Rhoads v. Evergreen Utilities Contractors, Inc. , 105 Wash. App. 419 ( 2001 )

Sweeney, J.

(dissenting) — The question before the court, for me, is whether the tort claim here is “sufficiently independent of the collective-bargaining agreement to withstand the pre-emptive force of § 301.” United Steelworkers of Am. v. Rawson, 495 U.S. 362, 369, 110 S. Ct. 1904, 109 L. Ed. 2d 362 (1990). The regulations discussed in the majority opinion (those established by the National Apprenticeship Act (29 U.S.C. § 50) and the Standards of Apprenticeship approved by the Washington State Apprenticeship and Training Council) set the standard of conduct for negligence if, but only if, the collective bargaining agreement (CBA) permits or imposes a duty on the Joint Apprenticeship and Training Committee of the Northwest Line Construction Industry (JATC) in the first place. And only the CBA establishing the JATC can speak to whether such a duty exists.

This is a suit by apprentice union electrical workers against an entity created by a labor contract.

The JATC is a product of a CBA negotiated by several northwest electrical unions and the Northwest Line Constructors Chapter of the National Electrical Contractors Association, Inc. (an employer group). It has no existence independent of the relationship between the unions and the contractors. Its obligations and liabilities, in fact its very authority to assume any obligations and liabilities, arise only from the document responsible then for its existence— the CBA.

Turning to that document, the CBA provides in relevant part that

Section 1. There shall be a Joint Apprenticeship and Training Committee .... This Committee shall make area standards in conformity with the National Apprenticeship and Training Standards for the Outside Electrical Contracting Industry governing the selection, qualifications, education, and training of all Outside Apprentices.

Clerk’s Papers (CP) at 294.

The JATC was also charged, again by the CBA, for supervision:

Section 3. The Committee shall supervise all matters involving apprenticeship and training in conformity with the provisions of this Agreement and the registered Area Apprenticeship Standards.

CP at 295.

For me, it puts the cart before the horse to begin the discussion of the JATC’s liability in tort with the extrinsic safety standards themselves. It is not these standards in and of themselves that permit the imposition of some obligation on the JATC. It is the CBA. So then to evaluate the obligation of this joint management and labor committee, it is necessary to read and interpret the CBA.

I am unable to distinguish the majority holding in Rawson. There, pursuant to a collective bargaining agreement, management and labor formed a “joint management-labor safety committee.” The allegations were that the safety committee failed in its obligations to union workers and as a result they died in a disastrous mine fire. Rawson, 495 U.S. at 365. The Court noted from the safety committee’s response to interrogatories that

“by the contract language” of the collective-bargaining agreement, the Union had caused the establishment of the joint safety committee with purported influence on mine safety issues, and that members of the safety committee had failed reasonably to perform inspections of the mine or to uncover obvious and discoverable deficiencies in the mine safety program.

Rawson, 495 U.S. at 370. It then went on to conclude that “[t]he only possible interpretation of these pleadings, we believe, is that the duty on which [the workers] relied as the basis of their tort suit was one allegedly assumed by the Union in the collective-bargaining agreement.” Id. The parallels with the facts here are inescapable. The argument advanced against federal preemption is precisely the same, i.e., that the existence of a duty in tort can be determined without reference to the CBA.

As the Rawson Court asked, so we ask, would the JATC have had any obligation to the plaintiffs under some general duty of reasonable care? Rawson, 495 U.S. at 370. And the answer here, as in Rawson, is clearly it would not. These parties are not unrelated strangers. Their relationship is created by the requirements of the CBA.

The fact that the parties refer to no specific terms of the CBA for any duties makes the point. The JATC may have no authority to assume any, or it may have none; or, as the plaintiffs suggest, it may be obligated or authorized to provide for the safety of the apprentices.

Accordingly, whether the JATC had any obligation to these plaintiffs in tort rises and falls on the CBA. And necessarily, then, whether the parties intended that it assume the obligation for the safety of these workers also does. We do not, or at least we should not, reach the question of whether the duty was breached until this threshold question is resolved. That threshold question encompasses the nature of the entity created by the CBA, specifically the JATC, and what duties it was capable of assuming. We must look to the CBA to determine whether the JATC had to comply with the National Apprenticeship Act or any other federal or state statute or regulation directed to the health, safety, or welfare of these apprentice employees.

I would affirm the trial judge’s dismissal of this complaint.