(dissenting) — I respectfully dissent. The evidence presented (1) fails to establish that the restricted workers were engaged in unprotected labor activity; (2) WPPSS failed to abide by its own rules and procedures in imposing sanctions against the six workers; and (3) WPPSS acted as accuser, investigator, judge, jury and sentencer. This method of imposing its restrictions constituted an intentional and unjustifiable third party interference with valid contractual relations between Bechtel and the six workers.
WPPSS' security officer, Robert Manion, who was at the scene on November 17, 1982, filed a report describing the incident, but he was unable to identify any of the participants. He interviewed some of the passengers on the bus in an effort to determine the identity of the "picketers". The identity of the passengers interviewed and the contents of their statements were never revealed. The officer did not interview any of the "picketers" or any of the six workers restricted for participating in the melee. Out of the estimated 75 workers involved in the picketing, 14 individuals were identified as either being involved, or possibly involved, and 6 were restricted from WPPSS' property.
On November 19, three workers were advised by letter they had violated WPPSS' published security regulations by participating in a disruption of construction activity, and three others were advised by letter they had violated WPPSS' regulations by physically assaulting a fellow worker. The letters did not state specific allegations of mis*922conduct or advise the six which security regulations had been violated. Each of the six were "immediately restricted indefinitely from access to any Supply System property". The six were given 5 days to submit in writing any circumstances which mitigated their actions.
Each of the six workers responded in writing and admitted they were present at the rally. Each averred he drove separately into an adjoining parking lot, noticed a large crowd forming in the swing shift parking lot, and went to investigate. Although no illegality is involved in entering the swing shift parking lot, WPPSS attacks the credibility of this explanation since the morning crew had no reason to enter the swing shift parking lot. Four of the six workers categorically denied they participated in acts of violence or disrupted construction activities. Two stated they were involved in altercations, but acted in self-defense. Four of the workers stated they had witnesses to corroborate their statements.
Thereafter, on December 1, the day WPPSS received the statements from the six, Detrick, Nicacio, and R. Saltz were restricted from access to WPPSS property for 30 days, and Lane, Wright, and L. Saltz were restricted for 1 year. It is unclear from the record whether WPPSS even considered the accuseds' statements before making their final decision.
Klingelhoefer, WPPSS' manager of Safeguards and Investigations, testified that WPPSS followed its internal procedures which provided for immediate suspension from WPPSS property when such suspension was deemed to be in the best interest of WPPSS. WPPSS' procedures, which were posted and distributed to all the workers, specified that all individuals subject to discipline would be given 5 days to respond in writing as to any mitigating factors and that "[t]he Supply System will, in all cases, provide a fair and impartial review of reports of violations of Safety/ Security rules that may result in disciplinary action against an individual".
Klingelhoefer testified:
*923[Njothing in the responses changed the story from what we had originally from our interviews and our investigative process. As I stated, the individuals confirmed that they were present at the time. Essentially, I saw no mitigating circumstances that would cause me to believe that we had misidentified any of these individuals or their roles.
Klingelhoefer also testified that the reason he felt there were no mitigating circumstances was because the letters from the six did not contradict or address the issues in the informants' statements.
Klingelhoefer further testified that when the November 19 letters were sent, WPPSS had already concluded that there had been a violation of WPPSS rules. Additionally, Klingelhoefer made his final conclusions and recommendations to his superiors before receiving the written statements from the six.
Harrington, one of the three people who made the ultimate decision to restrict access, testified the letters from the six workers confirmed that the individuals were in fact there. On the same day WPPSS restricted access to the six workers, their employer Bechtel terminated their employment. The termination was later upheld by an arbitrator because the restriction from WPPSS' worksite meant "there was no available work for the six Grievants ..."
