Amicus Curiae Brief — Public Service Co. v. Thompson

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Iu the Supreme Court of the United States

OCTOBER TERM, 1991

PUBLIC SERVICE COMPANY OF COLORADO,

ET AL., PETITIONERS

Vv.

“WILLARD A. THOMPSON

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF COLORADO

BRIEF FOR THE UNITED STATES AS AMICUS CURIJAE

KENNETH W. STARR

Solicitor General

MAUREEN E. MAHONEY

Deputy Solicitor General

Amy L. WAx

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20520

(202) 514-2217

QUESTION PRESENTED

Whether an employer may be sued for defamation

under state law for statements made in a disciplinary

letter sent to an employee, where the court finds that the

evidence does not establish that the disciplinary letter was

required by the collective bargaining agreement.

TABLE OF CONTENTS

Page

a A SALE NR RO sia Fae ee a 1

ENE Uy SSP eS ee TR Le TE 6

a. audio euiesnsencinsaehoitaaabiiots 18

TABLE OF AUTHORITIES

Cases:

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

at EH ER NE 9

Anderson V. Liberty Lobby, Inc., 477 U.S. 242

St RE aa A ee AE 6

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) —......... 17

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.

SEE IO a 14

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

a ceesenentbeeeiie 4

Corbin Vv. Washington Fire & Marine Ins. Co., 278

ie I SEE CPA De ROD cccnscccnccscocncncsunenscceseesesens 16

Coz Broadcasting Corp. V. Cohn, 420 U.S. 469

a cuegmenaiuiiionie 17

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

N.E.2d 1281 (1978) ............ Pane ne ee, 9,16

Franchise Tax Bd. vy. Construction Laborers Vaca-

on eee, aoe woe, © CERES) .........................-... 10

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

Gk GS re 17

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

a cctaneseunapsncanieeshsentness 3

Hasten Vv. Phillips Petroleum Co., 640 F.2d 274

(10th Cir. 1981) 7 Pe

Hyles v. Mensing, 849 F.2d 1213 (9th Cir. 1988) - 13

Johnson V. Anheuser Busch, Inc., 876 F.2d 620 (8th

Cir. 1989) ....... ee 12

Kloch v. Ratcliffe, 221 Neb. 241, 375 N.W.2d 916

(1985, IO ce 15, 16

Krasinski v. United Parcel Service, Inc., 124 Ill. 2d

483, 530 N.E.2d 468 (1988) 15

Lingle v. Norge Div. of Magic Chef, Inc., ‘486 U. Ss.

399 (1988) ee era ae 4,9, 10, 11, 12, 13

(IIT)

Cases—Continued: Page

Linn v. United Plant Guard Workers Local 114,

I es 5, 14

Mock v. Chicago, Rock Island & Pac. R.R., 454 F.2d

Se MO I, cca as 16

Neece V. Kartu, 84 N.M. 700, 507 P.2d 447 (Ct.

App.), cert. denied, 507 P.2d 442 (1973) _.......... 15

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

Se I ss aaa 15, 16

New York Times Co. v. Sullivan, 376 U.S. 254

GAR aS SRN ROLE CaP cn Oe aE 5, 6, 14

Old Dominion Branch No. 496, Nat’l Ass’n of

Letter Carriers Vv. Austin, 418 U.S. 264 (1986)... 14

Petyan v. Eilis, 200 Conn. 248, 510 A.2d 1337

8 Ee aetbelicts 78 vegeta. Rtene! 5S alec ereeaavrt ee ce Matera eee 16

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

BITE acitichia ahenetiennelionssMicsaniteanashocbalithanicntchicenidadirksabapiiio 15

