Professional Staff Nurses Ass'n v. Dimensions Health Corp.

RODOWSKY, Judge. We granted certiorari in this case to decide whether the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 ¹³⁴ through 160 (1994), preempted the Maryland anti-strikebreakers statute, Maryland Code (1991), § 4-403 of the Labor and Employment Article (LE). The Court of Special Appeals held that the Maryland statute was preempted. Professional Staff Nurses Ass’n v. Dimensions Health Corp., 110 Md.App. 270 , 677 A.2d 87 (1996).

We conclude that the constitutional issue should not have been reached. The petitioner, Professional Staff Nurses Association (the Association), filed a complaint in the Circuit Court for Prince George’s County against the respondent, Favorite Nurses, Inc. (Favorite), in which four other organizations were also named as defendants. In its complaint the Association described itself as an unincorporated labor organization, representing employees in the nursing industry throughout Maryland. These included approximately 700 registered nurses working at four health care facilities in Prince George’s County, all four of which were owned by the other respondent in this Court, Dimensions Health Corporation (DHC).

The single count complaint alleged that Favorite had maliciously interfered with an advantageous economic relationship that the Association had with DHC. The complaint was filed on April 11, 1995. Before writs of summons were prepared for the defendants, Favorite, on April 13, 1995, voluntarily appeared in the action and moved to dismiss the complaint for failure to state a claim upon which relief could be granted. At the same time DHC moved to intervene as a defendant, and it anticipatorily joined in the motion to dismiss.

Intervention was allowed by the circuit court. Process was never issued against the defendants originally named in the complaint, and none of those defendants, other than Favorite, appeared in the action. The circuit court granted the respondents’ motion to dismiss. Consequently, our statement of facts is limited to the allegations of the complaint.

Since 1986 the Association, as representative of the 700 registered nurses (RNs) working at DHC’s four health care facilities in Prince George’s County, had entered into collective bargaining agreements with DHC. ¹³⁵ A contract that was to expire on November 30, 1993, had been extended to November 30, 1994. Negotiations for a new contract, however, had broken down in the fall of 1994, and on December 14, 1994, the Association had sent to DHC the ten-day notice of a strike against a health care facility required by 29 U.S.C. § 158 (g). On the tenth day of the notice period, during a federal mediation, the Association and DHC agreed to extend the expiration of their collective bargaining agreement to February 28, 1995. When the latter date arrived, DHC “agreed not to take any unilateral action concerning the contractual wages, hours, and other terms and conditions of employment until March 10, 1995.” Complaint, ¶ 6.

DHC notified the Association on March 10 that DHC would no longer deduct union dues, but the parties continued to negotiate. Then, on April 4, the Association notified DHC that its 700 registered nurse members would begin their strike and picketing on April 14,1995. Paragraph 12 of the complaint, in relevant part, alleges that Favorite “has provided and does provide replacement RNs for striking RNs during strikes at health care facilities located in the State of Maryland (including the four facilities owned and operated by DHC ... ) and other states.” Paragraph 17 of the complaint avers: “At all times mentioned herein, including, but not limited to the two ten (10) day strike notice periods (from December 14 to December 24, 1994, and from April 4 to April 14, 1995), Defendant ] ... Favorite ... ha[s] intentionally and without legal justification interfered with the continuing economic/business relationship between Plaintiff [Association] and DHC by providing, obtaining, recruiting, or referring for employment in the place of the striking 700 RN [Association] members, individuals (i.e., RN strikebreakers) who customarily and repeatedly offer to be employed in the place of striking RNs.” (Emphasis added).

