Washington State Labor Retaliation Claim Preempted by National Labor Relations Act

A Washington federal trial court has dismissed an employee’s state law retaliation claim, holding that it was preempted by the federal National Labor Relations Act. Cope v. WinCo Foods, LLC, No. CV-07-5064-FVS, 2009 U.S. Dist. LEXIS 21948 (E.D. Wash., Mar. 2, 2009). The employee brought his claim under a Washington statute which protects an employee’s right to engage in “concerted activity” without employer interference. The court held that the claim was preempted because, through passage of the NLRA, Congress actually protected the same activity as the state statute (Garmon preemption doctrine). Accordingly, the claim was dismissed.

Washington’s Law

The state law, RCW §49.32.020 (commonly known as Washington’s Little Norris-LaGuardia Act or “WNLA”), was enacted originally in 1919 to outlaw “yellow dog” contracts and curtail the state’s power to enjoin labor strikes. Operating Engineers v. Sand Point, 83 Wn.2d 498, 499, 519 P.2d 985 (1974). Washington courts have interpreted the statute broadly to provide a cause of action for employees claiming discriminatory or retaliatory treatment or discharge for engaging in concerted activity in both union and non-union settings. Pulcino v. Fed Express, 141 Wn.2d 629 (2000) and Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965); Bravo v. Dolsen, 125 Wn.2d 745 (1995) and Briggs v. Nova Services,135 Wn. App. 955 (2006).

The Facts

The employee in this case, Jared Cope, worked for WinCo Foods as a manager in one of the company’s meat departments. He was a member of the union, WinCo Foods #45 Department Manager Hourly Employee Association, which had a collective bargaining agreement with the company. Cope was terminated in July 2007 allegedly for using racial slurs and tolerating his subordinates’ use of ethnic slurs. He filed a grievance under the CBA’s grievance procedure. After a hearing before the Department Head Committee, WinCo was directed on July 31, 2007, to reinstate Cope with back pay, benefits, and seniority. Cope alleged that a WinCo representative then told him that the company was not going to reinstate him as the manager of a meat department. Instead, he would have to work in some lesser position. Cope said he told the WinCo representative that he was unwilling to accept those terms. This led to an impasse. Eventually, WinCo construed Cope's refusal to accept any position other than meat department manager as a decision to quit working for the company.

The Case

Cope sued WinCo, claiming the company’s refusal to reinstate him to his former position was in retaliation for his grievance in violation of the state statute, and that it gave rise to a cause of action. The company argued that Cope’s claim was preempted under the U.S. Supreme Court’s NLRA Garmon preemptiondoctrine. The doctrine “holds that the national interest in having a consistent body of labor law requires the [NLRB] have exclusive jurisdiction to regulate activities that arguably constitute unfair labor practices.”

The court found that Cope’s state retaliation claim was preempted because it was identical to a claim that could have been, but was not, presented to the NLRB. The court explained that an employer who retaliates against an employee for filing a grievance commits an unfair labor practice under the NLRA. Thus, the court said it was clear that the facts giving rise to Cope’s state retaliation claim fall within the scope of the NLRA. Accordingly, under the Garmon doctrine, the court concluded that Cope’s state retaliation claim was preempted and dismissed the claim for lack of jurisdiction.

What Employers Should Do

This case is a reminder to employers, both union and non-union, to avoid retaliating or otherwise discriminating against employees who engage in activity protected by the National Labor Relations Act. Even if state law regulating this activity proves ineffective, the NLRB will be able to offer a remedy. Such protected activity goes beyond grievance filing and other union-related activities. It includes other “concerted activities” such as:

• group letter writing,
• employee meetings to discuss terms and conditions of employment,
• employee discussions of terms and conditions of employment,
• employee protests of company policy on behalf of others, and
• any other employee activity that could be construed as engaged in for the benefit of other employees.

Employers should provide their managers and supervisors with annual training to help them identify concerted activity and manage lawfully in the face of such activity. Furthermore, before disciplining, retaliating or taking other adverse employment action against an employee who may have engaged in “concerted activity,” employers should seek legal counsel to avoid unnecessary liability for a claim brought under state law and/or an unfair labor practice charge under the NLRA. Employers also should remember that “retaliation” is interpreted broadly to cover more than traditional adverse employment actions and includes any act or comment by a supervisor or manager that could dissuade a reasonable person from engaging in the protected conduct. SeeBurlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006).

Please contact a Jackson Lewis attorney with any questions you may have about this decision and other workplace laws.