Petitioners Reply Brief — Public Service Co. v. Thompson

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90 = ] 173 4 } oT a D

cas jew we 191

No. JOSEPH F. SPANIOL, JR.

a ee iT

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990 --

PUBLIC SERVICE COMPANY OF COLORADO

and R. M. RICHARDS,

‘. Petitioners,

WILLARD A. THOMPSON,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of the State of Colorado

PETITION FOR A WRIT OF CERTIORARI

DAVID W. KERBER *

KEVIN W. HECHT

KELLY, STANSFIELD & O’ DONNELL

550 15th Street, Suite 900

Denver, Colorado 80202

(303) 825-3534

JAMES R. MCCOTTER

General Counsel

PUBLIC SERVICE COMPANY

OF COLORADO

550 15th Street, Suite 890

Denver, Colorado 80202

(303) 571-7161

Attorneys for Public Service

Company of Colorado and

* Counsel of Record R. M. Richards

A EE PE TT TE TW Seeete Te

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Are statements made by an employer to an employee

in disciplinary letters which are required by past practice

pursuant to a collective bargaining agreement absolutely

privileged for the reason that any state law claim of

defamation is pre-empted by federal labor policy?

(1)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................... FRO NTE wy RE CN i

py Sy OM Soy el 4 yy te iv

a) oe snasnesbcncunalaciengtaucd 1

en onc cch daccccvssebasnes ete 2

STATUTORY PROVISIONS INVOLVED ............... .... 2

DLALEMEN?L OF-THE CASB ............:....2...........:....0... 2

REASONS FOR GRANTING THE WRIT .................... 5

I. The Decision Below Raises Significant And Re-

curring Problems Concerning The Ability Of

Supervisors To Truthfully And Forcefully Com-

municate With Their Employees And Union

Representatives Without Fear Of Personal Lia-

bility For Statements Made In Disciplinary Let-

ters And Grievance Proceedings .......................... 5

II. The Decision Below Raises A Conflict Between

The Colorado Supreme Court, The Tenth And

The Ninth Circuit Courts Of Appeals, The

Supreme Court Of Alabama, The Supreme Court

Of Michigan And The Supreme Court Of

Re ha RR RON A oe 13

he Tks cs sad ciehdnaninelcnmndenicin 17

APPENDIX A

Colorado Supreme Court Opinion — _......W........ ae la

APPENDIX B

Colorado Court of Appeals, Division III Opinion... 19a

APPENDIX C

Order, District Court, City and County of Denver,

State of Colorado 00... Se gti an)

APPENDIX D

Petitioners’ Motion for Summary Judgment to

District Court, City and County of Denver, State

of Colorado ... ... 5: DO TODM CAE LEONE NOAA . ~ 30a

(iii)

TABLE OF AUTHORITIES

CASES: Page

Agriss v. Roadway Ewpress, Inc., 334 Pa.Super.

295, 483 A.2d 456 (Pa.Super.Ct. 1984) ............ 16

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

2 REORDER Roce pa RL Ue Dera ine sea aeRO 10

Bird v. Meadow Gold Products Corp, 60 Misc. 2d

212, 302 N.Y.S.2d 701 (Sup.Ct. 1969) ...... SN 16

Brooks v. Solomon Co., 542 F.Supp. 1229 (N.D.Ala.

ED esha cia cies Vana are ee eee 12, 15

Caterpillar, Ine. vuW ‘itd. 482 U.S. 386 (1987).. 14

Ezekiel v. Jones Motor Co., 374 Mass. 382, 372

DE NR, WHEE cscaceccckinaavccckovsereeaceiccccealas 16

Fulghum v. United Parcel Service, Inc., 424 Mich.

2k ee Bi | ee nen 15

General Motors Corp. v. Mendicki, 367 F.2d 66

DI I noes ecru cncereains coca ces 4,10, 14, 15

Goldberg v. Kelly, 397 U.S. 254 (1970) ................. 5

Green v. Hughes Aircraft Co., 630 F. Supp. 423

SURE OE fos coo contend ce ee ee 15

Hasten v. Phillips Petroleam Co., 640 F.2d 2

CIGER Cit Boees oc... Rae ort PN OY: Sakti 4 10, 14

Honaler v. Florida Power & Light, 95 LRRM

Es RM AES A vse rete tet ce ia ata 15

Hull v. Central Transport, Inc., 628 F. Supp. 784

ecm <r 15

Hyles v. Mensing, S49 F.2d 1213 (Sth Cir..1988) 14

Joftes v. Kaufman, 324 F. Supp. 660 -€D.D.C.

eae ee eee ee ETT Ws 10, 12, 16

Johnson v. Anheuser Busch, Inc., 876 F.2d 620

(8th Cir, 1989) 0000... oon i4

Kloch v. Ratcliffe, 221 Neb. ot, N W. od O16

bio Rees IF kt he Se AE BROS Be Te wae 15

Krasinski v. United Parcel Service, Ine., 121

Il.2d 483, 530 N.E.2d 168 (1988) _...... — & 20

Lingle v. Norge Division, 486 U.S. 399 (1988) _ 9,10, 12

L inn vo. United Plant Guard W orkers, 383 U. Ss. 53

(1966) . of oe . WH,

Louisville & Nasheilh R.R. Co. v. ershiell 586

S.W.2d 274 (Ky.Ct.App. 1979)

TABLE OF AUTHORITIES—Continued ©

Page

Macy v. Trans World Airlines, Inc., 381 F. Supp.

RAS CRP es REED soci isec diet scuctcetiee a 15

Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085

Cae I oan oe an ee 15

Reynolds Metals Co. v. Mays, 547 So.2d 518 (Ala.

SOD vcsctetiesonccces cirtaiicessvixticaniteakendaners mates 15

Rougeau v. Firestone Tire & Rubber Co., 274

$0.20 454 (La. App. 1973). ........ccccccccccccccsencceessessen 16

Seid v. Pacific Bell, Inc., 685 F. Supp. 906 (S.D.

Shane v. Greyhound Lines, Inc., 868 F.2d 1057

(Oe Ce, TOR ick ek eck cee 14

Teamsters Union v. Lueas Flour Co., 369 U.S. 95

RTI nhc npn o- dacedvequukécd. seh utiadaackce eae 7

Textile Workers v. Lincoln Mills of Alabama, 353

i SED Pe tii eakoeeee 7,18

Turner v. Gateway Transportation Co., 569

5.W.2d 358 (Mo.App. 1978) ..........5...-2..c.-0ecccceces 16

United Steeiworkers ve. Warrier and Gulf Naviga-

tien Co., 368 U-S. S74 (i960) ............-....... 7

United Steelworkers v. Rawson, -——._ U.S. -—,

$30 BAS. TGS CGO cai chee 9, 11,12

CONSTITUTIONAL PROVISIONS AND

STATUTES:

U.S. Const. amend. VI _..................=< PEt STEERS Ae 5

BOT icky We ROTORS asco uco ee ee 2

Be aes 8 Pe ee ee 14

MURS 2S os 3,8

rR Oe Mh ag YY epee Ohl en 2, 6, 10, 12

Se RI eee MOMURD Sco cccececkicicec ee eee 7

20 UU 055 SOO ine ee ee

MISCELLANEOUS:

Elkouri and Elkouri, How Arbitration Works,

673-674 (4th ed. 1985) —.... apie core remeten: Chea

IN THE

Supreme Court of the United States

OcTOBER TERM, 1990

No. ————

PuBLIC SERVICE COMPANY OF COLORADO

and R. M. RICHARDs,

Petitioners,

WiLLARD A, THOMPSON,

Respondent,

Petition for a Writ of Certiorari to the

Supreme Court of the State of Colorado

PETITION FOR A WRIT OF CERTIORARI

The petitioners, Public Service Company of Colorado

and R. M. Richards, respectfully pray that a Writ of

Certiorari issue to review the judgment and opinion of

the Supreme Court of the State of Colorado entered in

this proceeding on October 22, 1990.

OPINIONS BELOW

The Opinion of the Supreme Court of Colorado is re-

ported at 800 P.2d 1299 ¢Colo, 1990) and appears in

Appendix A hereto at pp. la-lS8a. The Decision of Divi-

sion III of the Colorado Court of Appeals is reported at

773 P.2d 11038 (Colo.App. 1988) and appears in Appendix

B hereto at pp. 19a-27a. The Order of the District Court,

City and County of Denver, was unreported and appears

in Appendix C hereto at pp. 28a-29a.

\ eae

JURISDICTION

The judgment of the Supreme Court of the State of

Colorado was entered on October 22, 1990. This Petition

for

* Certiorari is being filed within ninety days of that

date. This Court’s jurisdiction is invoked under 28 U.S.C.

1257ia).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 29:

£171. Declaration of purpose and policy

It is the policy of the United States that—

‘a! sound and stable industrial peace and the ad-

vancement of the general welfare, health, and safety

of the Nation and of the best interests of employers

and employees can most satisfactorily be secured by

the settlement of issues between employers and em-

ployees through the processes of conference and. col-

lective bargaining between employers and the repre-

sentatives of their employees;

S185(a). Venue, amount and citizenship

Suits for violation of contracts between an ep-

ployer and a labor orzanization representing em-

ployees in an industry affecting commerce as defined

in this chapter, or between any such labor organiza-

tions, may be brought in any } vege court of the

United States having jurisdiction of the parties, with-

out respect to the amount in controversy or without

regard to the citizenship of the parties.

» STATEMENT OF THE CASE

This case arose out of two disciplinary letters given to

tespondent by his supervisor, Petitioner, Mark Richards.

The first involved a situation where Respondent was dis-

ciplined as a result of his conduct at a building owned by

the State of Colorado, a customer of Petitioner Public

Service Company of Colorado.'’ As a result of Respond-

ent’s conduct, he was suspended for five days and given a

letter of suspension charging him with sexually harassing

some of the employees of the State of Colorado. Respond-

ent, being a member of International Brotherhood of

Electrical Workers, Local No. 111, filed a grievance under

the Public Service Company I.B.E.W. Local No, 111 Col-

lective Bargaining Agreement (hertinafter “Collective

Bargaining Agreement”) to challenge the suspension. At

the second step of the grievance procedure mandated by

the Collective Bargaining Avreement, Public Service, the

Union and Respondent all agreed to settle the matter by

reducing the suspension from five days to two days.