Rougeau Vv. Firestone Tire & Rubber Co., 274

So. 2d 454 (La. Ct. App. 1978) -...0.....w 16

Shane Vv. Greyhound Lines, Inc., 868 F.2d 1057 (9th

pee AEE MS “TR Pe, Tet SA ere 13

Sturdivant v. Seaboard Service System, Ltd., 459

PS > 8. . i eee ene OCEE 15, 16

Tellez v. Pacific Gas & Electric Co., 817 F.2d 536

I I a no eepesiancaniateeninns 8, 18, 17

United Steelworkers v. Rawson, 110 S. Ct. 1904

(1990) .......... Si Rae AES li ite Re AP SET See Ts 10, 11

Statutes and rule:

Labor-Management Relations Act of 1947, § 301,

Rk EE IE AI ER ARG 4,5, 9, 10, 12, 13

AR A EAR LRRD TN RM OMe ans ns ATER 17

i OE TE AA TRE TOs SE A nln 16

Miscellaneous :

Annotation, Defamation: Publication by Intracor-

porate Communication of Employee’s Evalua-

Gee, GF Ace eee (eee «............................- 16

R. Sack, Libel, Slander, and Related Problems

AE ATCA I TRE Te CRETE eh NS OR 8

R. Smolla, Law of Defamation (1989) 8

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1173

PUBLIC SERVICE COMPANY OF COLORADO,

ET AL., PETITIONERS

v .

WILLARD A. THOMPSON

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF COLORADO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s invi-

tation to the Solicitor General to express the views of the

United States.

STATEMENT

1. This case concerns the application of federal labor

law to a defamation action filed by respondent Willard

A. Thompson in Colorado state court against his em-

ployer, petitioner Public Service Company of Colorado,

and his supervisor at the company, petitioner R.M. Rich-

ards. At the time of the dispute, respondent was repre-

sented by Local Union No. 111 of the International

Brotherhood of Electrical Workers, which had a collective

bargaining agreement with Public Service. Pet. App. 2a.

Two separate incidents are at issue.

Respondent first claims that he was defamed by state-

ments in a written notice sent to him by petitioner

Richards on December 6, 1983. The letter informed re-

(1)

spondent that he was suspended for five days without

pay for “poor work performance, creating a nuisance

for customer employees and sexual harassment and/or

unwanted contact of customer employees.” Pet. App.

3a. A copy of the notice was sent to a limited number

of management and union officials, and placed in re-

spondent’s personnel file. Jd. at 4a. The collective bar-

gaining agreement did not expressly require Public Serv-

ice to provide written disciplinary notices. Jd. at 25a-26a;

Pet. 4 n.2.

Respondent challenged his suspension under the griev-

ance mechanism established by the collective bargain-

ing agreement. After a factual presentation to a joint

union-management committee, the parties agreed tw settle

the dispute. Pet. App. 21a. The five-day suspension was

reduced to two days, and the word “sexual” was removed

from that portion of Richards’ letter that accused re-

spondent of “creating a nuisance for customer employees

and sexual harassment and/or unwanted contact of cus-

tomer employees.” Jd. at 3a, 4a. Respondent mounted no

further challenge to the disciplinary suspension. 7d. at 4a.

~ The second claim of defamation was based on a letter

of reprimand issued to respondent by Richards on June

29, 1984. That letter (which was given the same limited

circulation as the previous letter) accused respondent of

“falsification” of his time card in claiming sick leave

for June 5, 1984. Pet. App. 4a, 22a. According to Rich-

ards, respondent knew that he was required to have a

doctor’s excuse to be eligible for sick leave, and was aware

that, by claiming leave without the required excuse, he

had falsified the time card. Jd. at 4a.

It is unclear whether respondent invoked the collective

bargaining agreement’s grievance procedures to protest

this reprimand. Pet. App. 22a. Respondent did, however,

take the reprimand directly to a third-level supervisor,

who deleted the reference to “falsification.” The revised

letter of reprimand accused respondent of “malingering”’

and ignoring “required polic{ies] [and] procedures’ in

claiming sick leave on his time card. Respondent did not

challenge the revised reprimand. /d. at 4a.

