassette

essentially concerned an allegation that

the employer had violated Section 8(a)(5)

of the NLRA which requires employers to

bargain in good faith. Hence, the

Court's decision in Bassette conforms to

the many decisions, not applicable here,

holding that state claims which amount tc

bad faith bargaining charges are

preempted because they have a high

potential to interfere with the federal

scheme. See e.g., Local 1054 v. WC.

Industrial Relations Association, 775

y.2@ 1042 (Sth Ciz. 1985) ($8(a)(5)

interference with contract claim) (cited

in Pet. at 20); Parker v. Connors Steel

Co., 885 F.2d 1510 (11th Cir. 1988) cert.

denied, 490 U.S. 1066 (1989) and Serrano

v. Jones & Laughlin Steel Co., 790 F.2d

1279 (6th Cir. 1986), cert. denied, 488

26

U.S. 1000 (1989) (both $8(a)(5) - fraud

Claims cases) (cited in Pet. at 20 and

21, respectively. )

In cases where the Ninth Circuit has

considered issues analogous to that here,

it has found no preemption of the state’s

jurisdiction. For example, in Paige vv.

Henry J. Kaiser Co., 826 F.2d 857, 862,

(9th Cir. ), cert. denied 486 U.S. 1054

(1988), the Court refused to hold that a

claim for wrongful termination in

violation of California’s public policy

preempted under Garmon or under Section

301 of the LMRA. Cf. Price v. PSA Air,

Inc., 829 F.2d 871, 876 (9th Cir.) cert.

denied, 486 U.S. 1006 (1987) (RLA does

not preempt state wrongful discharge

claim even though premised on employees’

activities in a union context).

Petitioner’s reliance on the Eighth

Circuit’s holding in Platt, is likewise

misplaced. Although the ruling in Platt

appears to be in conflict with the

decision here, careful reading of the

Platt decision reveals that the Court

clearly restricted its holding to the

peculiar facts of that case. Moreover,

the Court announced explicitly that it

did not intend that its holding

necessarily should be followed in other

cases.

In that unusual case, the court held

that “on the facts of this case,

Platt’s state law claims are preempted by

the NLRA as construed Garmon, "

emphasizing that:

it is highly relevant that

Platt unsuccessfully sought

relief through the grievance

process and directly from the

NLRB before commencing this

lawsuit. The risk of

interference with the Board's

jurisdiction is ... obvious and

substantial when an

unsuccessful charge to the

Board is recast as a state law

28

claim. Piatt, 959 F.2d at 95

(footnote omitted).

Even more significantly, the Eighth

Circuit expressly limited the vitality of

its Platt decision as precedent in other

cases, by stating that, "We do not reach

the question whether employee suits

seeking redress for violation of state

whistle-blowing statutes are generally

preempted under Garmon because we believe

the "local interest" exception to Garmon

preemption requires a more fact-sensitive

approach. " Platt, 939 7.26. at. 35

(emphasis added).

Thus, the Platt decision does not

create a true conflict requiring this

Court’ s resolution. Moreover, the

decision below is consistent with the

Ninth Circuit precedent cited above.

Finally, it is also consistent with the

Fifth Circuit’s decision in Windfield v.

Groen Div.. Dover Corp., 890 F.2d 765,

29

770 (1989) (state claims of union

activist fired during an organization

campaign not Garmon preempted); Haynes

yv._ Zoological Soc. of Cincinnati, 9 IER

124, 128-129 (Ohio Ct. of Appeals, ist

App. Dist. 1993).

CONCLUSION

For the foregoing reasons,

Respondents respectfully request that

this Court deny the petition for

certiorari.

DATED this at? tn of December

1994.

eat

So

Pa Chew te y = ita

Lawrence Schwerin

WSBA #4360

SCHWERIN, BURNS, CAMPBELL &

FRENCH

2505 Third Avenue, Suite 309

Seattle, Washington 98121

(206) 728-7280

Attorneys for Respondents

APPENDIX "A"

a

A--1

HONORABLE BRIAN TOLLEFSON

IN THE SUPERIOR COURT OF WASHINGTON

IN AND FOR THE COUNTY OF PIERCE

RANDY HUME, CHRIS DAVIES,

MICHAEL ROGGE, and ROBERT

TAYLOR,

Plaintiffs,

Vv.

AMERICAN DISPOSAL CO., a

corporation; D.M. DISPOSAL

CO., a corporation; and

MURREY’ S DISPOSAL CO., a

corporation,

Defendants.

Nee Nee Ne Sue Se See Se Se Se Se See Set See et See ee

NO. 90-2-00344-8

ORDER DENYING DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT

THIS MATTER having come on regularly

for hearing before this Court on the

motion of Defendants for an order

A--2

granting their Motion for Partial Summary

Judgment dismissing Plaintiffs’ Second,

Third and Fourth Causes of Action; the

Plaintiffs having appeared by and through

their counsel of record, Lawrence

Schwerin and Kathleen Phair Barnard of

Hafer, Price, Rinehart & Schwerin, and

the Defendants having appeared by and

through their counsel of record, Lewis L.