Additionally, Respondent agreed to go to counseling and

the word “sexual” was removed from the letter of sus-

pension, .

The second letter was a written reprimand issued sev-

eral months later. Respondent had. been placed on “evi-

dence of illness” which, pursuant to the terms of the

Collective Bargaining Agreement, required him to pro-

vide a doctor’s certificate before he was allowed to claim

sick time on his time ecard. Respondent nevertheless

claimed sick time on his time card without a doctor's

certificate. As a result, his supervisor, Mr. Richards,

disciplined Respondent for falsifying his time card by

claiming sick time. Respondent presented his grievance

of this letter directly to his third level supervisor as he

was entitled to do pursuant to Section 9a) of the Na-

tional Labor Relations Act, 29 U.S.C. £1591a). The

third level supervisor voided the written reprimand and

issued another written reprimand to Respondent stating

that Respondent’s entry on his time card indicated ignor-

' Subsidiaries of Public Service Company of Colorado which are

not wholly-owned subsidiaries are Aquafarm Associates of Colorado,

Inc., Natural Fuels Corporation, Fisher Ditech Company, United

Water Company, The Hillerest Ditch and Reservoir Company, The

Rast Boulder Ditch Company, Las Animas Consolidated Canal Com-

pany, and The Consolidated Extension Canal Company. (Rule 29.1)

ance of the required policy/procedures and malingering.

This revised written reprimand was not challenged by

Respondent. Both letters were sent to Respondent’s

Union representative pursuant to past practice agreed to

by the parties that all disciplinary riotices be in writing

and be sent to the Union.’

_ Then, several months later, Respondent brought suit

against his supervisor, Mark Richards, and Public Serv-

ice Company of Colorado, Petitioners here, alleging that

the contents of the letters of suspension and written

reprimand were libelous.

On October 14, 1986, Petitioners filed a Motion for

Summary Judgment before the Trial Court arguing,

among other things, that the contents of the disciplinary

letters were absolutely privileged, and therefore the case

‘should be dismissed, inasmuch as any claim of defama-

tion by an employee covered by a collective bargaining

agreement relating to statements made in disciplinary

proceedings was pre-empted by federal labor law. (Ap-

pendix D at pp. 30a-3la). The Trial Court did not rule

on Petitioner’s federal claims, but did grant the Motion

for Summary Judgment based upon state law considera-

tions. (Appendix C at pp. 28a-29a).

The Court of Appeals for the State of Colorado af-

firmed the Trial Court’s decision but on the alternate

federal grounds. The Court of Appeals determined that

the statements in the disciplinary letters were absolutely

privileged under federal labor law, following General

Motors Corp. v. Mendicki, 367 F.2d 66 (10th Cir. 1966),

2 Pursuant to Article 30 of the Collective Bargaining Agreement

between the I.B.E.W. and Public Service Company, the parties

agreed that any and all practices mutually agreed to and accepted

by the parties shall continue unless changed pursuant to the provi-

sions of the Agreement. Disciplinary actions were required by past

practice to be in writing and mailed to the Union thus making this

requirement a part of the Collective Bargaining Agreement through

Article 30.

and Hasten v. Phillips Petroleum Co., 640 F.2d 274

(10th Cir. 1981). (Appendix B at p. 23a).

The Supreme Court of Colorado reversed the decision

of the Court of Appeals, determining that statements

made in disciplinary letters and grievance proceedings

were not absolutely privileged, but were only subject to a

qualified privilege. Since Respondent had alleged in his

pleadings that the statements were made with malice,

the Supreme Court determined that a genuine issue of

fact remained and remanded the matter for trial. (Ap-

pendix A at p. 18a).

REASONS FOR GRANTING THE WRIT

I. The Decision Below Ruises Significant And Recurring

Problems Concerning The Ability Of Supervisors To

Truthfully And Forcefully Communicate With Their

Employees And Union Representatives Without Fear

Of Personal Liability For Statements Made In Dis-

ciplinary Letters And Grievance Proceedings.

In the history of American jurisprudence, notice of

the offense with which one is charged is an essential

element of fairness. U.S. Const. amend. VI. Individuals

need to know what charges are brought against them

so that they can appropriately and fully respond to them.

Id.; Goldberg v. Kelly, 397 U.S. 254, 267-268 (1970).

The same is true in the employment context. When an

employee is charged with committing an offense against

his employer, an essential element of fairness is that the

employee know of the misconduct charged so that he can

respond to the charge and challenge it if appropriate.

Elkouri and Elkouri, How Arbitration Works, 673-674

(4th ed. 1985).

The process through which an employee is informed

of offenses committed against his employer is either by

oral communication from his or her supervisor or

through written notice. Written notices are the more ap-

propriate vehivle for counseling, warning and communi-

cating with an employee inasmuch as the direction and

instruction contained in the written notice lessen the pos-

sibility of misunderstanding among the parties and in-

crease the degree of industrial due process that a dis-

ciplined employee is accorded. (Appendix B at p. 26a).

The decision of the Colorado Supreme Court being

challenged here subjects supervisors to potential individ-

ual liability and debilitating trials for statements made

in the course of their duties and pursuant to the re-

quirements of collective bargaining agreements that they

provide written disciplinary notices to employees and at-

tend and participate in grievance adjustment sessions.

The decision of the Colorado Supreme Court chills the

ability of the Company and the Union to deal with each

other to resolve problems in the workplace because

under the decision, supervisors and employers in general

will be reluctant to vigorously and fully state what the

problem is for fear of being required to defend the state-

ments in lengthy and costly litigation.

Also, employers will be less likely to resolve grievances

or to accommodate employees in the adjustment of dis-

ciplinary notices, for such adjustment or compromise

might provide an evidentiary basis for the employee to

argue in a defamation action that the accommodation by

the employer in changing the disciplinary notice shows

that the initial notice was untrue.

A stated purpose of the Labor Management Relations

Act of 1947, 29 U.S.C. §171(a), is to promote indus-

trial peace by the settlement of issues between employ-

ers and employees through the process of conference and

collective bargaining between employers and the repre-

sentatives of their employeés. The Act also provides that

“(fjinal adjustment by a method agreed upon by the

parties is declared to be the desirable method for settle-

ment of grievance disputes arising over the application

or interpretation of an: existing collective-bargaining

ve hen 7 2

agreement.” 29 U.S.C. §173(d). The grievance ma-

chinery created by the collective bargaining system is at

the very heart of the system of industrial self-govern-

ment, and the grievance procedure is a part of the con-

tinuous collective bargaining process. United Stee!-

workers v. Warrior and Gulf Navigation Co., 363 U.S.

574, 581 (1960).

This Court determined in Textile Workers v. Lincoln

Mills of Alabama, 353 U.S. 448 (1957), that Section 301

of the Labor Management Relations Act of 1947, 29 .

U.S.C. § 185, authorized federal courts to fashion a body

of federal law common throughout the country. In

Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 104

(1962), this Court determined:

The ordering and adjusting of competing interests

through a process of free and voluntary collective

bargaining is the keystone of the federal scheme to

promote industrial peace. State law which frustrates

the effort of Congress to stimulate the smooth func-

tioning of the process strikes at the very core of fed-

eral labor policy.

What the Colorado Supreme Court has done in this

case is to inhibit and discourage the free flow of infor-

mation through disciplinary letters required by the Col-

lective Bargaining Agreement. As a result, the decision

of the Colorado Supreme Court inhibits the free flow of

information from supervisors to employees and their

union representatives such that matters in the work-

place can not be easily resolved. This outcome is con-

trary to federal labor policy.

The facts of this case provide a perfect example. One

of the instances which gave rise’ to Respondent’s claim

of libel was a disciplinary letter of suspension for sexual

harassment. The suspension was for five days. This

matter was processed through the grievance procedure

in a grievance filed by Respondent. (Appendix A at p.

4a). At the second step of the grievance procedure, the

matter was resolved by removing the offending word,

“sexual,” reducing the suspension from five days to two

days, and requiring Respondent to receive counseling.

(Appendix B at pp. 2la-22a). Under the new rule of

law created by the Colorado Supreme Court, such a set-

tlement would be very difficult since both the Company

and supervisor would be required to be vigilant for the

subsequent litigation which may be on the horizon.

Similar circumstances surround Respondent’s second

claim of libel, which resulted from a written warning

stating that Respondent had falsified his time card. As

a result of an appeal by Respondent directly to his third

level supervisor, as allowed under 29 U.S.C. § 159(a),

that supervisor voided the original written warning, but

gave him another more acceptable warning, which found

Respondent guilty of malingering. Again, such a resolu-

tion would not be likely where the supervisor would

know that the change in the original warning would be

evidentiary fodder for the employee in a _ subsequent

defamation case. This is exactly what happened here.

Respondent waited until these matters had been resolved

amiably through the grievance process with the Respon-

dent’s union and the Respondent, and only then filed a

defamation action seeking damages against his imme-

diate supervisor and his employer.

In its decision, the Colorado Supreme Court provides

only qualified immunity for those supervisors who are

required by a collective bargaining agreement to issue

written letters of disciplinary action. Therefore, in Colo-’

rado, they are entitled to immunity as long as the state-

ments are shown not to have been made with actual

malice. This, héwever, is of little comfort to any super-

visor who is required to go to trial since inevitably the

question of actual malice is one of fact which cannot be

resolved by summary judgment. Cf., Appendix A at pp.

15a-18a; Krasinski v. United Parcel Service, Inc., 124

Tl].2d 483, 530 N.E.2d 468 (1988). It is not only the po-

tential for personal liability but the process of going

through trial that chills the full and free discussion of

views among employers, employees and unions. It is this

impediment to the free flow of information in disciplin-

ary letters and grievance proceedings that violates fed-

eral labor policy here.