2. On December 3, 1984, respondent filed a state court

complaint alleging that Richards’ disciplinary notices de-

famed him. Pet. App. 4a, 22a-23a. In April 1987, the

state trial court granted petitioners’ motion for summary

judgment. The court held that both disciplinary notices

were protected by a qualified privilege under Colorado

law. On the basis of exhibits and deposition excerpts, the

trial court determined that there was no genuine issue

as to actual malice and, accordingly, entered summary

judgment in favor of petitioners. /d. at 28a-29a.

3. The Colorado Court of Appeals affirmed the district

court’s judgment on other grounds. The court of appeals

decided: that “national labor policy requires the recogni-

tion of an absolute privilege” for the ietters of reprimand

in issue. Pet. App. 24a-25a. The court accordingly con-

cluded that federal labor law preempts the state law of

qualified privilege otherwise applicable to these state-

ments, and affirmed the dismissal of the action.

Relying on General Motors Corp. v. Mendicki, 367 F.2c.

66 (10th Cir. 1966), and Hasten v. Phillips Petroleum

Co., 640 F.2d 274 (10th Cir. 1981), the court determined

that an absolute privilege extends not only to statements

made during grievance conferences or arbitration hear-

ings but also “to written notices of discipline which

‘trigger’ the initiation of such proceedings.” Pet. App.

25a. The court acknowledged that in Tellez v. Pacific Gas

& Electric Co., 817 F.2d 5386 (1987), the Ninth Circuit

had ruled that the Hasten rule of absolute privilege is

inapplicable to a notice of discipline not mandated by the

collective bargaining agreement. In such circumstances,

the Tellez court reasoned, such notice is not part of the

“grievance process” required by the labor agreement. The

Colorado appellate court nevertheless rejected the line

drawn in TJellez and concluded that Mendicki and Hasten

should be extended to the statements at issue even though

“there is no evidence that the contract required” the no-

tices of reprimand. Pet. Ap». 26a. The court of appeals

further rejected the contention that petitioners had

abused their absolute privilege by publishing the two dis-

ciplinary notices to persons who did not have a legitimate

interest in the dispute. Jd. at 26a-27a.

4. The Colorado Supreme Court granted certiorari to

consider whether “federal labor law, under the circum-.

stances of this case, requires the recognition of an un-

qualified rather than a qualified privilege, as previously

recognized by this court under state law with respect to

statements similar to those made here.” Pet. App. 5a.

The court found that both the trial court and the court

of appeals had erred, and reversed the entry of judgment

in petitioners’ favor.

a. With respect to the appellate court ruling, the state

supreme court rejected the conclusion that, “under fed-

eral labor law, statements made by an employer in a no-

tice of discipline may not be the basis of a defamation

action.” Pet. App. 2a. The court noted that, in Churchey

v. Adolph Coors Co., 759 P.2d 1336, 1346 (Colo. 1988),

it had previously determined that an employer’s statement

that an employee had been terminated for dishonesty was

protected by a qualified privilege under the Colorado state

law of defamation. The Churchey privilege required the

employee to prove that the defendant “publishe|d] the

material with malice, that is, knowing the matter to be

false, or act{ed] in reckless disregard as to its veracity.”

Pet. App. 5a. The Colorado Supreme Court then deter-

mined that, “under the facts of this case,” federal labor

law did not require preemption of the state defamation

action governed by a qualified privilege. Jd. at 6a.

First, the court rejected the argument that Section 301

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

29 U.S.C. 185, preempted respondent’s state tort defarna-

tion claim in its entirety. Applying the test in Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), the

court determined that respondent’s claim was “independ-

ent” of the contract, because each element of the claim

“may be resolved without reference to the collective bar-

gaining agreement.” Pet. App. 12a. The court found

that the decisions in Mendicki and Hast’n, which recog-

nized an absolute privilege for certain statements made

in the course of grievance proceedings, could not support

preemption under Section 301 in this case because they

were decided prior to Lingle. The court indicated that,

to the extent these cases were based upon a Section 301

preemption analysis, their “continuing validity is ques-

tionable” after Lingle. Pet. App. 8a.