Ellsworth of Davis, Grimm & Payne; the

Court having reviewed the written and

oral arguments of counsel, the following

affidavits and declarations: Declaration

of Lewis L. Ellsworth, Declaration of Don

Hawkins, Affidavit of Roberta Soran,

Affidavit of Michael Brandow, Affidavit

of Inez Levin, Declaration of Harold Dean

Stroud, Declaration of Larry Schwerzler,

Declaration of Cary Bertram, and

Affidavit of Kathleen Phair Barnard and

A--3

having reviewed the records and files

herein; it is hereby

ORDERED that Defendants’ Motion for

Partial Summary Judgment on Plaintiffs

Second, Third and Fourth Causes of Action

is DENIED.

DONE IN OPEN COURT this 22nd day of

November, 1991.

/s/

HONORABLE BRIAN TOLLEFSON

JUDGE

Presented By:

/s/

Lawrence Schwerin, WSBA #4360

Kathleen Phair Barnard, WSBA #17896

HAFER, PRICE, RINEHART & SCHWERIN

2505 Third Avenue, Suite 309

Seattle, Washington 98121

Attorneys for Plaintiffs

A--4

COPY RECEIVED, NOTICE OF PRESENTATION

WAI VED:

/s/

John M. Payne, WSBA #11707

Lewis L. Ellsworth, WSBA #11360

DAVIS, GRIMM & PAYNE

1111 Third Avenue

Suite 1865

Seattle, Washington 98101

Attorneys for Defendants

APPENDIX "B"

B--1

[Excerpt of Transcript Page 1499]

The area of protection is not in the

state through Department of Labor &

Industries, it’s through the National

Labor Relations Board. Those causes of

action are preempted. ~

Thank you.

THE COURT: I’m concerned about the

form of the motion. I prefer to treat

Mr. Grimm’ s motions as motions to

dismiss.

With respect to the handicap clain,

motion to dismiss is granted based on

lack of expert medical testimony and lack

of notice to employer.

All the other motions are denied.

APPENDIX "C"

yas pee ae

C--1

HONORABLE BRIAN TOLLEFSON

IN THE SUPERIOR COURT OF WASHINGTON

IN AND FOR THE COUNTY OF PIERCE

RANDY HUME, CHRIS DAVIES,

MICHAEL ROGGE and ROBERT )

TAYLOR,

—

Plaintiffs,

v.

AMERICAN DISPOSAL CO., a

corporation; D.M. DISPOSAL

CO., a corporation; and

MURREY’ S DISPOSAL CO., a

corporation,

Defendants.

Se et ee eet ee ee Se ee ee ee ee ee ee

NO. 90-2-00344-8

JURY VERDICT FORM

We, the jury, make the following

answers to the questions submitted by the

Court:

C--2

QUESTION NO. 13: Do you find

that any of the Plaintiffs were

constructively discharged in

retaliation for requests for

overtime wages, complaints

about the employers’ failure to

pay overtime wages or

participation in the Department

of Labor and Industries

investigation of overtime

claims?

Answer "yes" or "no" after the name of

each Plaintiff.

Answer: Yes No

Randy Hume ~~ Ree

Chris Davies pe pce” :

Michael Rogge ___ —~x

Robert Taylor _X_

Regardless of your answer, proceed to the

next question.

C--3

QUESTION NO. 2: Do you find

that Defendants wrongfully

harassed any of the Plaintiffs

in retaliation for requests for

overtime wages, complaints

about the employers’ failure to

pay overtime wages or

participation in the Department

of Labor and Industries

investigation of overtime

claims?

Answer "“yes" or "no" after the name of

each Plaintiff.

Answer:

Randy Hume

Chris Davies

Michael Rogge

PRP EE

Robert Taylor

C--4

DATED this 25th Day

1992.

/s/

Presiding Juror

of February,

APPENDIX "D"

D~--1

IN THE SUPREME COURT OF WASHINGTON

RANDY HUME, ET AL,

Respondents,

v.

AMERICAN DISPOSAL COMPANY,

ET AL,

Appellants.

me ee ee ee ee Se See See See See

NO. 60808-3

ORDER GRANTING RESPONDENTS’ MOTION

FOR RECONSIDERATION WITHOUT NEW ARGUMENT

AND ORDER CHANGING OPINION

It is hereby ordered that the

opinion in the above cause, as the same

appears at 124 Wn.2d 656, be changed as

follows:

On the i5th line from the bottom of

page 673, following the word

D--2

"recalculation", insert "of trial and

appellate attorney fees".

It is ordered that further

reconsideration is denied.

Dated this 27th day of October,

1994.

/s/

Chief Justice

APPROVED:

/s/