The Supreme Court of Colorado spent a great deal of

time determining that the case under review was not

pre-empted under Lingle v. Norge Division, 486 U.S. 399

(1988). In Lingle, this Court determined that Section

301 pre-empts the application _of state law in an action

if such action requires the interpretation of the terms of

the collective bargaining agreement. Lingle involved an

employee who filed suit claiming retaliatory discharge

because she had allegedly been fired for attempting to

secure workers compensation benefits. Lingle was cov-

ered by a collective bargaining agreement which pro-

vided relief if she was discharged without just cause.

The Court concluded’ that the state claim of retaliatory

discharge would not be pre-empted merely because both

proceedings would require the analysis of the same facts.

Id. at 409-419.

However, this Court did not have an opportunity in

Lingle to review a case such as presented here where the

state claim, while not necessarily requiring the interpre-

tation of the terms of the Collective Bargaining Agree-

ment, nevertheless interferes with the discipline and

grievance process arising out of the Collective Bargain-

ing Agreement. Cf., United Steelworkers v. Rawson,

US. , 110 S.Ct. 1904 (1990). In the case

under review, federal labor policy would still require

pre-emption of this cause of action because allowing the

state defamation action to proceed would interfere with

the discipline, grievance and arbitration process estab-

lished in the Collective Bargaining Agreement. There-

fore, while the Supreme Court of Colorado may have

correctly applied the Lingle analysis in that the deter-

mination of Respondent’s defamation claims may not re-

quire an interpretation of the Collective Bargaining

Agreement (Appendix A at pp. 6a-13a, Part B), it was

wrong in Part C of its opinion (Appendix A at pp. i3a-

15a) when it concluded that Respondent’s claims were

not pre-empted as a result of the interference with fed-

eral labor policy. This requires reversal of the Colorado

Supreme Court decision.

Federal labor policy favors the peaceful resolution of

labor grievances through conferences and bargaining

processes. 29 U.S.C. §171(a). See, Mendicki, 367 F.2d

at 70; Joftes v. Kaufman, 324 F.Supp. 660, 663 (D.D.C.

1971). In light of the overriding policy to encourage,

facilitate and effectuate the settlement of issues between

employers and employees, an unqualified and absolute

privilege should clearly be available with respect to all

oral and written statements made in the course of griev-

ance meetings and in disciplinary notices. Hasten, 640

F.2d at 278-279.

There is a fundamental distinction between pre-

emption of state claims which interfere with the process

of resolution of grievances and arbitrations and pre-

emption of claims which may arise requiring interpre-

tation of the terms of collective bargaining agreements.

The Colorado Supreme Court has not recognized this dis-

tinction. What could interfere more.with the process of

coming to a full and fair resolution of matters brought

to the attention of employers and ultimately processed

through a grievance procedure than a state cause of ac-

tion which forces all but the unwary to hold back as

much “as possible, settle as little as possible, and pre-

serve ther rights for developing evidence for the poten-

tial state court defamation litigation?

This Court in Lingle quoted its statement in Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 219 (1985) that:

[t]he need to preserve the effectiveness of arbitra-

tion is one of the central reasons that underlay the

Court’s holding in Lucas Flour.

Lingle v. Norge, 486 U.S. at 411.

The effectiveness of arbitration will surely be diminished

if there cannot be a full and fair disclosure of even the

cause of the discipline which brings the employer, the

employee and the union together to resolve the matter.

Additionally, this case is analogous to United Steel-

workers v. Rawson, US. , 110 S.Ct. 1904

(1990). In that case, this Court determined that even

though Rawson’s tort claims could potentially be deter-

mined without interpretation of the provisions of the col-

lective bargaining agreement, the claims could not be

described as independent of the collective bargaining

agreement since the duty the union assumed arose out of

the agreement. Therefore, Rawson’s tort claims were

pre-empted under Section 301.

In this situation as well, the duties of the employer

and its supervisors concerning the grievance procedure

and issuing disciplinary notices arose out of the Collec-

tive Bargaining Agreement through its terms and past

practice. Therefore, any defamation claims relating to

those disciplinary notices or to statements made during

grievance meetings cannot be described as independent

of the Collective Bargaining Agreement, and they should

be pre-empted under Section 301 as well.

Finally, the case of Linn v. United Plant Guard

Workers, 383 U.S. 53 (1966), holding that the National

Labor Relations Act does not bar a civil action for libel

under state law where defamatory statements were pub-

lished during a union organizing campaign by the union

and its officers, is not controlling. In Linn, exclusive jur-

isdiction was unsuccessfully sought on the basis of state-

ments arguably made during the course of what the law

forbids or discourages, an unfair labor practice. While

the N.L.R.B. has jurisdiction over claims of unfair labor

practice, there is no federal policy reason to shield the

alleged libeler from an action seeking damages for a libel

made auring the course of an unfair labor practice.

Here, statements niade in grievance proceedings and dis-

ciplinary ietters rather than being discouraged by fed-

eral law, are encouraged by federal law; federal policy

being to encourage the peaceful disposition of grievance

issues. 29 U.S.C. $171(a). While the libelous state-

ments considered in Linn, and the context in which they

were uttered, constituted conduct which was merely a

“peripheral concern” of the N.L.R.B., the circumstances

giving rise to the action at bar involve interests which

necessarily require the uniform employment of federal

law in order to prevent the impairment of nativnal labor

policy. Brooks v. Solomon Co., 542 F.Supp. 1229, 1233-

1234 (N.D.Ala. 1982).

An additional rationale in this Court’s decision in

Linn was that the remedial provisions of labor law of-

fered no possibility of relief for the injury allegedly suf-

fered by the official involved. Linn, 383 U.S. at 63; see

also, Joftes v. Kaufman, 324 F.Supp. 660, 664 (D.D.C.

1971). Here, on the other hand, Respondent had avail-

able to him an opportunity through the grievance proce-

dure to secure personal relief and vindication. To allow

him to proceed instead by way of a burdensome, expen-

sive and vexatious libel suit against individuals who did

no more than fulfill their duty to inform him of the rea-

sons for his discipline would indeed be subversion of the

carefully constructed system of procedures and remedies

for employment disputes. Joftes v. Kaufman, 324

F.Supp. at 664.

Therefore, while under Lingle a claim will not be pre-

empted when it is not necessary to interpret the terms of

the labor agreement, it should be pre-empted when the

duty to act arises out of that collective bargaining agree-

ment as in Rawson. Also, defamation claims should be

pre-empted when they interfere with the disciplinary,

grievance or arbitration processes provided for in those

collective bargaining agreements. Such defamation claims

in those circumstances interfere with the national labor

policy to provide for a quick, efficient and orderly resolu-

tion of employee labor disputes and therefore should be

pre-empted under federal labor policy.

The decision of the Supreme Court of Colorado inter-

feres with that uniform federal labor policy, because

under it, a supervisor is not free to speak his or her mind

or tell the employee what charge he or she is facing with-

out fear of personal liability, while supervisors in other

states are free to continue the full free flow of\ mforma-

tion between employer, employee and union. Because this

is a recurring issue, the Court should review this matter

to establish a uniform federal policy for determining the

pre-emption of defamation claims arising out of the dis-

ciplinary, grievance and arbitration process.

II. The Decision Beiow Raises A Conflict Between The

Colorado Supreme Court, The Tenth And The Ninth

Circuit Courts Of Appeals, The Supreme Court Of

Alabama, The Supreme Court Of Michigan And The

Supreme Court Of Nebraska.

As stated in Textile Workers v. Lincoln Mills, 353 U.S.

at 451, the Labor Management Relations Act authorizes

federal courts to fashion a body of federal law for the

enforcement of collective bargaining agreements. The

underlying principle of this rule is that federal labor -pol-

icy emanating from the Labor Management Relations Act

should be applied in Colorado as it is in New York or

California. :

The case law cited in the decision of the Colorado Su-~

preme Court itself clearly demonstrates that whether a

statement made during the discipline or grievance process

is absolutely or only qualifiedly privileged is subject to the

whim of geography or jurisdiction. The most striking ex-

ample of this is the conflicting decisions within the 10th

Circuit, of which Colorado is a part. The Colorado Su-

preme Court determined that:

|Aj state law defamation action based upon state-

ments made in a grievance or disciplinary proceeding

may go forward when the state law recognizes a qual-

ified privilege for communications made in the course

of the disciplinary or grievance proceedings.

(Appendix A at p. 15a)

In Mendicki, 367 F.2d 66, the Tenth Circuit held that

statements made during the grievance process and griev-

ance proceedings were absolutely privileged. Jn Hasten,

640 F.2d 274, the Tenth Circuit concluded that disciplin-

ary notices were also absolutely privilged under federal

labor policy. In the instant case, the Colorado Supreme

Court determined that the Tenth Circuit’s decisions in

Hasten and Mendicki are in error on a question of federal

law. As such, should a defendant be lucky enough to have

diverse citizenship (28 U.S.C. § 1332) or be able to re-

move the case to federal court and pursuant to Cater-

pillar, Inc. v. Williams, 482 U.S. 386 (1987), avoid artful

pleading, the decision of the Tenth Circuit would be that

such disciplinary letters would be absolutely privileged.

However, a defendant not so fortunate as to be able to

gain the federal forum in Colorado would only have a

qualified privilege if the decision of the Colorado Supreme

Court is allowed to stand.

There is also a substantial split of authority through-

out the rest of the country. In the case of Hyles v.