The state supreme court also rejected petitioners’ con-

tention that there was any other basis “under the rubric

of ‘national labor policy’ ” for protecting petitioners’ com-

munications under an absolute or unqualified privilege.

The court reasoned that “existing Supreme Court prece-

dent suggests that a qualified privilege suffices” to safe-

guard the interests of national labor policy. Pet. App.

13a. The court explained that, in Linn v. United Plant

Guard Workers Local 114, 383 U.S. 53 (1966), this Court

decided that state law defamation actions arising from

statements made during a union organizing campaign

were not wholly preempted, and could instead proceed

under the qualified privilege standard announced in New

York Times Co. v. Sullivan, 376 U.S. 254 (1964). Be-

cause the court viewed the federal interest in free de-

bate considered in Linn to be “quite similar to the fed-

eral interest in encouraging frank discussion in the con-

text of a grievance proceeding 0? a disciplinary action,”

it found no basis for affording an absolute privilege for

the communications in this case.' The court concluded

that “a state law defamation action based upon [such]

statements * * * may go forward when the state law

'At one point, the language of the opinion suggests that the

Colorado Supreme Court was willing to assume for the purposes

of its analysis that the statements in this defamation action were

made “in a grievance or disciplinary proceeding” under a collective

bargaining agreement. See Pet. App. 15a. The opinion does not

make any finding to this effect, and does not take issue with the

court of appeals’ factual conclusion that the notices in issue were not

required by the collective bargaining agreement or made during the

course of a grievance proceeding.

recognizes a qualified privilege for [such] communica-

tions.” Pet. App. 15a.*

b. With respect to the trial court ruling, the court

found that summary judgment should not have been

. granted “under state law,” because there was a “genuine

‘issue of fact” concerning the existence of malice. Pet.

App. 2a, 18a. Applying the summary judgment stand-

ards set forth in Churchey, supra, the court concluded

that the affidavits and deposition excerpts established

“that a genuine issue of fact exists with respect to

whether Richards knew of the falsity of his statements or

acted with reckless disregard as to the falsity of his state-

ments contained in the letters in question.” The court

remanded the case for trial. Pet. App. 18a.

DISCUSSION

Petitioners concede that the Colorado Supreme Court

“correctly applied the Lingle analysis” in concluding that

“the determination of [r]espondent’s defamation claims”

does not require “an interpretation of the Collective Bar-

“It does not appear that the parties have ever raised (Pet. (i)),

or that the Colorado Supreme Court ever resolved (Pet. App. 5a),

the question of the scope of any qualified privilege that may be

required by federal labor law in the circumstances of this case.

Rather, in applying the qualified privilege under Colorado law, the

state supreme court noted that the state standard was “virtually in-

distinguishable from the standard approved by the Supreme Court”

in Linn, as borrowed from New York Times Co. v. Sullivan, supra.

Pet. App. at 14a.

The court would appear to be correct insofar as the definition of

malice is concerned. However, the court did not address the ques-

tion of whether the burden of proof applicable to the issue of malice

would be the same under state and federal law. See New York Times

Co. vy. Sullivan, 376 U.S. at 285-286 (malice must be proved with

“convincing clarity”); see also Anderson Vv. Liberty Lobby, Inc., 477

U.S. 242, 257 (1986) (referring to New York Times “clear and

convincing evidence” requirement). Since petitioner does not present

the argument that the Colorado state law of qualified privilege is

preempted in favor of a more protective qualified privilege under

federal law, we refrain from addressing that issue.

gaining Agreement.” Pet. 9-10. They nevertheless con-

tend (Pet. 8-13) that the state defamation action in this

case is completely preempted by “federal labor policy,”

because the grievance process established by a collective

bargaining agreement cannot function properly unless

participants enjoy an absolute privilege for defamatory

statements relating to such proceedings. They assert that

the need for this absolute privilege extends even to state-

ments, such as those in issue here, that precede the em-

ployee’s decision to invoke the grievance process estab-

lished by the collective bargaining agreement, and that

are not otherwise found to be mandated by the contract.