Three of the workers were restricted simply because they were present at a rally where violent acts occurred without further proof they had engaged in those acts. Neither the trial court nor WPPSS addressed the issue of whether the gathering was a protected labor activity. The majority concludes the violence and unlawful acts rendered the entire incident an unprotected labor activity. Chapter 7 of the National Labor Relations Act, 29 U.S.C. § 157, does not protect any concerted activities which are unlawful, violent, in breach of contract or indefensible. However, under these facts, the majority applies this section too broadly. Chapter 7 does not mean that if violence occurs during protected labor activities, the entire incident becomes unprotected. *924Rather, the courts have uniformly held that unauthorized acts of violence on the part of individual strikers are not chargeable to other union members in the absence of proof that identifies them as participating in such violence. Methodist Hosp. of Ky., Inc. v. NLRB, 619 F.2d 563 (6th Cir. 1980); NLRB v. Sea-Land Serv., Inc., 356 F.2d 955 (1st Cir. 1966); NLRB v. Lambert, 211 F.2d 91 (5th Cir. 1954); NLRB v. Deena Artware, Inc., 198 F.2d 645 (6th Cir. 1952); Berkshire Knitting Mills v. NLRB, 139 F.2d 134 (3d Cir. 1943), cert. denied, 322 U.S. 747 (1944); 2 The Developing Labor Law 1019-20 (2d ed. 1983).
As stated in Methodist Hosp. of Ky., Inc., at 567, the employer may not rely upon unauthorized acts of misconduct as a basis for holding the union members were engaged in unprotected behavior. Rather, the employer must offer proof of identity as to the particular miscreant. The three were wrongfully terminated.
As to the three that were suspended for physically assaulting a fellow worker, if in fact each did participate in an unlawful assault and were not acting in self-defense, then they were not engaged in protected labor activity. According to WPPSS' witnesses, those actively engaged in assaults were identified based solely on statements from witnesses who requested anonymity. WPPSS did not interview any of the accused or any other workers at the rally. The only people interviewed were the passengers on the bus and WPPSS security officers. Further, WPPSS discounted the workers' explanations because the workers did not address the issues raised by the undisclosed statements; but the workers had not been told the contents of those statements. WPPSS' method of determining who should be suspended did not comport with even the most rudimentary concepts of fairness. The six workers were told they were guilty of unnamed acts which were a violation of undesig-nated rules and guilt was determined through interviews with undisclosed witnesses who gave statements, the contents of which were likewise not disclosed. The workers were advised by letter, not that they may offer evidence of *925their innocence, but only that they may provide statements of mitigating factors. Although each worker denied wrongdoing, their statements were given no weight by those charged with the responsibility of imposing sanctions. If the three who were restricted for physical violence did assault a fellow worker, they were involved in an unprotected labor activity. However, WPPSS' method of establishing identity and culpability leaves in serious doubt the validity of its final conclusion that the three accused assailants were in fact guilty.
Under a theory of agency or ratification, a union worker can be accountable for the violent acts of other union members. NLRB v. Sea-Land Serv., Inc. supra. However, agency or ratification cannot be based on the mere failure to abandon the activity or failure to repudiate and denounce the violence. International Ladies' Garment Workers' Union v. NLRB, 237 F.2d 545 (D.C. Cir. 1956). This rule is a necessary safeguard to the union and its members since in the confusion and tense situation created by a strike accompanied by picketing, it would be a simple matter to incite acts of violence and destroy the protected status of the strikers. Sea-Land Serv., Inc., at 966.
I conclude that under RCW 49.32.050(5), (6), and (9), and RCW 49.36.010,3 the November 17 gathering was a protected union activity. The noted statutes authorize *926union activity for legitimate purposes, which include giving publicity to the existence of a labor dispute, and authorize assembling and promoting union interests. Mere presence at such an activity wherein violence occurred did not render the entire gathering an unprotected activity, and the method of determining who was involved in violent acts was so unfair, the ultimate determination was tainted. Thus, I would conclude that the workers were engaged in protected labor activity and were illegally excluded from WPPSS' property.
WPPSS has a "Policy for Review of Violations of Safety/ Security Regulations” and is legally bound to follow those procedures in dealing with perceived violations of those regulations. Brady v. Daily World, 105 Wn.2d 770, 718 P.2d 785 (1986).
WPPSS' written policy for review of violations of safety/ security regulations was posted on all of the construction sites, and procedures were published internally within WPPSS and transmitted to Bechtel and the individual work force. The procedures provided for "a fair and impartial review of reports of violations of Safety/Security rules that may result in disciplinary action against an individual". This fair and impartial review was applicable to incidences where the individual was immediately suspended for fighting. WPPSS acted as accuser, investigator, judge, jury and sentencer. WPPSS accused the six of violating its regulations, WPPSS' security officials conducted the investigation, WPPSS' managers determined a violation had occurred, and WPPSS meted out the punishment.