Mensing, 849 F.2d 1213, 1217 (9th Cir. 1988), the Ninth

Cireuit held statements made during grievance proceed-

ines to be absolutely privileged. Similarly, in the case of

Shane v. Greyhound Lines, Ine., 868 F.2d 1057, 1063 (9th

Cir, 1989), the Ninth Circuit, while expressly reserving

ruling on whether to adopt the Hasien rationale, held that

when a collective bargaining agreement requires employ-

ers to notify employees and the union in writing of in-

tended discipline, any claim based upon the discharge

notification is therefore inextricably intertwined with the

collective bargaining agreement and is pre-empted.®

3In an Eighth Circuit case, Johnson v. Anheuser Busch, Inc., 876

F.2d 620 (8th Cir. 1989), a libel claim based upon accusations by

In Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085

(Ala. 1988), the Alabama Supreme Court determined

that testimony given during grievance proceedings was

absolutely privileged.t The Supreme Court of Michigan

has determined that accusations of dishonestly made at

the time of a suspension prior to discharge are absolutely

privileged. Fulghum v. United Parcel Service, Inc., 424

Mich. 89, 378 N.W.2d 472 (1985). In Kloch v. Ratcliffe,

221 Neb. 241, 375 N.W.2d 916 (1985), the Supreme Court

of Nebraska, following Mendicki, determined that state-

ments made in a Railway Labor Atct proceeding are abso-

lutely privileged.°

employees that an individual slashed tires was determined to be

pre-empted by Section 301, 29 U.S.C. § 185, inasmuch as the judicial

resolution of the libel allegation would necessarily involve the inter-

pretation of the collective bargaining agreement to determine

whether the plaintiff was wrongfully discharged.

* However, while the Supreme Court of Alabama recognized one

part of the absolute privilege doctrine when it held that statements

made during grievance proceedings are absolutely privileged, it also

has held that oral statements and telegrams notifying an individual

of suspension and then ultimate termination are subject to only a

qualified privileged. Reynolds Metals Co. v. Mays, 547 So.2d 518

(Ala. 1989).

In addition to these decisions of the federal Courts of Appeals

and Supreme Courts of several states, lower courts have also deter-

mined for various reasons that statements made during grievance

proceedings and disciplinary proceedings are shsluty privileged

See, Hull v. Central Transport, Inc., 628 F.Supp. 784 (N.D-tnd. 1986)

(statements made during grievance proceedings are absolutely privi-

leged) ; Seid v. Pacific Bell, Inc., 635 F.Supp. 906 (S.D.Cai. 1985)

(Seetion 301 pre-empts claim for defamation based on statements

made in an investigation pursuant to the collective bargaining

agreement); Green v. Hughes Aircraft Co., 630 F.Supp. 423 (S.D.

Cal. 1985) (statements uttered within the context of an initial

report and investigation are absolutely privileged); Brooks v.

Soloman Co., 542 F.Supp. 1229 (N.D.Ala. 1982) (statements made

during grievance proceedings were absolutely privileged): Honaker

v. Florida Power & Light, 95 LRRM 3265 (M.D.Fla. 1977) (state-

ments made in an informal meeting which preceded the filing of a

formal written grievance are absolutely privileged) ; Macy v. Trans

’

On the other side of the issue, in addition to the Colo-

rado Supreme Court, there are a minority of jurisdictions

which would hold that statements made during grievance

proceedings or in disciplinary letters have only a qualified

privilege.®

As is clear by the extreme divergence of authority cited

above, this case provides an excellent opportunity to settle

once and for all what the law should be concerning pre-

emption of defamation claims arising out of the disciplin-

ary and grievance process envisioned in collective bar-

gaining agreements. Due to the requirement to have a

uniform federal labor policy, the Court should take this

opportunity to review this case and resolve these conflicts.

World Airlines, Inc., 381 F.Supp. 142, 148 (D.Md. 1974) (state-

ments and written communications made to an employee concerning

discharge as a result of grievance proceedings are absolutely privi-

leged under the Railway Labor Act); Joftes-v. Kaufman, 324

F.Supp. 660 (D.D.C. 1971) (statements made providing reasons for

dismissal are absolutely privileged inasmuch as by veing a member

of the bargaining unit, one consents to such notices) ; Lowisville &

Nashville R.R. Co. v. Marshall, 586 S.W.2d 274 (Ky.Ct.App. 1979)

(letter concerning work and probationary period under the collec-

tive bargaining agreement is absolutely privileged); Rouwgeau v.

Firestone Tire & Rubber Co., 274 So.2d 454 (La.App. 1973) (state-

ments made during an investigation are absolutely privileged) ;

Turner v. Gateway Transportation Co., 569 S.W.2d 358 (Mo.App.

1978) (disciplinary letter sent to union council was consented to by

plaintiff and therefore absolutely privileged); Agriss v. Roadway

Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (Pa.Super.Ct. 1984)

(publication of a warning letter was absolutely privileged).

® See, Krasinski v. United Parcei Service, Inc., 124 Tll.2d 483, 530

N.E.2d 468 (1988) (statements made by supervisors informing

plaintiff of charges against him and statements in a notice of termi-

nation were determined to have only a qualified privilege) ; Ezekiel

v. Jones Motor Co., 374 Mass. 382, 372 N.E.2d 1281 (1978) (defama-

tory statements made during joint management and union board

meeting have only qualified privilege) ; Bird v. Meadow Gold Prod-

ucts Corp., 60 Mise.2d 212, 302 N.Y.S.2d 701 (Sup.Ct. 1969) (defam-

atory statements made during grievant’s adjustment conference have

only unqualified privilege, but held that privilege was not abused).

CONCLUSION

For the foregoing reasons, a Wr:“of Certiorari should

issue to review the judgment and opinion of the Supreme

Court of the State of Colorado.

* Counsel of Record

Respectfully submitted,

DAVID W. KERBER *

KEVIN W. HECHT

KELLY, STANSFIELD & O’DONNELI.

550 15th Street, Suite 900

Denver, Colorado 80202

(303) 825-3534

JAMES R. MCCOTTER

Genera! Counsel

PUBLIC SERVICE COMPANY

OF COLORADO

550 15th Street, Suite 890

Denver, Colorado 80202

(303) 571-7161

Attorneys for Public Service

Company of Colorado and

R. M. Richards

APPENDICES

APPENDIX A

October 22, 1990

SUPREME COURT, STATE OF COLORADO

No. 89SC107

WILLARD A. THOMPSON,

Py titione i.

PuBLic SERVICE COMPANY OF COLORADO, a corporation:

and Rt. M. RICHARDS a ka MARK RICHARDs.

Re SPponde its.

(ertiorari to the Colorado Court of Appeals

KN BANC

JUDGMENT REVERSED AND CASE REMANDED

WITH DIRECTIONS

JOSEPH P. GENCHI

kstes Park, Colorado

Attorney for Petitioner

DAVID W. KERBER

KEVIN W. HECHT

KELLY, STANSFIELD & O’DONNELL

Denver, Colorado

Attorneys for Respondents

JUSTICE MULLARKEY delievered the Opinion of the Court

JUSTICE VOLLACK does no?! participate.

We granted certiorari to review the decision of the

court of appeals in Thompson v. Public Service Co., 773

P.2d 1103: (Colo. Ct. App. 1988), affirming a summary

judgment against the plaintiff in a defamation action

against his employer, We reject the conclusion of the

court of appeals that, under federal labor law, statements

made by an employer in a notice of discipline may not be

the basis of a defamation action, and we reverse the deci-

sion of the court of appeals because we conclude that un-

der state law the trial court improperly granted sum-

mary judgment on the plaintiff’s claims,

The plaintiff, Willard A. Thompson, was formerly an

employee of the defendant, Publie Service Company of

Colorado (Public Service) .' He is now retired. During

the periods relevant to this dispute, Thompson’s super-

visor was defendant R. M. Richards; Public Service work-

crs Were represented by Local Union No. 111 of the Inter-

national Brotherhood of Electrical Workers (IBEW),

which had entered into a collective bargaining agreement

with Publie Service, Thompson in his pleadings before

the district court raised two separate claims of defamation.

The first claim is related to the events of November 17,

1983. On that day, Thompson and two other employees

were sent to the state steam plant in Denver to perform

maintenance work on the boilers in the basement, At

some point, Thompson’s companions left the building to

retrieve supplies. Thompson thereafter left his work area

and went upstairs to an area frequented by state em-

ployees. He saw a bulletin board, on which was posted a

notice of a Christmas party for state employees, Thomp-

' Because this action was disposed of on summary judgment,

we must reconstruct the factual background from the parties’

pleadings, affidavits and depositions. To the extent there is a factual

dispute, we defer to the allegations made by the defendant in the

trial court.

son then attempted to learn who was in charge of the

party so that could offer to play the piano or organ at

the party. Thompson indicated in his affidavit before the

trial court that, on prior occasions, persons had engaged

him to provide musical services at various private func-

tions. According to Thompson, the persons working in

the area were unresponsive and he subsequently departed

the area without incident.

Shortly thereafter, according to Richards, Vie Cook, a

supervisor of state employees at the steam plant, tele-

phoned Richards and told him that Thompson’s contacts

with state employees constituted a “nuisance.” Following

Cook’s complaint. Richards removed Thompson from the

state plant and summoned him to a meeting with Rich-

ards and the union steward, who was present because of

the potential for the imposition of discipline on Thomp-

son. According to Richards, his subsequent investigation

revealed that Thompson, on November 17, 1983, was loit-

ering about the administrative offices at the state steam

plant, copying the telephone numbers and the names of

the female employees. Further, Thompson allegedly asked

the employees “personal questions” concerning their

Christmas party and their’ phone numbers. Richards

stated in his deposition that he believed “this unwanted

attention by plaintiff toward the female employees con-

stituted sexual harassment.”

On December 6, 1983, Richards issued a letter of dis-

ciplinary suspension, informing Thompson that he was

suspended for five days without pay. The disciplinary ac-

tion, according to the letter, was “based on |Thompson’s |

poor work performance, creating a nuisance for customer

employees and sexual harassment and or unwanted con-

tact of customer employees.” Copies of the suspension

letter were given to Ray L. Dudley, Thompson’s second-

level supervisor, Ken L. Barnett, a Public Service produc-

tion manager and third-level supervisor, and Public Ser-

vice’s Labor Relations Department. A copy of the letter

—<—~

was also given to the IBEW union steward and a copy

was placed in Thompson’s personnel file. Pursuant to the

collective bargaining agreement between Publie Service

and the IBEW, Thompson challenged the suspension

through a “Step 1 Grievance.” At the initial grievance

review, Thompson was denied relief. However, upon fur-

ther review |Step 2 review] on January. 19, 1984, the

five-day suspension was reduced to two days and _ the

word “sexual” was removed from the discipline letter so

that it merely stated “harassment.” Thompson did not

contest further the disciplinary action.

