Olson v. Souris River Telecommunications Cooperative, Inc.

NEUMANN, Justice,

dissenting.

[¶23] I respectfully dissent. The disclaimer in the SRT employees’ manual is not like the disclaimer in Bailey v. Perkins Restaurants, Inc., 398 N.W.2d 120, 121 (N.D.1986), on which the majority relies, nor is it like the disclaimers in Eldridge v. Evangelical Lutheran Good Samaritan Society, 417 N.W.2d 797, 800 (N.D.1987), or in Bykonen v. United Hospital, 479 N.W.2d 140, 142 (N.D.1992). In those cases, the disclaimer was clear, unambiguous, and uneontradicted by language advising the employees the manual was “a source of information” they could “look to with authority and completeness.”

[¶ 24] In Bailey, the disclaimer was prominently displayed at the top of the second page of the manual, surrounded by a box or border, and headed with the clear label “DISCLAIMER.” It was not made ambiguous by other contradictory language regarding the manual’s authority. In Eldridge, the *338disclaimer was prominently placed at the end of the personnel policy handbook in a closing statement directly above the employee’s acknowledgment and signature. The language surrounding it supports and reinforces the message of the disclaimer.

[¶25] SRT’s disclaimer, on the other hand, strikes me as much less direct, much less clear, and much less obvious. It is not set off by a box or border. It is found in a paragraph entitled “Statement of Purpose,” rather than “DISCLAIMER.” It simply says “this ... statement” — not this “handbook” or this “manual” — “is not a contract.” It does not mention “employee” or “contract of employment.” The disclaimer is followed, just two short paragraphs later, by the confusing and contradictory statement that “it is designed to serve as a source of information you can look to with authority and completeness.”

[¶ 26] In Bailey, this court stated, quoting with approval Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 230-32, 685 P.2d 1081, 1088 (1984), “[I]t may be that employers will not always be bound by statements in employment manuals. They can specifically state in a conspicuous manner that nothing contained therein is intended to be part of the employment relationship.... ” (Emphasis added.) Bailey at 122. In my opinion, SRT’s attempted disclaimer is neither specific nor conspicuous.

[¶ 27] I agree with the majority that the statutory source of our at will employment law precludes us from foEowing Swanson v. Liquid Air Corp. That, however, should not prevent us from acknowledging the wisdom and equity in the statement quoted by both the trial court and the majority, a statement which bears repeating here: “We reject the premise that this disclaimer can, as a matter of law, effectively serve as an eternal escape hatch for an employer who may then make whatever unenforceable promises of working conditions it is to its benefit to make.” 826 P.2d at 674. If employers in North Dakota are to be permitted to use this “escape hatch” to snatch away the Elusory promises they have made to their employees, they should at least be required to articulate the escape hatch clearly, conspicuously, speeifi-caEy and unambiguously. SRT has failed to do so. I would affirm the trial court’s finding that SRT made promises of specific treatment in specific situations, but would remand for a recalculation of damages.