International Union of Operating Engineers Local No. 286 v. Sand Point Country Club

519 P.2d 985, 83 Wash. 2d 498, 1974 Wash. LEXIS 927, 86 L.R.R.M. (BNA) 2405

• Court: Washington Supreme Court
• Decided: March 7, 1974
• Docket: No. 42691
• Status: Published

Opinions

Rosellini, J.

Alleging that a majority of the golf course maintenance men employed by the respondents had authorized them to represent the employees in collective bargaining with their employers, and further alleging that the respondents had failed and refused to bargain with them, the appellants brought this action seeking an injunction requiring the respondents to engage in such bargaining. The respondents’ motion for summary judgment was granted.

A single contention is made on appeal — that RCW 49.32.020 imposes upon employers an affirmative duty to bargain with representatives of their employees. It is not suggested that such a duty exists under any constitutional mandate or by virtue of any principle of common law. It appears to be undisputed that the National Labor Relations Board has declined jurisdiction over enterprises such as the golf clubs which the respondents operate.

RCW 49.32, commonly referred to as Washington’s little Norris-LaGuardia act, makes “yellow-dog” contracts unenforceable (RCW 49.32.030). It also places limitations upon the injunctive powers of the courts in dealing with labor disputes.¹ RCW 49.32.011, .030, .060, .072 and .074. It also provides for accelerated appellate review in injunction actions arising out of labor disputes (RCW 49.32.080) and procedural safeguards for persons charged with contempt of court in cases arising under the chapter (RCW 49.32.090-.100).

The term “collective bargaining” is used only once in the act. It appears in the policy declaration, or “preamble,” in the following context:

In the interpretation of this chapter and in determining the jurisdiction and authority of the courts of the state of Washington, as such jurisdiction and authority are herein defined and limited, the public policy of the state of Washington is hereby declared as follows:

Whereas, Under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the' individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections; therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the state of Washington are hereby enacted.

(Italics ours.) RCW 49.32.020.

The appellants do not complain of interference with the right to organize, or to designate representatives of the employees’ own choosing to negotiate the term's and conditions of their employment. Rather, they claim that the respondents are in violation of a duty to engage in collective bargaining, which duty, they say, is imposed upon them in the policy declaration in the statute. In short, they claim a statutory right, not merely to be designated the representatives of the employees for purpose of negotiation, but to have the aid of the courts to compel the employer to negotiate. Fatal to their contention is their inability to point to language in the act which creates such a right.

The rights which are recognized in the policy statement are rights of organization, of concerted activity “for the purpose of collective bargaining or other mutual aid or protections.” But the appellants would read this language as imposing a positive duty upon employers to negotiate with the employees’ representative, once that representative has been chosen. Recognizing that the duty is not expressly imposed, they insist nevertheless that it is implied. If there is not such a duty, they say, the right to organize and to select a representative is useless.

Such a theory discounts the entire history and experience of the labor movement. It was because the laboring man had learned that there is strength in unity that he fought so hard for the right to organize, to picket, and to strike. The legislature, in enacting this measure, apparently considered that the economic pressure which organized labor could exert upon employers was all that was necessary to bring the employer to the bargaining table.

The act recognizes the validity of those tools of economic pressure, the strike and the peaceful picket line. This court also has recognized the legitimacy of those methods of achieving collective bargaining. Associated Gen. Contractors, Inc. v. Trout, 59 Wn.2d 90, 366 P.2d 16 (1961); Northgate Motors, Inc. v. Automobile Drivers Local 882, 48 Wn.2d 356, 293 P.2d 762 (1956). And see cases cited in note 1 supra. The appellants do not claim that these methods are foreclosed to the respondents’ employees, nor do they claim that they would be ineffective.

In a 6-3 decision, this court held in Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965),² that when the declaration of policy was read in context with RCW 49.32.030 (making “yellow-dog” contracts unenforceable) and with the entire act, it manifested a legislative intent that employers should not be permitted to interfere with the exercise of the rights recognized in RCW 49.32.020 by discharging employees who engaged in union activities. It is upon this case that the appellants place their sole reliance.

As was made clear in Krystad v. Lau, supra, we had there to determine whether the courts were powerless to provide a remedy where rights expressly recognized and protected by the legislature were threatened with curtailment or extinction. It was apparent that if employers were free to discharge employees for their union activities, the right to engage in such activities would be rendered meaningless. The operative provision of the act, making unenforceable contracts between employers and employees which were designed to discourage union membership, we found, manifested a legislative intent that employers should not discharge employees for such membership.

In the case before us, it is not contended that the respondents have interfered in any manner with the union activities of their employees or that they have threatened to discharge any employees who may join the appellant organization or any other labor union.