Thompson’s second claim for defamation stemmed

from a June 29, 1984 reprimand for “falsification of time

eard.”” That charge was based on Thompson’s completion

of a time card for June 5, 1984, as a day on which he

took “sick leave.” According to Richards, because Thomp-

son failed to obtain a doctor’s excuse for the sick day,

and because this requirement had previously been made

known to Thompson, the filing of the time card “consti- .

tuted a falsification of the time card.” Copies of this

written reprimand were once again sent to the two

higher level Public Service supervisors, as well as to the

IBEW and the Public Service Labor Relations Depart-

ment. A copy of the second reprimand was also placed

in Thompson’s personnel file. After a meeting between

Thompson and his third-level supervisor Barnett, the

reprimand was revised so as to delete the reference to

“falsification,” stating instead that Thompson’s incorrect

entry on his time card indicated that he “ignor!ed] the

required policy procedures” and this conduct constituted

“malingering.”” Thompson did not challenge this disci-

plinary action.

On December 3, 1984, Thompson filed this action in

Denver District Court against Publie Service and Rich-

ards, alleging defamation on the basis of the two letters

of reprimand. On Public Service’s motion for summary

judgment, the district court ruled that Publie Service's

statements in the discipline notices were protected by a

qualified privilege under state law, and that because no

genuine issue of fact existed concerning the question of

malice, summary judgment was appropriate. The court

of appeals affirmed the judgment of the trial court on a

different legal theory. It held that under £301 of the

Labor Management Relations Act of 1947 (the LMRA\),

29 U.S.C. $185 (1982), statements made in written no-

tices of discipline leading up to a grievance procedure as

provided for in a collective bargaining agreement are

protected by an “absolute privilege” precluding the bring-

ing of a state law defamation claim based on such state-

ments. Thompson v. Public Serv. Co., 773 P.2d at 1108.

We granted certiorari to consider whether federal labor

law, under the circumstances of. this case, requires the

recognition of an unqualified rather than a qualified

privilege, as previously recognized by this court under

state law with respect to statements similar to those

made here.

II.

‘ A.

Before addressing the scope of the privilege with re-

spect to the statements contained in the discipline no-

tices in this case, we note that this court has already de-

cided this issue under Colorado law, most recently in

Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.

1988). In Churchey, we applied well-established Golorado

case law in finding that the statements made by the em-

ployer Coors to the employee Churchey explaining that

she had been terminated because of “dishonesty” were

protected by a qualified privilege. In the face of a de-

fendant’s qualified privilege, we held that a plaintiff could

recover on a defamation claim only by showing that the

defendant “publishe|d] the material with malice, that is.

knowing the matter to be false, or actfed] in reckless

disregard as to its veracity.” Churchey, 759 P.2d at

1346 (quoting Dominguez v. Babcock, 727 P.2d 362. 366.

(Colo. 1986)). See also Abrahamsen v. Mountain States

Tel. & Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972)

(qualified privilege applies aS to inter-office memo-

randai: Denver Pub. Warehouse Co. v. Holloway, /34

Colo, 432, 83 P. 131 (1905) (qualified privilege protects

the right of corporate officers to communicate with one

another about their employees’ conduct)’. €hurchey and

the earlier cases clearly establish that, under Colorado

law, statements such as those made by the defendants

here are protected by a qualified privilege, not by an un-

qualified privilege.

Thus, unless the defendants can show that federal law

requires a different standard ‘under the facts of this case,

we must conclude that the statements were protected by

a qualified privilege. In urging-that we recognize an

unqualified privilege under the facts of this case, de-

fendants argue that to hold otherwise would “interfere

with the discipline, grievance, and arbitration process

contrary to federal labor policy arising under section 301

of the LMRA.” However, we do not agree that § 501

supports the recognition of an unqualified privilege under

federal law.

The Supreme Court on a number of occasions has

stated the test for determining whether § 301 ‘preempts”

state law tort claims. Most relevant to the circumstances

presented by this case is Lingle v. Norge Division of

Magic Chef, Inc., 486 U.S. 399 (1988). The emplayee in

that case pursued a remedy provided by the grievance

procedure established under the collective bargaining

agreement between her union and the company. Lingle,

486 U.S. at 401. Simultaneously with the grievance pro-

cedure, however, the employee filed a wrongful discharge

action in state court alleging that the defendant had

fired her, contrary to the public policy of the state, be-

cause she filed a worker’s compensation claim. /d. at 402.

Both the federal district court and the Seventh Circuit

Court of Appeals held that the state law claim was “in-

extricably intertwined” with the collective bargaining

agreement and thus the state law claim was preempted.

Id.

The Supreme Court disagreed, reaffirming its test for

determining whether § 301 preempts a stat. tort law

claim:

[I]f the resolution of the state-law claim depends

upon the meaning of the collective-bargaining agree-

ment, the application of state law (which might lead

to inconsistent results since there could be as many

state law principles as there are States) is preempted

and federal labor-law principles-—necessarily uni-

form throughout the nation—must be employed - to

resolve the dispute.” :

Id. at 405-06. The court applied this test to the facts

presented by Lingle and found that the state law claim

for wrongful discharge was not preempted under § 301,

even though the collective bargaining agreement in

Lingle established a procedure for resolving claims that

an employee’s termination was not for just cause. 7d.

at 407. The Court held that the resolution of the Illinois

wrongful discharge claim did not require the trial court

to interpret any term of the collective bargaining agree-

ment. /d. Thus, the state law remedy was “independent”

of the collective bargaining agreement. The Supreme

Court rejected the court of appeals’ reasoning that the

state law claim must be barred because “a state court

would be deciding precisely the same issue as would an

arbitrator: whether there was ‘just cause’ to discharge

the worker.” Jd. at 408 (quoting decision below, 823 F.2d

1031, 1046 (7th Cir, 1987) ) (emphasis supplied by the

Supreme Court). In summary the Court concluded:

|E|ven if the dispute resolution pursuant to a collec-

tive-bargaining agreement, on the one hand, and

state law, on the other, would require addressing

precisely the same set of facts, as long as the state-

law claim can be resolved without interpreting the

agreement itself, the claim is “independent” of the

agreement for $ 30T preemption purposes.

Td. at 409-10,

In support of their position that §301 preempts

Thompson's libel action here, the defendants points to a

number of state and fedexal decisions, including General

Motors Corp. v. Mendicki, 367 F.2d 66 (10th Cir. 1966).

Most of these cases, including Mendicki, predate the 1988

Lingle decision and their continuing validity is question-

able. In Mendicki, the court of appeals reviewed a judg-

ment in favor of the plaintiff on his claim that a company

representative had slandered him at a grievance proceed-

ing by stating that the company had known for years

that the plaintiff had been taking property from the

plant. Mendicki, 367 F.2d at 70. The statement was

made at a hearing which was part of the process for

appealing a grievance under a_ collective bargaining

agreement between the employer and the union represent-

ing the employees. Jd. at 68. In reversing the judgment

in favor of the plaintiff, the court concluded that state-

ments made at a grievance conference are unqualifiedly

privileged. The court stated:

If the representatives of either employer or employee

were subject. to an action for damages because of

statements made of what they claimed to be the

pertinent facts respecting a controversy under con-

sideration and of their position respecting such mat-

ter and the reasons therefor, at a conference or col-

lective bargaining session being held to adjust such

controversy, the likelihood of the attainment of peace-

ful adjustments on disposition of the issues involved

between them through the conference or bargaining

_ processes would be greatly decreased.

Id. at 71. The Mendicki court did not specifically point

to § 301 as providing the basis for its holding that the

employer’s statements in that case were protected by an

unqualified privilege. In addition, it is not clear whether

the holding of “unqualified privilege” in Mendicki was

based on state or federal law. By using the term “privi-

lege” rather than stating that state law and jurisdiction

were preempted, the court in Mendicki may have indi-

cated it was applying state defamation law, not ruling

that state defamation remedies were preempted. See,

e.g., Comment, The Availability of Defamation Remedies

for Statements Made During the Course of Labor Griev-

ance Arbitration Proceedings, 15 U. Kan. L. Rev. 553

(1967) (making a similar argument). Nevertheless,

some subsequent cases have interpreted the Mendicki

opinion as establishing an “unqualified privilege” under

federal labor law.

In Hasten v, Phillips Petroleum Co., 640 F.2d 274

(10th Cir, 1981), the court of appeals reaffirmed the va-

lidity of Mendicki and extended it beyond the context of

the grievance proceeding to cover a letter sent by the

employer to the employee informing the employee that he

Was being terminated for “dishonesty.” Hasten, 640 F.2d

at 275. The Hasten court was clear in stating its convic-

tion that federal labor law compelled the recognition of

an unqualified privilege encompassing the statements at

issue:

We are not persuaded by the plaintiff's arguments

that the instant case should be distinguished from

Mendicki or that Supreme Court decisions now dic-

tate a contrary rule. Considering the factors iden-

tified by the Supreme Court, we remain persuaded

that federal labor law and policy require the abso-

lute privilege rule as to communications made within

the context of proceedings provided for by the collec-

tive bargaining agreement and its provisions for a

grievance machinery.

ee!

10a

Id. at 278. As with the Mendicki decision, the court in

Hasten did not cite § 301 as the source for the unquali-

fied privilege.

The principle of “unqualified privilege” recognized in

Mendicki and Hasten has been followed in some federal

court decisions, but the courts are often imprecise in stat-

ing the basis for their holdings. See Shane v. Greyhound

Lines, Inc., 868 F.2d 1057 (9th Cir. 1989) (unqualified

privilege protects statements made in employer's notice

of intent to discipline) ; Hyles v. Mensing, 849 F.2d 1213

‘9th Cir. 1988) (federal labor policy and federal labor

law require recognition of privilege so as to bar state

defamation claims based on statements made in grievance

proceedings! ; Hull v. Central Transp., Inc., 628 F. Supp.