As stated by C. Montesquieu in L'Esprit des Lois (1748):
All would be lost if the same man or the same body of leaders, either of the nobles or of the people, exercised these three powers: that of making laws, that of executing the public resolutions, and that of judging criminal and civil cases.
W. Gwyn, The Meaning of the Separation of Powers 110 (1965) (quoted in In re Juvenile Director, 87 Wn.2d 232, 238, 552 P.2d 163 (1976)). The investigation conducted by *927WPPSS, as previously described in this dissent, was so one-sided and so devoid of impartiality in the methods used to collect and evaluate evidence as to constitute a violation of WPPSS' promise to conduct a fair and impartial review. The workers were prejudged without a hearing, convicted without a voice, and punished severely without any recourse. The six were not accorded a fair and impartial review as promised in published WPPSS policy provisions.
Plaintiffs also alleged that WPPSS intentionally and unjustifiably interfered with the valid contract of employment with Bechtel. The facts support such a contention.
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.
Restatement (Second) of Torts § 766 (1977).
The elements of the tort of intentional and unjustifiable third party interference with valid contractual relations or business expectancies are: (1) existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964).
The first, second and fourth elements are easily satisfied. The six workers' union had a contract and labor stabilization agreement with Bechtel. The individuals worked under the terms of those agreements when on WPPSS property and there is no dispute regarding WPPSS' knowledge of this contractual arrangement. Further, when WPPSS suspended the six workers, Bechtel terminated the workers for the sole reason they were "restricted by Supply System". *928All the workers suffered pecuniary loss because they were unable to obtain other employment. The third element is the key. Did WPPSS intentionally and unjustifiably interfere with the workers' contractual relations? The interference must be both intentional and improper.
Interference is intentional if the actor acts for the primary purpose of interfering with the contract or if the actor does not act for the purpose of interfering with the contract or desire it, but knows that the interference is certain or substantially certain to occur as a result of his action. In other words, the rule applies to an interference that is incidental to the actor's independent purpose and desire but known to him to be a necessary consequence of his actions. Restatement (Second) of Torts § 766, comment j. Here, WPPSS can be presumed to know that if it suspended the six workers, the likelihood of termination by Bechtel was inevitable.
Factors the court considers when determining whether the interference is improper are: (1) the nature of the actor's conduct; (2) the actor's motive; (3) the interests of the other with which the actor's conduct interferes; (4) the interests sought to be advanced by the actor; (5) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (6) the proximity or remoteness of the actor's conduct to the interference; and (7) the relations between the parties. Restatement (Second) of Torts § 767.
When analyzing the actor's conduct, the issue is not simply whether the actor is justified in causing the harm, but rather, whether he is justified in causing it in the manner in which he does cause it. Here, WPPSS' failure to accord the accused workers any of the rights regarded as basic to a fair determination of culpability (i.e., the right to know who your accusers are, the right to confront your accusers, the right to present witnesses on your behalf) leads to the conclusion that the manner in which WPPSS caused the harm was not justified. WPPSS had the right to try to avert violence and possible work stoppage. But the legitimate end *929they sought to achieve will not whitewash the improper method of achieving it. Although WPPSS was attempting to protect an important interest of its own, it did so in an indefensible manner. WPPSS should be held liable for intentional and unjustifiable third party interference with a valid contractual relationship.
This case should be remanded for further proceedings to determine what damages were sustained by the workers as the proximate result of WPPSS' actions.
Reconsideration denied October 10, 1986.
Review denied by Supreme Court January 6, 1987.
RCW 49.32.050:
"(5) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
"(6) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
" (9) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in RCW 49.32.030."
RCW 49.36.010:
"Unions legalized. It shall be lawful for working men and women to organize themselves into, or carry on labor unions for the purpose of lessening the hours of labor or increasing the wages or bettering the conditions of the members of such organizations; or carry out their legitimate purposes by any lawful means."