Reading RCW 49.32 in its entirety, we are convinced that its purpose was to facilitate the achievement by employees of an effective bargaining position and that it was not its purpose to provide for compulsory collective bargaining.

Where the legislature has seen fit to impose upon employers an affirmative duty to bargain with their employees, it has done so by express statutory provision. While other states have enacted comprehensive labor-management relations acts (see Krystad v. Lau, supra, n.1, at 831), the legislature of this state has seen fit to regulate such relations only in the case of public employees and health service employees. In 1967, after this court had handed down its decision in Port of Seattle v. ILWU, 52 Wn.2d 317, 324 P.2d 1099 (1958), holding that'public employees may not strike if the public health and safety are involved, the legislature enacted RCW 41.56, governing public employees’ collective bargaining, and imposing upon the employer, in RCW 41.56.100, a duty of engaging in such bargaining. At the same time it expressly refrained from granting the right to strike. RCW 41.56.120. See Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972).

In 1972, the legislature passed an act which governs labor relations of health care employees and makes it an unfair labor practice to refuse to bargain in good faith “with the duly designated representatives of an appropriate bargaining unit of employees” (RCW 49.66.040). This act places heavy restrictions upon the right to strike and to picket (RCW 49.66.060).

Thus it appears that where the legislature has seen fit to impose upon an employer a duty to bargain with the designated representative of his employees, it has at the same time either restricted the right to strike and to picket or has recognized that the right to strike is not available to employees covered by the act. In other words, the imposition of the duty upon the employer has been compensatory. The policy statements of both acts (RCW 41.56.010 and 49.66.010) manifest a legislative awareness that the provisions of the act which are designed to facilitate or implement collective bargaining, are innovative. Neither act purports to amend RCW 49.32.020, as it would have been appropriate to do if the legislature had regarded that act as one providing for compulsory collective bargaining.

In urging the court not to read a new provision into the policy statement contained in RCW 49.32.020, the respondents have drawn to its attention the immense complexity of problems of labor-management relations and the inadequacy of court structure and facilities to administer the law in this field without statutory guides or regulatory agencies.³ Professor Cornelius J. Peck also notes the hazards attendant upon judicial legislation in this area (note 2 supra). If the statute was open to the construction contended for by the appellants, these considerations might well be significant in persuading the court that such a meaning was not intended. We need not weigh them, however, since we find that neither expressly nor impliedly has the legislature introduced into this statute a provision imposing upon employers a duty to bargain with labor representatives.

A further point should be mentioned. In reaching its decision in Krystad v. Lau, supra, this court cited Texas & New Orleans R.R. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548, 74 L. Ed. 1034, 50 S. Ct. 427 (1930). In that case, the Railway Labor Act under consideration had provided that representatives of the employees and employers should be designated by collective action “without interference from the other party.” However, the statute provided no procedure for enforcing the provision forbidding interference. The United States Supreme Court held that it had the power to supply the remedy where the legal right had been created by “language suitable to that end.” In Krystad v. Lau, supra at 840, we quoted with approval the following statement of the Supreme Court:

“. . . While an affirmative declaration of duty contained in a legislative enactment may be of imperfect obligation because not enforceable in terms, a definite statutory prohibition of conduct which would thwart the declared purpose of the legislation cannot be disregarded. . . .”

In that case, there was found in the act an implied prohibition of conduct which interfered with the rights recognized by the legislature. In Krystad v. Lau, supra, the right recognized and protected was of the same nature, although the legislature had not expressly decreed that it should be exercised “without interference.” Here, the alleged duty is an affirmative duty and, therefore, assuming the duty were found to exist, it would be open to the objection that it was of “imperfect obligation” because there is no provision for its enforcement.

Another related objection which can be launched against the finding of such an implied affirmative obligation is that the duty allegedly imposed is not described with sufficient definiteness to enable an employer to know when, with whom, and under what conditions and for what purposes he is required to negotiate. In State v. Reader’s Digest Ass’n, Inc., 81 Wn.2d 259, 273, 501 P.2d 290 (1972), commenting upon the concept of statutory vagueness as a denial of due process, we quoted the following from Connolly v. General Constr. Co., 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126 (1926):

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

And see Bradshaw v. Seattle, 43 Wn.2d 766, 264 P.2d 265, 42 A.L.R.2d 800 (1953), holding RCW 47.36.060 too indefinite to impose upon municipalities an affirmative duty to install traffic signs at intersections.