The language of ¶ 17 tracks the language of the Maryland anti-strikebreakers statute, LE § 4-403. That statute in relevant part reads: ¹³⁶ “(a) Recruitment restricted.—A person who is not directly interested in a strike may not provide, obtain, recruit, or refer, for employment in place of a striker, an individual who customarily and repeatedly offers to be employed in place of strikers. “(c) Penalty.—A person who violates any provision of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 3 years or both.” Inasmuch as there was no contract between the Association and DHC, the complaint necessarily seeks to plead that version of the tort that remedies “wrongfully interfering with economic relationships.” Natural Design, Inc. v. Rouse Co., 302 Md. 47, 69 , 485 A.2d 663, 674 (1984). “To establish tortious interference with prospective contractual relations, it is necessary to prove both a tortious intent and improper or wrongful conduct.” Macklin v. Robert Logan Assocs., 334 Md. 287, 301 , 639 A.2d 112, 119 (1994). One way in which to prove wrongful conduct is to show that the defendant “violated the criminal law.” Id. The respondents have consistently argued, inter alia, that, in an attempt to satisfy the tort’s elements, the complaint relies on Favorite’s alleged violation of LE § 4-403(a).

Thus, if a violation of § 4-403 is the only improper conduct by Favorite alleged in the complaint, and if § 4-403 is unconstitutional because it conflicts with the NLRA and thereby violates the Supremacy Clause of the United States Constitution, Favorite has not tortiously interfered with the relationship between the Association and DHC. The circuit court in a written opinion granted the motion to dismiss on two grounds. Finding persuasive a line of cases led by Lodge 76, Int’l Ass’n of Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132 , 96 S.Ct. 2548 , 49 L.Ed.2d 396 (1976), the trial court concluded that Congress intended “that certain economic self help measures not be regulated” and that the intent “encompasses [DHC’s] hiring ¹³⁷ replacement nurses from temporary nursing service agencies ____” The circuit court also held that, even if § 4—403(a) were not preempted, the Association had failed sufficiently to plead a cause of action. The circuit court quoted from Natural Design the following elements of the broader form of the tort: “(1) [Ijntentional and wilful acts; (2) calculated to cause damage to the plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes malice); and (4) actual damage and loss resulting.” Natural Design, 302 Md. at 71 , 485 A.2d at 675 (interior quotations omitted).

With respect to the first two elements listed above, the circuit court held that “[i]t is impossible for [the Association] to proffer that Favorite willfully and intentionally interfered with [the Association’s] and [DHC’s] economic and business relations.” Further, there were “no allegations of an unlawful purpose” in the view of the circuit court. Finally, the court did not reach the damages element “because the factual predicate, the strike, has not taken place.” Nevertheless, the court observed that substantial damages would be “problematical at best.” This was because “loss due to the current lack ... of a collective bargaining agreement ... cannot be assigned to Favorite----” The Association appealed to the Court of Special Appeals. As that court read the complaint, “[t]he conduct at issue ... is Favorite’s ‘providing, obtaining, recruiting, or referring for employment in the place of the striking 700 RN [Association] members, individuals (i.e., RN strikebreakers) who customarily and repeatedly offer to be employed in the place of striking RN’s.’ ” Professional Staff Nurses Ass’n, 110 Md.App. at 287 , 677 A.2d at 95 . These allegations described a violation of LE § 4-403, said the court, and “satisfied the unlawful or improper conduct element of the tort claim.” Id. at 291, 677 A.2d at 97 .

The Court of Special Appeals, based on the foregoing determination, concluded that it was “compelled to address the ¹³⁸ question of federal preemption,” id., and the court held that the Maryland statute was preempted. The Court of Special Appeals noted the alternative ground of decision by the circuit court, id. at 275 , 677 A.2d at 89 , but the opinion of the intermediate appellate court does not discuss that non-constitutional ground of decision. We granted the Association’s petition for certiorari. The petition raises the single issue of preemption and relies only on violation of the anti-strikebreakers statute for the improper conduct element of the interference tort. 1 Oral argument in this Court took place almost two full years after April 14, 1995, the date on which the Association gave notice that the strike would start.

We were advised at argument by counsel for the Association that no strike has ever taken place and that the members of the Association have continuously worked at DHC without a contract. Thus, nurses furnished by or through Favorite have not replaced striking nurses at the DHC facilities. I We first address whether, assuming the constitutionality of LE § 4-403(a), the Association has stated a cause of action under Maryland non-constitutional tort law. “[T]his Court has regularly adhered to the principle that we will not reach a constitutional