784 «(N.D. Ind. 1986) (statements made in grievance

proceedings are absolutely privileged, apparently under

$301 of LMRA); Green v. Hughes Atreraft Co., 630 F.

Supp. 423 «(S.D. Cal. 1985) (statements in employer's

initial discipline report stating that plaintiff employee

had stolen a sandwich protected by absolute privilege) ;

Brooks v. Solomon Co., 542 F. Supp. 1229 (N.D. Alabama

1982) ‘absolute privilege for statements made at griev-

ance hearing). Accord, Surrency v. Harbison, 489 So, 2d

1097 (Ala. 1986) ; Louisville & Nashville R.R. Co. v. Mar-

shall, 586 S.W.2d 274 (Ky. Ct. App. 1979). Other fed-

eral cases specifically have held that $ 301 preempts state

law defamation claims. See Willis v. Reynolds Metals

Co., 840 F.2d 254 (4th Cir. 1988) (employee’s state law

claim that personnel manager slandered her during in-

formal discipline meeting preempted by § 301); Serd rv.

Pacific Bell, Inc., 635 F. Supp. 906 (S.D. Cal. 1985)

‘301 preempts state claim for defamation based on

statements made in investigation subject to collective bar-

gaining agreement).

Some state courts which have recognized an absolute

privilege either have done so under state law or have been

unclear whether their recognition of the privilege was

lla

under state or federal law. See Petyan v. Ellis, 200 Conn.

243, 510 A.2d 1337 (1986); Rougeau v. Firestone Tire

& Rubber Co., 274 So. 2d 454 (La. Ct. App. 1973);

Fulghum v, United Parcel Serv., 424 Mich. 89, 378 N.W.2d

472 (1985); Turner v. Gateway Transp. Co., 569 S.W.2d

398 (Mo. Ct. App. 1978); Kloch v. Ratcliffe, 221 Neb.

241, 375 N.W.2d 916 (1985); Agriss v. Broadway Ev-

press, Inc., 334 Pa. Super. 295, 483 A.2d 456 11984).

See also Annotation, Libel and Slander: Privileged Na-

ture of Communications Made in Course of Grievance or

Arbitration Procedure Provided for by Collective Bar-

gaining Agreement, 60 A.L.R.3d 1041 (1974).

Other courts, however, have not agreed that federal

labor law requires an absolute privilege.to be granted to

statements made in the course of a grievance proceeding

or in related written documents and oral discussions.

State courts in New York, Massachusetts,’ Illinois and

Ohio have rejected the holdings of Mendicki and Hasten.

In Bird v. Meadow Gold Products Corp., 60 Mise, 2d 212,

, 302 N.Y.S.2d 701, 704-705 (N.Y. Sup. Ct. 1969),

the court rejected the reasoning of Mendicki and applied

principles of qualified immunity under New York law

even though the plaintiff employee claimed that his em-

ployer had slandered him in the course of a conference

held pursuant to a collective bargaining agreement be-

tween his union and his employer. The Supreme Judicial

Court of Massachusetts in Ezekiel v. Jones Motor Co..

374 Mass. 382, 372 N.E.2d 1281 (1978), agreed with the

New York court’s opinion in Bird and held that a quali-

fied privilege applied to statements mate in the course

of a grievance procedure covered by a collective bargain-

ing agreement. The court stated:

We prefer the approach taken in Bird v. Meadow

Gold Prod, Corp., supra, where the New York court

rejected the Mendichki rationale and held that alleg-

edly defamatory statements were qualifiedly privi-

leged when made at a conference pursuant to a col- .

12a

lective bargaining agreement. The court found no

congressional legislation specifically governing defam-

atory actions predicated on statements made during

a labor grievance proceeding nor prohibiting a State

court from regulating conduct in a manner con-

sistent with national labor policies.

Ezekiel, 374 Mass. at , ov2 N.E.2d at 1285. The

court went on to hold that the policy concerns raised by

the Tenth Circuit Court in Mendicki were sufficiently safe-

guarded by applying principles of qualified privilege stat-

ing:

While the defendants do not clearly argue that this

slander action in the State court is preempted by

Federal labor legislation, they do urge that they

should be immune from liability to avoid frustrating

the policies expressed in this Federal labor legisla-

tion. Protecting its residents from slander has long

been a concern of the Commonwealth. A grant of the

conditional privilege provides a sufficient safeguard

against the dampening of free discussion of the perti-

nent facts important to the peaceful adjustment of

grievances.

Ezekiel, 374 Mass. at , 972 N.E.2d at 1286. Accord

Fisher v. Illinois Office Supply Co., 130 Ill. App. 3d 996,

474 N.E.2d 1263 (1984); see also Bailey v. Sams, 24

Ohio App. 3d 137, 493 N.E.2d 966 (1985).

In our view, § 301 does not preempt Thompson’s state

law defamation claims. Here, as in Lingle, the resolution

of the state law claims does not require the interpreta-

tion of the collective bargaining agreement. Each ele-

ment of Thompson’s case may be resolved without refer-

ence to the collective bargaining agreement. Moreover,

this case presents a stronger case for permitting the state

law action than Lingle. In Lingle the grievance proceed-

ing and the wrongful discharge action decided, arguably,

precisely the same issue: whether termination of the em-

l3a

ployee was proper. In contrast, a grievance proceeding

like the one involved in this case does not necessarily de-

cide the truth of the matters asserted in a letter of dis-

cipline, but in many instances may focus narrowly on

the appropriateness of the particular discipline imposed.

The determinations in the grievance proceedings here,

that the notices should be modified to change “sexual har-

assment” to “harassment” and to delete the reference to

“falsification” of a time card, did not necessarily resolve

the merits of the accuracy of these accusations. Rather,

the changes may reflect a compromise entered into simply

to resolve a dispute between an employee represented by

a union and management. In any event, there was not

a specific finding made as to the truth or falsity of the

accusations made in the notices of discipline. To hold

that a grievance is the sole remedy of an employee al-

legedly libeled by an employer would unjustly limit the

employee’s ability to remedy damage to his reputation.

The collective bargaining agreement simply provides no

mechanism for vindicating an employee’s interest in pro-

tecting his good name from unjustified, knowingly false

accusations of serious misconduct.

We also reject the contention that an unqualified privi-

lege is required under the rubrie of “national labor pol-

icy.” No United States Supreme Court decision has so

held and, to the contrary, existing Supreme Court prece-

dent suggests that a qualified privilege suffices.

In support of its holding recognizing the unqualified

privilege, the Tenth Circuit Court of Appeals in Hasten

explained its earlier Mendicki decision by stating that the

recognition of the unqualified privilege was required be-

cause “the libel action would clearly call for adjudication

of the merits of the allegations of dishonesty which were

the core issue in the grievance proceeding.” Hasten, 640

l4a

F'.2d at 279. However, as noted above, this reasoning is

undercut by the Supreme Court’s decision in Lingle per-

mitting a wrongful discharge claim to go forward in state

court even though, under the terms of a collective bar-

gaining agreement, a grievance procedure was established

for determining whether an employee had been discharged

for “just cause.”

q@Moreover, the “qualified privilege’ standard articu-

lated by this court in Dominguez and Churchey is vir-

tually indistinguishable from the standard approved by

the Supreme Court in Old Dominion Branch No. 496,

National Association of Letter Carriers v. Austin, 418

U.S. 264 (1974), and Linn v. United Plant Guard Work-

ers Local 114, 383 U.S. 53 (1966). In Linn, the Court

held that federal labor law permits the maintenance of a

state law libel action by an official of an employer against

a union for statements made during an organizing cam-

paign. Linn, 383 U.S. at 55. The Court recognized that

the state had an “overriding state interest’ in protecting

its residents from malicious libels. Jd. at 61. The Court

acknowledged that, to some extent, permitting the state

law actions would conflict with the policies of the Na-

tional Labor Relations Act, 29 U.S.C. § 141 ef seq. (1964

ed.), of encouraging free debate. Jd. at 64. However,

the Court held that this risk could be minimized by allow-

ing recovery on a state libel law action only if the plain-

tiff proves that the defendant acted with “malice” as

defined by the Court in New York Times Co. v. Sullivan,

376 U.S. 254 (1964). Id. at 65. In Letter Carriers, the

Court reaffirmed its holding that a plaintiff could recover

in a state libel law action in the labor dispute context

only by proving that a defamatory publication was made

with “knowledge of falsity or reckless disregard of the

truth.” Letter Carriers, 418 U.S. at 281.

The federal interest in free debate in the labor dispute

context would seem to be quite similar to the federal in-

terest in encouraging frank discussion in the context of

l5a

a grievance proceeding or a disciplinary action. The

federal interest in maintaining a national labor policy is

adequately safeguarded by requiring that the plaintiff, in

order to recover in a defamation action based upon state-

ments made in a grievance proceeding, prove that the

dafamatory statements were made with knowledge of

their falsity or with reckless disregard for whether or not

they were true or false. Thus, we hold that a state law

defamation action based upon statements made in a griev-

ance or disciplinary proceeding may go forward when the

State law recognizes a qualified privilege for communica-

tions made in the course of the disciplinary or grievance

proceedings.

ITT.

Finally, we must consider whether summary judgment

was proper here on Thompson’s state law claim. In mak-

ing this determination, we are guided by this court’s de-

cision in Churchey, 759 P.2d 1336. In Churchey, as here,

the district court granted summary judgment against an

employee on her defamation claim against her employer.

Churchey, 759 P.2d at 1338. In Churchey, the plaintiff

claimed that her employer libeled her by stating that the

reason for her discharge was “dishonesty.” Jd. at 1341.

In addressing the question of whether summary judgment

was proper in that case, we engaged in a useful review

of the relevant principles governing summary judgment.

