Burnside v. Simpson Paper Co.

Madsen, J.

(concurring) — Although I concur in the result reached by the majority, I disagree with the majority’s analysis of Burnside’s implied contract claim in section III of the opinion. Under the facts of this case, Simpson Paper’s Management Guide could not be used to govern the terms of Burnside’s employment. By holding otherwise, the majority treats the Management Guide as if it were a general employee handbook, despite fundamental differ*109enees between the two types of documents. The trial court should have dismissed Burnside’s claim for breach of implied contract.

Implied Contract Claim

This court set out in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 228, 685 P.2d 1081 (1984) two theories under which an employment manual can modify what would otherwise be a contractual relationship that is terminable at will. Terms can be implied from an employment manual under a traditional theory of implied contracts, where the court looks for the existence of offer, acceptance, and consideration. Thompson, at 228; Gaglidari v. Denny’s Restaurants, Inc., 117 Wn.2d 426, 433, 815 P.2d 1362 (1991). Alternatively, a manual can alter the employment relationship if it promises specific treatment in specific situations, thereby creating an atmosphere of job security and fair treatment and inducing employees to remain with the employer. Thompson, at 230; Gaglidari, at 433.10

Under neither of these theories does Simpson Paper’s Management Guide qualify as a source for implied terms of contract. As to the traditional contract theory, there was no offer and acceptance. Rather, the Management Guide’s terms reveal that it is a unilateral statement of corporate and management policy. There was no evidence presented to the effect that its terms were submitted to employees for their approval and acceptance.

Nor did Simpson Paper’s Management Guide announce promises of specific treatment in specific areas. The Management Guide was issued only to its • supervisors or department heads. Verbatim Report of Proceedings, at 283, 1642-43. Because the manual was distributed only to Simpson Paper supervisors, it did not "announce” to the general employees any "promises” of specific treatment in specific *110situations. See Adler v. Ryder Truck Rental, Inc., 53 Wn. App. 33, 36, 765 P.2d 910 (1988), review denied, 112 Wn.2d 1013 (1989); Hatfield v. Columbia Fed. Sav. Bank, 57 Wn. App. 876, 883, 790 P.2d 1258 (1990). Accordingly, unlike traditional employee handbooks, which are distributed tó all employees, the Management Guide cannot be construed as an employer’s attempt to create an atmosphere where employees will be induced to remain with the employer.

Also, unlike traditional employee handbooks, the Management Guide does not set standards governing the conduct of general employees, nor could it, for it was not distributed to the employees as a whole.11 In these regards, Thompson is quite instructive:

It would appear that employers expect, if not demand, that their employees abide by the policies expressed in such manuals. This may create an atmosphere where employees justifiably rely on the expressed policies and, thus, justifiably expect that the employers will do the same. Once an employer announces a specific policy or practice, especially in light of the fact that he expects employees to abide by the same, the employer may not treat its promises as illusory.

(Italics mine. Italics omitted.) Thompson, at 230. Since Thompson, our cases have required that, in order to establish an employee manual contains promises of specific treatment, the manual must purport to guide employee/employer relations generally and the employee seeking to rely on provisions in such a document must present evidence that he actually knew of, and justifiably relied on, the provisions. Stewart v. Chevron Chem. Co., 111 Wn.2d 609, 762 P.2d 1143 (1988); Gaglidari. In Stewart, this court found that an employee handbook, designed to govern employee/employer relations, did not contain specific promises of specific treatment and did not, therefore, form the basis for a claim of breach of implied contract. The court further noted that the *111plaintiff presented no evidence to show that he was aware of, or relied on, the provisions of the handbook. Stewart, at 613-14. In sharp contrast to the facts in this case, the plaintiff in Gaglidari was given a copy of the employee handbook on her first day of employment. Provisions of the handbook were explained to her and she was required to sign a form acknowledging receipt of the manual and agreeing to abide by the rules. Gaglidari, at 428. Under these facts, this court found that a contract had been formed between the defendant and the plaintiff. By providing the handbook, with explanation, the company had made an offer which the plaintiff accepted by signing an acknowledgment and agreement form. Gaglidari, at 433.

Again, in contrast to the cases in which this court found a promise of specific treatment, Simpson Paper stated in the introduction to its Management Guide thát the company reserves the right to amend the Guide’s provisions and that the provisions will not necessarily be followed in all instances:

The statements contained in this guide constitute orders of the president to be observed throughout the company until a modification or withdrawal is properly authorized. If unusual circumstances arise which require action contrary to them, you must obtain clearance through your supervisor from the president.