Further, petitioners assert that review is required to

resolve a conflict among state and federal courts on the

question presented.

We disagree. Collective bargaining agreements typi-

cally establish procedures for resolution of employee

grievances through various means, including settlement

meetings, hearings conducted by labor-management com-

mittees, and binding arbitration. There is no dispute

that the notices of reprimand at issue gave rise to a

grievance that could be redressed through such contrac-

tual procedures. But the factual findings in this case do

not establish that these disciplinary notices were also

part of the grievance resolution process mandated by

the collective bargaining agreement. Indeed, the state

court of appeals foun’ that the notices were not even

required by the agyv+ement as the first step in the griev-

ance process. Pet. App. 26a.* The rule advanced by peti-

tioners in this case would accordingly serve as a com-

3 Petitioners concede that the collective bargaining agreement did

not contain an express requirement that the employer send a written

disciplinary notice, Pet. 4 n.2, but now suggest that the requirement

for such notice was impliedly incorporated into the agreement by

past practice. However, the Colorado Court of Appeals found that

“there is no evidence that the contract required such a written noti-

fication” (Pet. App. 26a) and the Colorado Supreme Court was

silent on the issue. We therefore consider the legal issue based upon

the lower court’s findings of fact.

plete bar to any state defamation action directed at a

broad class of statements made in the course of an em-

ployment relationship.‘ Nothing in federal law or labor

policy mandates this result, and it would be inconsistent

with this Court’s decisions.°

We recognize that some confusion exists in lower court

decisions concerning the source and scope of privileges

applicable to statements made during grievance hearings,

arbitration, and other procedures pursuant to collective

bargaining agreements.® Greater clarity in this broad

area is plainly desirable. But none of those decisions has

concluded that federal labor law absolutely bars a defa-

mation action where, as here, the claim is based upon

statements that are not part of the process prescribed by

a labor contract, and where the claim can be resolved

without interpretation of the collective bargaining agree-

ment. Accordingly, we do not believe that review of this

case is likely to provide the Court with the appropriate

vehicle for resolving the issue that divides some of the

lower courts: whether statements made in accordance

with grievance procedures established by a collective bar-

gaining agreement are absolutely privileged under federal

4 Complete preemption of the state law of defamation by federal

labor law is conceptually distinct from an “absolute privilege” against

liability for defamation. Preemption involves the displacement of a

state cause of action by federal law, whereas an absolute privilege—

which is sometimes recognized under state law for a narrow class of

cases, see note 15, infra—is a defense to an otherwise valid cause of

action. See R. Smolla, Law of Defamation §§ 8.02, 8.03 (1989); R.

Sack, Libel, Slander, and Related Problems 268-278, 284-287 (1980).

Because complete preemption and an absolute privilege—to the ex-

tent it applies—have the same effect of barring recovery for defama-

mation, courts do not always distinguish between the two doctrines.

5 Although we do not believe that an absolute privilege is required

by federal law for the statements in issue here, we do not rule out

the need for extending an absolute privilege to statements made in

other contexts, such as in the course of a grievance hearing con-

ducted under a collective bargaining agreement. See notes 13 & 15,

infra.

® See pp. 15-16, infra.

labor law. Compare, Hasten v. Phillips Petroleum Co.,

640 F.2d 274 (10th Cir. 1981), with Ezekiel v. Jones

Motor Co., 374 Mass. 382, 372 N.E.2d 1281 (1978). That

issue simply is not presented on this record.