We stated:

Summary judgment is a drastic remedy and is never

warranted except on a clear showing that there ex-

ists no genuine issue as to any material fact and

that the moving party is entitled to judgment as a

matter of law. The moving party has the burden of

estabiishing the lack of a triable factual issue, and

all doubts as to the existence of such an issue must

be resolved against the moving party. The party

against whom summary judgment is sought is en-

titled to the benefit of all favorable inferences that

hl,

l6a

may be drawn from the facts. The same standards

should be applied by an appellate court reviewing a

summary judgment order.

Id. at 1339-40 (citations omitted). Thus, as in Churchey,

we must determine whether the defendants met their

burden of proving that there are no relevant issues of

material fact and that Public Service and Richardscare

entitled to judgment as a matter of law on Thompson’s

defamation claims.

To prove a claim for defamation against an employer

a plaintiff must show that the employer. published a false

statement of defamatory fact. Jd. at 1341. If the com-

munication is protected by a “qualified privilege,” then

the plaintiff may recover only if he proves that the de-

fendant “publishe[d] the material with malice, that is,

knowing the matter to be false, or act|ed] with reckless

disregard as to its veracity.” Id. at 1546 (citations

omitted). According to Restatement (Second) of Torts,

“TyrJeckless disregard exists when there is a high degree

of awareness of probable falsity or serious doubt as to

the truth of the statement.” Restatement (Second) of

Torts § 600 comment b (1977). Here, the trial court

properly ruled that Richards’ statements were protected

by a qualified privilege.

In support of their motion for summary judgment, the

defendants filed with the trial court a number of affi-

davitg as well as excerpts from depositions. Defendant

Richards’ affidavit described his view of the circumstances

surrounding the alleged incident of sexual harassment

stating:

I suspended Plaintiff for his conduct on November, 17,

1983 because, as I was told, he had been loitering

around the State Administrative Offices, he had been

copying the telephone numbers and names of the

State female employees from the desk name plates,

and he had been interrupting the female employees

17a

with personal questions concerning their Christmas

parties and asking for their telephone numbers. I

believe this unwanted attention by the Plaintiff to-

ward the female employees constituted sexual harass-

ment.

Richards also stated his basis for charging the defend-

ant with falsification of a time card, stating:

I reprimanded Plaintiff for his conduct in June 1984

when he asserted on his time card that he was on

paid sick leave for June 5, 1984 when in fact he had

not procured the required doctor’s authorization to

be aythorized sick leave.

Finally, Richards stated:

At the time, I disciplined Plaintiff for sexual harass-

ment and falsification of his time card I believed that

he had committed those acts and still so believe. I

held no ill will toward Plaintiff before, during or

as a result of the discipline I imposed upon him.

Thompson filed an affidavit in which he denied both

the allegations of sexual harassment and falsification of

the time card and presented a detailed version of the

facts that was substantially different from Richards’

version of the two incidents. Thompson also alleged in

his affidavit that the charges “were part of an ongoing

series of incidents and conduct on the part of Richards

which clearly showed to me that he had malicious mo-

tives with regard to me.”

In addition, Vic Cook, the supervisor who phoned Rich-

ards to complain about Thompson’s conduct toward the

state employees, never complained that’ Thompson’s con-

duct constituted sexual harassment. Cook’s letter to Rich-

ards described Thompson as a “nuisance.” Richards tes-

iified in his deposition that Cook implied that Thompson

had sexually harassed female employees, but Richards

acknowledged in his deposition that he was unable to

18a

substantiate his charge of sexual harassment by reports

from the alleged victims, although he made numerous

requests for such substantiating reports. Finally, with

respect to the charge of falsifying his time card, Thomp-

son alleged in his affidavit that Richards’ superior, Kenny

Barnett, labelled the charge “ridiculous” and marked the

reprimand “void.”

Giving Thompson the benefit of all favorable infer-

ences that may be drawn from these facts, as we are

compelled to do, we conclude that Thompson has demon-

strated that a genuine issue of fact exists with respect

to whether Richards knew of the falsity of his state-

ments or acted with reckless disregard as to the falsity

of his statements contained in the letters in question.

Accordingly, we reject the court of appeals’ analysis

and we reverse its judgment upholding the trial court’s

order granting summary judgment for the defendants.

The court of appeals is directed to remand the case for

trial on Thompson’s defamation claims.

JUSTICE VOLLACK does not participate.

19a

APPENDIX B

COLORADO COURT OF APPEALS

No. 87CA0777

WILLARD A. THOMPSON,

| Plaintiff-A ppellant,

¥.

PUBLIC SERVICE COMPANY OF COLORADO, a corporation;

and R. M. RICHARDS, a/k/a MARK RICHARDS, ~.

Defendants-A ppellees.

Appeal from the District Court of the

City and County of Denver

No. 84CV12172

HONORABLE DANIEL B. SPArR, Judge

[Opinion filed and judgment entered on the

15th day of December, 1988!

JUDGMENT AFFIRMED

DIVISION III

Opinion by JUDGE CRISWELL

VAN CISE and STERNBERG, JJ., concur

JOSEPH P. GENCHI, P.C.

JOSEPH P. GENCHI

Estes Park, Colorado

Attorneys for Plaintiff-Appellant

KELLY, STANSFIELD & O’DONNELL

KEVIN W. HECHT

DAVID W. KERBER

Denver, Colorado

Attorneys for Defendants-Appellees

20a

Plaintiff, Willard A. Thompson, appeals the summary

judgment that dismissed his libel action against defend-

ants, Public Service Company (PSC) and R. M. Rich-

ards, a PSC supervisor. The trial court entered the

judgment because it concluded that defendants possessed

a qualified privilege to publish the statements involved

and that the undisputed evidence demonstrated that that

privilege had not been abused. In the circumstances

portrayed by this record, we conclude that the federal

labor policy, as reflected in the applicable federal stat-

utes, requires the recognition of an absolute privilege for

defendants’ statements. Thus, we affirm.

Plaintiff was employed by PSC in a collective bargain-

ing unit of employees whose exclusive bargaining .rep-

resentative for purposes of the National Labor Relations

Act, 29 U.S.C. § 151, et seq. (1982), was Local Union

No. 111 of the International Brotherhood of Electrical

Workers (IBEW). PSC and IBEW were parties to a col-

lective bargaining agreement that governed the wages,

hours of work, and other terms and conditions of employ-

ment for the employees within the bargaining unit, in-

cluding plaintiff.

This agreement recognized PSC’s right “to suspend, to

discharge, or to discipline {employees} for proper cause,”

subject, however, to a disciplined employee’s right to ad-

just any grievance relating to any discipline in accord-

ance with the procedures described in the agreement.

Under the agreement, the initial means for resolution

of a grievance was to be by informal discussions between

an employee and his immediate supervisor. If the dis-

pute was not resolved in that manner, then a formal

four-step procedure was followed. That procedure began

with discussions between IBEW representatives and lower

management representatives, progressed through discus-

sions between higher level representatives, and culmi-

nated, if necessary, in binding arbitration.

2la

In November 1983, plaintiff was sent ty do maintenance

work upon boilers that were located in the basement of

a building. While waiting for other PSC employees to

arrive at the building, plaintiff left the basement area,

went to another floor, and attempted to speak with sev-

eral female clerical employees who worked for another

employer. This activity resulted in a supervisor of the

clerical employees telephoning plaintiff’s supervisor and

complaining about plaintiff’s activities. Plaintiff returned

to PSC’s premises and attended a meeting with his su-

pervisor and an IBEW representative to discuss what

had occurred. q

After this conference, plaintiff was given a written

notice that he was to be suspended from his job without

pay for five days. This notice reviewed previous dis-

ciplinary actions taken against plaintiff for other inci-

dents and asserted that the present suspension was being

imposed because of his “creating a nuisance for customer

employees and sexual harassment and/or unwanted con-

tact of customer employees.” (emphasis supplied) A copy

of this notice was provided to IBEW, to plaintiff’s second

and third level supervisors, and to PSC’s labor relations

department, and a copy was placed in plaintiffs’ per-

sonnel file. There was no competent evidence submitted

to the trial court that PSC furnished any other person

with a copy of this notice.

Plaintiff invoked the contract's formal grievance pro-

cedures to protest this suspension and, at the second step,

the matter was considered and resolved by a joint union-

management committee, consisting of three PSC repre-

sentatives and three IBEW representatives. Both plain-

tiff and his immediate supervisor were present as wit-

nesses and a member of PSC’s labor relations staff was

also present as an observer. After considering the matter,

it was agreed that plaintiff’s grievance would be finally

settled by reducing his suspension ‘from 5 days to 2 days

and by removing the word “sexual” from the written

22a

notice previously issued to him. In return, plaintiff agreed

that he would receive counseling through one of PSC’s

internal employee assistance programs.

Approximately eight months later, plaintiff was absent

from work because of an illness. PSC’s working rules

required such an absent employee to present a physician’s

statement attesting to his illness upon his return to work.

Plaintiff failed to provide such a statement, and he

marked his time card for the period of his absence as

“sick leave,” which would have resulted in his being paid

during his absence.

As a result of this incident, a “written reprimand”

was issued to plaintiff in a form similar to his previous

notice of suspension. This document noted that plaintiff

had failed to comply with PSC’s requirement for a doc-

tor’s statement on previous occasions and that he had

veen told that a future infraction of that rule would

result in his failure to be paid for his absence. It con-

cluded that, under these circumstances, plaintiff's mark-

ing of his time card in the manner in which he did con-

stituted a “falsification” of that time card. A copy of

this written reprimand was provided to the same parties

as were provided copies of the previous notice of suspen-

sion. Again, there was no evidence presented that anyone

else received a copy of this reprimand.

It is not clear whether plaintiff invoked the contract’s

formal grievance procedures to protest this written repri-

mand or whether he undertook to adjust his objection to

it in an informal matter. In any event, he contacted his

third level supervisor, who would have been involved in

any formal grievance proceeding, and that supervisor

directed that an amended letter of reprimand be issued to

plaintiff to remove any reference to a falsification of his

time card.

Plaintiff's complaint in libel contained two claims,

based upon these two written notices. The trial court

23a

concluded, however, that the two statements upon which

plaintiff relied to establish actionable defamation were

each subject to the qualified privilege that attaches to

job-related statements made by an employer about an

employee. See Dominguez v. Babcock, 727 P.2d 362 (Colo.