Another aspect of the problem which deserves notice is that the language relied upon is contained in the policy statement. We have generally adhered to the principle that such statements are not intended to and do not in fact create legal obligations. Whatcom County v. Langlie, 40 Wn.2d 855, 246 P.2d 836 (1952); State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916). And see In re Bale, 63 Wn.2d 83, 385 P.2d 545 (1963) and Huntworth v. Tanner, 87 Wash. 670, 152 P. 523 (1915). In State ex rel. Berry v. Superior Court, supra, this court said at page 32:

Both in England and in this country it was at one time a common practice to prefix to each law a preface or preamble stating the motives and inducement to the making of it; but it is not an essential part of the statute and is now generally omitted. It is not only not essential and generally omitted, but it is without force in a legislative sense, being but a guide to the intentions of the framer. As such guide it is often of importance. In this sense it is said to be a key to open the understanding of a statute. The preamble is properly referred to when doubts or ambiguities arise upon the words of the enacting part. It can never enlarge. It is no part of the law. Sedgwick, Construction of Statutory & Constitutional Law (2d ed.), pp. 42, 43; 1 Story, Constitution (5th ed.), book 3, ch. 6; Edwards v. Pope, 3 Scam. (Ill.) 465; Bouvier’s Law Dictionary.

It is true that in Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965), we gave some substantive effect to the policy statement relied upon in this action. We did so because a reading of the act as a whole, and particularly the provision relating to “yellow-dog” contracts, convinced us that it was the legislative intent to secure for employees the right to engage in union activities and it was manifest that if a remedy was not provided to prevent employer interference with that right, the legislative purpose would be thwarted. It was not our intent in that case to lay down a new rule respecting the import of policy statements contained in legislation.

If the statute were open to the construction placed upon it by the appellants, all of these considerations would be of force in persuading the court that it was not the legislative purpose to provide for compulsory collective bargaining when it enacted RCW 49.32. We need not weigh them, however, since we find that neither expressly nor impliedly has the legislature introduced into this statute a provision imposing upon employers a duty to bargain with labor representatives.

Courts in other jurisdictions which have been asked to find in statutes of this kind an affirmative duty to engage in collective bargaining have consistently refused to do so. The leading case is Petri Cleaners, Inc. v. Automotive Employees Local 88, 53 Cal. 2d 455, 349 P.2d 76, 2 Cal. Rptr. 470 (1960). That case was reaffirmed in Messner v. Journeymen Barbers Local 256, 53 Cal. 2d 873, 351 P.2d 347, 4 Cal. Rptr. 179 (1960), and was followed by Building Serv. Local 47 v. St. Luke’s Hosp., 11 Ohio Misc. 218, 227 N.E.2d 265 (1967), and Peters v. Poor Sisters of St. Francis Seraph, Inc., 267 N.E.2d 558 (Ind. App. 1971). The appellants have cited no case in which a court has found in such a statute the meaning for which they contend.

There being no affirmative duty on the part of the respondents to engage in collective bargaining, the trial court properly dismissed the action.

The judgment is affirmed.

Finley, Hunter, Hamilton, Stafford, Wright, Utter, and Brachtenbach, JJ., concur.

1 See Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397 (1936), holding RCW 49.32.072, .073 and .074 (then Rem. Rev. Stat. (Supp.) § 7612-7, 8 and 9) unconstitutional as an encroachment upon the judicial power of the courts. See also Gazzam v. Building Serv. Employees Local 262, 29 Wn.2d 488, 188 P.2d 97, 11 A.L.R.2d 1330 (1947); Hanke v. Teamsters Local 309, 33 Wn.2d 646, 207 P.2d 206 (1949); Ostroff v. Laundry Drivers’ Local 566, 37 Wn.2d 595, 225 P.2d 419 (1950); Union Elec. & Plumbing Supply, Inc. v. Plumbing & Pipe Fitters Local 32, 45 Wn.2d 17, 272 P.2d 144 (1954), and Audubon Homes, Inc. v. Spokane Bldg. & Constr. Trades Council, 49 Wn.2d 145, 298 P.2d 1112 (1956), approving injunctions where picketing was found to be coercive. In Yakima v. Gorham, 200 Wash. 564, 94 P.2d 180 (1939), this court held unconstitutional a municipal ordinance prohibiting peaceful picketing, which was in conflict with the public policy of the state announced in RCW 49.32.

2 This case has been criticized. See C. Peck, Judicial Creativity and State Labor Law, 40 Wash. L. Rev. 743 (1965).

3 One of the first questions which would have to be resolved would be: Upon what matters is the employer required to negotiate? The United States Supreme Court interprets the National Labor Relations Act (29 U.S.C. § 158(d)) rather strictly insofar as it imposes a duty to bargain with union representatives, holding that the duty exists only with respect to those matters designated in the statute. NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 2 L. Ed. 2d 823, 78 S. Ct. 718 (1958). The Ninth Circuit Court of Appeals has so held in Seattle First Nat’l Bank v. NLRB, 444 F.2d 30 (9th Cir. 1971).