# Petitioners Reply Brief — Public Service Co. v. Thompson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1560%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1991 - **Citation:** 502 U.S. 973 ## Text 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) iv 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 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 3 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) 4 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. 5 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- 6 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 8 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 9 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 10 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. 11 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- 12 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- 13 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 14 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 15 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 ’ 16 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). 17 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 la 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. 2a 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. >i 3a 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 — 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 ORDER TH] [ATTER ! n | i ms I » ce ( (7 LJe Te ChAT if on 7 ~ TY) y | immary Judgmer he Court has reviewed the brie nes } +} Cy ry , j ’ i . T ao i Lit 2 t (*() ‘ nad now ma ‘ rs " i y y TY ' T T ; } vw | { ne ’ ( CONE ? (1 ; A and wal r . ) ‘¥ , ’ ’ ; The Pla COMp ! ALCL [WoO Claln IO) ellel r ' 1 The ’ Ciall e | eC Ipo? eged re ocr ? ae ) — +7 ] r } ain ; el Dit e( [) ne Defens rt Phe ‘ ments occurred The CONT. ot ( CID} } j _—= 30a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1560%3A1. Public record. Not legal advice.