1986); Price v. Conoco, Inc., 748 P.2d 349 (Colo. App.

1987). It also concluded that the undisputed facts demon-

strated that the statements were not made with a knowl-

edge of their falsity or with a reckless disregard thereof,

see Dominguez v. Babcock, supra, and that they were not

published to persons outside the interested group. See

Patane v. Broadmoor Hotel, Inc., 708 P.2d 473 (Colo.

App. 1985).

Plaintiff argues that his evidence showed that his super-

visor made each statement without conducting a suffi-

cient investigation, so that a reasonable inference could

be drawn that that supervisor had acted with a reckless

disregard of the truth of those statements, thereby render-

ing summary judgment inappropirmate. However, be-

cause we conclude that the statements were subject to

an absolute privilege and-that the evidence demonstrates

that that privilege was not abused, we affirm the trial

court’s judgment without passing upon the question of

the existence of malice under Dominguez v. Babcock,

supra.

When Congress adopted § 301 of the Labor Manage-

ment Relations Act of 1947, 29 U.S.C. § 185 (1982), it

granted jurisdiction to the federal courts to adjudicate

claimed violations of collective bargaining agreements.

While perhaps not evident on its face, § 301 contains a

mandate to the federal courts to fashion a body of fed-

eral law applicable to union contracts. Textile Workers

'. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d

972 (1957). Moreover, the state courts must apply the

tenets of the substantive federal law developed under

$ 301 to the exclusion of any inconsistent state law that

might otherwise be applicable. Teamsters Local No. 174

24a :

v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d

593 (1962); Digby v. Denver, 156 Colo. 260, 398 P.2d

30 (1965). .

One of the basic principles of the federal law relating

to union contracts is that, where such a contract contains

a provision that calls for the reference of disputes arising

under its terms to binding arbitration, courts lack juris-

diction to intervene in such disputes. Republic Steel Corp.

». Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580

(1965); United Steelworkers v. American Manufactur-

ing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1463

(1960). Thus, where the parties have committed dis-

putes relating to the interpretation of a bargaining agree-

ment to the jurisdiction of an arbitrator, no state may

authorize the assertion of a state law claim, whether

grounded in contract or in tort, that would require an

interpretation or application of the terms of that agree-

ment by a tribunal other than the arbitrator. Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904,

85 L.Ed.2d 206 (1985).

If an alleged libel takes the form of a statement by an

employer to justify the imposition of discipline upon an

employee under a union contract, and the question of the

propriety of that discipline may be made the subject of

binding contractual grievance and arbitration procedures,

those procedures must necessarily result in the considera-

tion and resolution of the issues of the truth of the state-

ment made and the propriety under the contract of the

discipline imposed. Further, the underlying purposes of

such grievance and arbitration procedures require that

the parties to those procedures be encouraged to engage

in a full, free, and frank discussion of their positions.

See General Motors Corp. v. Mendicki, 367 F.2d 66 (10th

Cir. 1966).

For these and similar reasons, it has heen held that

the national iabor policy requires the recognition of an

25a

absolute privilege for any statements that are germane

to the subject made to persons involved in contractual

grievance proceedings under a collective bargaining agree-

ment. And, this privilege extends both to those state-

ments made during conferences or hearings conducted

pursuant to those proceedings, General Motors Corp. v.

Mendicki, supra, and to written notices of discipline which

“trigger” the initation of such proceedings. Hasten v.

Phillips Petroleum Co., 640 F.2d 274 (10th Cir. 1981).

Accord Surrency v. Harbison, 489 So. 2d 1097 (Ala.

1986); Aubuschon v. Internaitonal Mill Service, 167 Il.

App. 3d 965, 522 N.E.2d 898 (1988); Lowisville & Nash-

vile Ry. Co. v. Marshall, 586 S.W.2d 274 (Ky. App.

1979); Rougeau v. Firestone Tire & Rubber Co., 274

So. 2d 454 (La. App. 1973); Fulghum v. United Parcel

Service, 424 Mich. 89, 378 N.W.2d 472 (1985); Turner

v. Gateway Tronsportation Co., 569 S.W.2d 358 (Mo.

App. 1978) ; Kloch v. Ratcliffe, 221 Neb. 241, 375 N.W.2d

916 (1985) (equating statements in grievance proceed-

ings to statements in judicial proceedings); Neece v.

Kantu, 84 N.M. 700, 507 P.2d 447, 60 A.L.R.3d 1030

(N.M. App. 1973); Bailey v. Sams, 24 Ohio App. 3d 137,

' 493 N.F.2d 966 (1985); Agriss v. Roadway Express Co.,

483 A.2d 456 (Pa. Super. 1984). Contra Tellez v. Pacific

Gas & Electric Co., 817 F.2d 536 (9th Cir. 1987) (if

contract does not require notice of discipline to be placed

in writing, only qualified privilege recognized), cert. de-

nied, US. , 108 S.Ct. 251, 98 L.Ed.2d 209

(1987); Ezekiel v. Jones Motor Co., 374- Mass. 382, 372

N.E.2d 1281 (1978) (qualified privilege); Bird v.

Meadow Gold Products Corp., 60 Mise. 2d 212, 302

N.Y.S.2d 701 (1969) (qualified privilege).

In this case, the written notice, in each instance, de-

scribed the nature of the discipline being imposed upon

plaintiff, set forth the employer’s reasons which it con-

sidered to be the .“‘proper cause” for the discipline, and

gave the effective date of the employer’s actien. While

26a

there is no evidence that the contract required such a

written notification, the contract also does not prohibit

the notice of discipline from being placed in written form.

Indeed, since the contract requires the employer to demon-

strate “proper cause” for any discipline imposed and sets

a time limit for the employee to invoke the grievance

procedure, the issuance by PSC of a written notice, in

lieu of reliance upon an oral statement of a supervisor,

lessens the possibility of misunderstanding among the

parties and increases the degree of industrial due process

that a disciplined employee is accorded. In light of the

purposes to be served by a recognition of an absolute

privilege for such statements, the fact that the pertinent

contract does not require a written statement by the em-

ployer is, in our view, of little relevance. But compare

Hasten v. Phillips Petroleum Co., supra, with Tellez v.

Pacific Gas & Electric Co., supra.

In addition, the undisputed evidence also demonstrates

that PSC did not abuse its absolute privilege. In Patane

v. Broadmoor Hotel, Inc., supra, it was held that an

employer had a qualified privilege to publish to all co-

employees the reasons for the termination of an employee,

since all employees shared a common interest in informa-

tion relating to the “turnover or status of personnel.”

Accord Denver Public Warehouse Co. v. Holloway, 34

Colo. 432, 83 P. 131 (1905). See Restatement of Torts

(Second) § 596 (1979).

However, the absolute privilege recognized here exists

~among a substantially smaller group. In order to presery>

this privilege, the statement’s publication must be limited

to those persons who have a direct interest in the subject

of the dispute or in the labor-management functions in-

volved in the contractual procedures. See Hasten v. Phil-

lips Petroleum Co., supra.

Here, PSC limited the publication of the notices to

plaintiff and his collective bargaining agent, its labor

27a

relations staff, and supervisors who would become in-

volved in the grievance proceedings if plaintiff elected to

invoke those procedures. Each of the persons receiving

the notices had a legitimate job-related interest in the

dispute or in any future grievance proceedings that might

be scheduled. Thus, the absolute privilege that the na-

tional labor policy requires to be recognized was not

abused here.

Judgment affirmed.

JUDGE VAN CISE and JUDGE STERNBERG concur.

APPENDIX ¢

DISTRICT COURT

CITY AND COUNTY OF p} NVER

STATE OF COLORADO

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APPENDIX D

DISTRIGT COURT

CITY AND COUNTY OF DENVER

STATE OF COLORADO

Civil Action No. 84 CV 12173, Courtroom 2

WILLARD A. THOMPSON,

_ Plaintiff,

PUBLIC SERVICE COMPANY OF COLORADO,

a Colorado corporation, and

R. M. RICHARDS a k a R. MARK RICHARDS,

Defendants.

MOTION FOR SUMMARY JUDGMENT BY

DEFENDANTS PUBLIC SERVICE COMPANY OF

COLORADO AND R. M. RICHARDS A K A

MARK RICHARDS

Defendants, Public Service Company of Colorado and

Mark Richards hereby move this Court to grant sum-

mary judgment pursuant to Rule 56(b), Colorado Rules

of Civil Procedure, upon the following grounds:

1, Plaintiff’s claims for relief which are based upon

alleged libel occurring in an employer employee context

where the employee is covered by a collective bargaining

agreement are preempted by federal labor law. Where a

State cause of action is preempted by federal labor laws,

it is a challenge to the Court’s subject matter jurisdic-

tion and can be raised at any time. International Long-

shoremen’s Assoc, v. Davis, 476 U.S. ; 90 L.Ed.2d

389 (1986).

2. There is no genuine issue as to any material fact

and. Defendants are entitled to a judgment as a matter

of law.

3la

3. The Court is referred to Defendants’ Brief in Sup-

port of their Motion for Summary Judgment, affidavits

and exhibits attached thereto which is incorporated herein

by reference.

Respectfully submitted,

KELLY, STANSFIELD & O’DONNELL

By: /s/ David W. Kerber

DAVID W. KERBER, +13888

550 15th Street, +900

Denver, Colorado 80202

(303) 825-3534

Attorneys for Defendants

DATED: October 14, 1986

CERTIFICATE OF MAILING

I hereby certify that on this 14th day of October, 1986,

a true and correct copy of the foregoing MOTION FOR

SUMMARY JUDGMENT BY DEFENI ANT was placed

in the U.S. mail, postage prepaid, and addressed to:

JOSEPH P. GENCHI, Esq.

JOSEPH P. GENCHI, P.C.

302 E. Elkhorn Ave.

P.O. Box 1990

Estes Park, Colorado 80517

s’ Karen L. Harr

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.