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Pulcino v. Federal Express Corp.3/1/1999
fore, 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.
After a lengthy historical discourse, the court concluded that this statute creates actionable rights, "among which rights were that {employees} be free from coercion, interference and restraint from and by their employers in organizing or joining a labor union and in designating such union as their agent for collective bargaining." Despite criticism by commentators, the court has adhered to its decision that RCW 49.32.020 is more than a prefatory policy statement. In Bravo, the court clarified that RCW 49.32.020 prohibits not only discriminatory discharge of employees but also interference, restraint, or coercion with concerted activities as well:
"{I}nterference, restraint, or coercion" has a broader meaning than "discharge". The Legislature's use of the former terms in the disjunctive suggests it intended to prohibit a wide range of actions that could operate to deprive workers of protections under the statute. Had the Legislature intended to prohibit only discriminatory discharge, it could easily have chosen to use that term. We decline to substitute the Legislature's language with a more narrow term that it . . . did not{ } elect to use. The Bravo court also recognized that "a discharge which violates RCW 49.32.020 . . . gives rise to a tort of discharge in violation of a clear mandate of public policy."
But the reverse is not always true. In cases where a wrongful discharge is contrary to a public policy that is not related to labor organization, RCW 49.32.020 does not apply, and the employee is limited to a tort claim. In White, a case unrelated to employee organization, the court held that the tort of wrongful discharge in violation of public policy does not extend to "wrongful disciplinary action less than discharge . . . ." So the permissible scope of claims against employers differs depending on whether the employee proceeds under a tort or under a statutory theory. Thus, Pulcino's argument that the court erroneously limited her claim to wrongful discharge succeeds if she brought her claim under RCW 49.32.020, but fails if she relied only on the tort of wrongful discharge.
FedEx argues that White applies because Pulcino's complaint did not mention RCW 49.32.020 and alleged only that FedEx's actions were "contrary to the public policy of this state." This argument fails because, as Pulcino points out, "a statute not addressed below but pertinent to the substantive issues which were raised below may be considered for the first time on appeal." Although she did not specifically cite RCW 49.32.020 in her complaint, Pulcino alleged facts sufficient to support a claim under the statute and she cited both it and Bravo in her memorandum opposing FedEx's motion for summary Judgement. On appeal Pulcino is permitted to clarify that she is making a claim under RCW 49.32.020. The trial court erred in limiting her claim to wrongful discharge because Bravo clearly directs that employees be permitted to sue over adverse employment actions which they alleg
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