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Bynum v. Boeing Co.

April 14, 1997

JOHN BYNUM, SERGE COSSU, WILLIAM COYLE, JERRY DUNKIN, THOMAS ENGLEHART, MARK GOODELL, APPELLANTS, DENNIS HEATH, DEFENDANT, ROLAND HEBERT, RUSSELL HENN, LAWRENCE HILL, APPELLANTS, DAVID KAUFMANN, DEFENDANT, TOM MAINA, ANDREW SANTOS, RICK SHELLENBERGER, FRANK SOLLARS, CRAIG STAHLKE, JOHN C. TAYLOR, KENT VAAGEN, RONALD WIECEK, AND WILLIAM YOUNG, APPELLANTS,
v.
THE BOEING COMPANY, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 93-2-05160-3. Date filed: 07/21/95. Judge signing: Hon. Robert Alsdorf.

Authored by Allendoerfer, J.p.t.,* Visiting Judge. Concurring: Faye C. Kennedy, Ronald E. Cox.

The opinion of the court was delivered by: Allendoerfer

ALLENDOERFER, J.P.T. *fn1

Boeing denied any such guarantee or promise. The appellants advanced claims for breach of contract, promissory estoppel, wrongful wage withholding, common law fraud, negligent misrepresentation, and negligent supervision. All of these claims except common law fraud were dismissed on summary judgment. After a seven week trial, a jury returned defense verdicts on the fraud claims of ten appellants, and the remaining eight appellants thereafter stipulated to defense verdicts. None of the issues raised in this appeal concerns the trial. This appeal concerns only the trial court's summary judgment dismissal of five of the appellants' six claims. We affirm those dismissals.

FACTS

In 1988 and 1989 Boeing conducted a nation-wide recruiting campaign for mechanics and electricians to complete work on its 747-400 production line. As part of this campaign, Boeing sent teams of recruiters to various parts of the country. Those teams consisted of recruiters, Boeing employees of long standing who interviewed applicants to determine their skills; and human resources representatives, Boeing employees who answered questions about the terms and conditions of employment and extended contingent offers to qualified individuals. The offers were contingent upon passing a medical screening and completing other paperwork, including a "New Employee Travel and Relocation Agreement". *fn2 No firm offers were made until these requirements were met. Some appellants remembered being given a toll-free telephone number to contact a Boeing representative in Seattle for answers to any remaining pre-employment questions.

The recruiting teams had attended general briefing sessions by the human resources department. They were told that they could mention the substantial backlog of airplane orders at Boeing, but no instruction was given on how to respond to questions about projected length of employment.

The recruiting teams had a common understanding that no guarantees could be made, and that Boeing would not give employment contracts to hourly employees for specific lengths of time. Moreover, all recruiting teams were thoroughly familiar with the cyclical nature of the aerospace industry and the resulting affect on employment stability.

The recruited employees were subject to a collective bargaining agreement (CBA) between Boeing and its unions. The recruiting teams took a copy of the CBA to the recruitment sessions for reference. The teams were not, however, directed to provide or to discuss the CBA with the recruits, although that was done occasionally.

The appellants were among approximately 500 recruits interviewed at various locations in the United States. Although each appellant contends that during his interview a Boeing representative made some sort of promise or representation regarding employment tenure at Boeing, the representations vary among the 18 appellants. Some contend they were promised a specific number of years during which they would be insulated from layoff (varying from 5 years to retirement in 27 years), while others maintain that they were given broader projections (varying from a range of years to "work ... 'into the next century'"). Some appellants contend they were "promised" or "guaranteed" a certain longevity of employment, while others concede that at most Boeing recruiters made representations about the backlog of orders for Boeing aircraft, from which they inferred that years of work would be available. *fn3 No representations, promises, or guarantees regarding longevity were placed in writing.

The appellants were all skilled mechanics and electricians, most with experience in aerospace related industries. Some had previously been involved in unions, and some were in a laid off status at the time they were recruited by Boeing. All appellants were initially assigned to Boeing's new 747-400 aircraft production program at Boeing's Everett facility. From 1990 to 1992 the business environment in the aircraft industry softened significantly. As a result, production rate increases did not occur, and Boeing's overall personnel requirements began dropping.

In light of their relative lack of seniority, Everett workers were "bumped" out of Everett by more senior employees from other Boeing divisions and then laid off under the CBA. As some of the most junior employees at Boeing, three of the appellants were laid off in 1990. The remaining 15 appellants were laid off in 1992.

Discussion

"When reviewing an order granting summary judgment, the appellate court engages in the same inquiry as the trial court." *fn4 An appellate court will affirm summary judgment if "'there is no genuine issue as to any material fact", and "the moving party is entitled to a judgment as a matter of law".' *fn5 On summary judgment, all facts and reasonable inferences are to be considered in the light most favorable to the non-moving party, and all questions of law are reviewed de novo. *fn6

No Express or Implied Contract

A threshold question is whether a contractual term existed in the relationship between Boeing and the appellants, either express or implied, limiting Boeing's right to terminate the appellants at will. *fn7

Such a term may be expressed in a variety of ways, including the establishment of a specific duration of employment, or, in cases of indefinite duration, the establishment of a just cause requirement for termination. In either case the court must look for objective manifestations of the parties' intent, and must base its findings upon evidence of mutuality and consideration. *fn8

In the absence of evidence of an express contract, an implied contract may be found from the court's review of "the alleged 'understanding', the intent of the parties, business custom and usage, the nature of the employment, the situation of the parties, and the circumstance of the case[.]" *fn9

In this case such evidence of contractual intent is not present, even when all facts and reasonable inferences are considered in the light most favorable to the appellants. The Boeing recruiting teams clearly had no intention or authority to offer employment contracts for specific terms of years, or to offer guarantees of long term layoff protection. Such offers violate company policy, the CBA, and business custom and usage. From a recruiter's standpoint, Boeing's backlog of airplane orders was valuable promotional material regarding Boeing's long term economic stability, and provided an employment incentive for recruits concerned about cyclical layoffs in the industry. The use of this evidence as a recruiting strategy, however, falls short of constituting bargained for contractual mutuality, express or implied. *fn10

Another exception to the employment-at-will doctrine is that an employment relationship will be terminable only for cause if the employee has specifically given "additional consideration" for such protection. *fn11 To invoke this exception, the consideration given by the employee must go beyond the services he or she is required to perform, and must result in both a detriment to the employee and a benefit to the employer. *fn12

Consideration can consist of an act or forbearance, the creation or alteration of a legal relationship, or the exchange of a return promise. *fn13

In Roberts the court rejected the employee's assertions that longevity of service, foregoing other job opportunities, moving his family, and deferred compensation were additional consideration. *fn14 The Greaves court similarly rejected the argument that an agreement to transfer employment was adequate independent consideration. *fn15

The same analysis is applicable in this case. Although all appellants moved their families and homes to take jobs with Boeing in Everett (or gave up paid moves to other employment opportunities), such moves and the associated costs were contemplated by the parties as being inherent in the employment offer by Boeing. The job opportunity, if accepted, existed only in Everett. If a layoff occurred within one year, relocation costs would be reimbursed by Boeing. The fact of moving to Everett, therefore, cannot be ...


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