Clerk’s Papers, at 639.

With this statement, Simpson Paper makes clear that the Management Guide does not announce promises which can be justifiably relied on by its employees. There can be no promise where the speaker reserves the right to alter, and even deviate from, the policies being stated. See Shankle v. DRG Fin. Corp., 729 F. Supp. 122, 124 (D.D.C. 1989). This court held as much in Stewart when it held that a "supposed promise” in an employee handbook "may be illusory”, and thus not be an enforceable promise at all, "if it is . . . discretionary on the part of the promisor”. Stewart, at 613.

Moreover, supervisor manuals generally cannot be used to furnish contractual terms even when the contract dis*112pute, as here, is between an employer and a supervisor. Hatfield, at 884; Owens v. American Nat’l Red Cross, 673 F. Supp. 1156, 1165 (D. Conn. 1987); Bell v. South Cent. Bell, 564 So. 2d 46, 48-49 (Ala. 1990). As long as the employer has not distributed the supervisor manual to the general employees, the manual cannot be construed as representing promises to any employee, even to a supervisor. Hatfield, at 884; Owens, at 1165. This is especially true where the manual expressly reserves the right to change or deviate from its provisions. See, e.g., Tritle v. Crown Airways, Inc., 928 F.2d 81, 85 (4th Cir. 1990).

I do not mean to imply that a supervisor manual can never be used as a source of contractual terms. The Hatfield case makes clear that even a supervisor manual can be treated as a part of the contractual relationship if the employer makes the manual generally known and available to all its employees. Hatfield, at 884. Under these circumstances, the employer could be construed as announcing promises to its employees in an attempt to induce greater employee performance. In short, employees could be justified in relying on such promises. See Rosinski v. Electronic Data Sys. Corp., 770 F. Supp. 359 (E.D. Mich. 1990) (holding that absent an employer’s actions of widely distributing a supervisor manual with intent to induce greater employee performance, the supervisor manual generally cannot be used to furnish terms of contract), aff’d, 935 F.2d 270 (6th Cir. 1991); Triplett v. Electronic Data Sys., 710 F. Supp. 667 (W.D. Mich. 1989), aff’d, 900 F.2d 260 (6th Cir. 1990) (same holding as Rosinski).

In this case, however, there simply is no evidence that Simpson Paper took any steps to make the manual generally available to its employees. The closest that the evidence comes on this point is Burnside’s testimony that he kept his supervisor manual near his desk and that it was "ready for reference by myself and other members of the department at all times”. Verbatim Report of Proceedings, at 287, 289, 466.

This evidence fails to establish that Simpson Paper had acted to make the manual generally known. Burnside’s tes*113timony does not establish that anyone else in his department, whether supervisors or anyone else, ever read the manual. Nor does it establish anything about the manual’s availability to employees outside Burnside’s department. Simply put, a supervisor manual is not "generally available” for purposes of construing an employment relationship if the evidence is simply that the manual could have been, but not necessarily was, used by others. See Lakeside v. Freightliner Corp., 612 F. Supp. 10, 13 (D. Or. 1984).

Conclusion

The majority holds that the facts of this case present a jury question as to whether the provisions of Simpson’s Management Guide established the terms of an implied employment contract. The evidence established that the Management Guide was distributed only to management and that Burnside’s copy was lying in his office, accessible for others to use. I cannot imagine a circumstance in which a judgment as a matter of law would be more appropriate.

Because Simpson Paper’s Management Guide did not govern matters of general employee conduct, was not disseminated to the employees generally, and reserved Simpson’s right to amend the provisions at any time, the manual could not be used in determining the terms of Burnside’s employment. The trial court erred when it failed to dismiss Burnside’s claim for breach of implied contract.

Reconsideration denied March 15, 1994.

Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) also discusses two other alternative theories under which an at-will employment can be altered. Those theories involve either an employee giving additional consideration or a discharge that violates public policy. Thompson, at 233. Neither of these theories is relevant to Burnside’s implied contract claim.

Simpson Paper issued a traditional employee handbook, entitled the Salaried Employee Handbook, which governs these matters of general employee conduct. Clerk’s Papers, at 428-633. The Salaried Employee Handbook was entirely distinct from the Management Guide. It is the Salaried Employee Handbook, not the Management Guide, to which Thompson more readily applies.