In Briggs v. Nova Services, No. 79615-7 (Aug. 27, 2009), the Washington Supreme Court rejected wrongful discharge and retaliation claims asserted by two employees who were fired after they complained about the management of their employer and by six other employees who walked off the job after the first two employees were fired.  But, although the employer prevailed in Briggs, the case leaves open important questions about employees’ rights to join together in protest of working conditions.

Eight employees of Nova Services wrote to Nova’s board of directors expressing dissatisfaction with Nova’s Executive Director, Linda Brennan.  They criticized Brennan’s “performance in the areas of leadership, administration, finance, board development, corporate culture, and community and government.”  The employees asked for a meeting with the board and stated that if Nova discharged any of them for raising concerns, all of them would “leave.” 

Nova investigated and attempted to mediate the dispute.  Ultimately, however, Nova fired two of the employees “for insubordination, petitioning grievances directly to the board, and for using ‘company time to enlist the support of fellow managers to undermine [the executive director’s] authority and position.’”  The other employees then threatened to “walk off the job and not return” until Nova reversed the terminations and fired Brennan.  When the board did not respond to their demands, they did walk off the job.  Nova deemed them to have resigned.

The employees sued for, among other things, wrongful termination in violation of public policy and retaliation.  The trial court dismissed their claims.  In an August 27, 2009 opinion, the Washington Supreme Court affirmed the dismissal.

The employees argued that their terminations violated Washington’s public policy that protects employees’ rights to engage in “concerted activities.”  RCW 49.32.020.  The right is expressly not limited to unionized employees.  But, according to four supreme court justices, it is limited to concerted activities aimed at improving “working conditions.” According to the lead opinion, “working conditions” include things like “better wages, improved medical coverage, better treatment from supervisors, lunch and rest breaks, layoffs and recalls, production quotas, and work rules, on the job harassment, and even food prices at in-plant dining rooms.”  But they do not include “managerial decisions, which lie at the core of entrepreneurial control,” including “the choice of one’s supervisor and the wisdom of company practices [or] the hiring and firing of management.”  Thus, “Nova did not violate a clear public policy when it fired two employees based on an undeniable conflict of personalities and stated inability to work within the company.  Nor did Nova violate a clear public policy when it accepted the resignation of the other six employees who would not work for Nova’s choice of an executive director.”

Four justices disagreed.  In the dissenters’ opinion, “concerted activity means ‘action in concert’ or simply acting together” for “mutual aid and protection,” which “includes listing grievances or complaints” and “walking off their jobs for . . . mutual aid and protection . . . in protest of working conditions.”  And “working conditions” included, in this case, the employees’ “dissatisfaction with Brennan’s professional performance as executive director of Nova,” specifically allegations of lack of adequate supervision, failure to properly delegate authority, failure to hire needed staff, failure to accurately apply accrued sick leave, failure to communicate with employees, and failure to adequately manage finances.  Moreover, the dissenters wrote, “Courts also have recognized that employees are protected in engaging in concerted activity for the purpose of seeking the reinstatement of a co-worker.” 

It is important to note that although five supreme court justices (a majority of the court) agreed with the result in the Briggs case, only four justices agreed that the employees had not engaged in protected concerted activities.  One justice’s opinion did not address the issue.  Because the court split evenly on the question of whether the employees in Briggs were engaged in protected concerted activity, the law remains less than clear on that subject.  The lesson for employers, thus, is that caution is appropriate, and advice of counsel should be sought before disciplining or discharging employees who have joined together to assert grievances of any nature.