1. a. Insofar as the Colorado Supreme Court held that

Section 301 of the LMRA does not preempt respondent’s

defamation claim, its decision was correct. Section 301,

by its terms, provides federal jurisdiction over ‘“js]uits

for violation of contracts” entered into by employers and

organized labor. This Court has held that Section 301

preempts not only lawsuits to enforce the terms of col-

lective bargaining agreements, but also claims that re-

quire interpretation of those agreements. As explained

in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220

(1985):

{When resolution of a state-law claim is substan-

tially dependent upon analysis of the terms of an

agreement made between the parties in a labor con-

tract, that claim must either be treated as a § 301

claim, see Avco Corp. v. Aero Lodge 735, 390 U.S.

557 (1968), or dismissed as pre-empted by federal

labor-contract law.

In Lingle, 486 U.S. at 401-412, the Court determined

that an employee who had challenged her discharge under

the grievance procedures of a collective bargaining agree-

ment could also pursue a parallel state court action for

wrongful discharge that required her to establish that she

had been discharged in retaliation for filing a workers’

compensation claim. /d. at 402, 407-409. The Court

reasoned that Section 301 preempts a state cause of action

if, and only if, resolution of the state law claim “re-

quire[s] construing the collective-bargaining agreement.”

486 U.S. at 407. The Court concluded that, “even if dis-

pute resolution pursuant to a collective-bargaining agree-

ment, 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 inter-

preting the agreement itself, the claim is ‘independent’

of the agreement for § 301 pre-emption purposes.” Jd.

at 409-410. The Court found that the dispute resolution

mechanism established by the collective bargaining agree-

ment would not be impermissibly undermined by the

availability of such parallel state damage actions. /d. at

411-413.

Petitioners’ concession (Pet. 9-10) that the Colorado

Supreme Court correctly applied Lingle is fatal to their

argument that the preemptive force of Section 301 ex-

tends to respondent’s defamation claims. Under Lingle,

a state tort suit is not preempted merely because it re-

lates to a dispute that can be resolved by methods estab-

lished through a collective bargaining agreement.’ Rather,

the test is whether resolution of the claim requires inter-

pretation of the agreement. Here, all parties agree that

it does not; thus, Section 301 does not preempt this

action.®

Contrary to petitioners’ contention (Pet. 11), the

Court’s decision in United Steelworkers v. Rawson, 110

7 See, e.g., Franchise Tax Bd. vy. Construction Laborers Vacation

Trust, 463 U.S. 1, 25 n.28 (1983) (noting, by way of example, that

“a state battery suit growing out of a violent strike would not arise

under § 301 simply because the strike may have been a violation of

an employer-union contract”). Petitioners contend that Lingle would

permit preemption of some state law actions that work too great an

interference with the grievance process—even where interpretation

of the contract was not required—but that rationale for preemption

would not be implicated here. As explained below, pp. 13-14, infra,

we do not believe that preemption or an absolute privilege is re-

quired for statements such as these to assure the proper functioning

of the dispute resolution process.

8 Under the rationale adopted by some courts, see pp. 13, 14-17,

infra, which distinguish between communications that are mandated

by the agreement and those that are not, the determination of

whether an absolute or qualified privilege applies can require a court

to look to the collective bargaining agreement. We do not believe that

the need to resolve the threshold contractual issue of whether a com-

munication is required by the agreement calls for preemption. This

Court recognized in Lingle, 486 U.S. at 413 n.12, that collateral is-

sues of contract interpretation arising in state actions can be re-

solved under federal labor law by state courts.

S. Ct. 1904 (1990) does not lead to a different result. In

Rawson, the employee accused the union of negligently

breaching its duty to conduct safety inspections of a

mine. That duty “ar[ose] out of the collective bargain-

ing agreement signed by the Union as the bargaining

agent for the miners.” Jd. at 1910. The Court explained

that the union was not accused of violating any “duty of

reasonable care owed to every person in society”; rather,

its duty to inspect the mine had its source in the contract.

Id, at 1910-1911. The Court concluded that the state law

tort action against the union for negligent breach of duty

was preempted by Section 301 because “the duty to the

employee of which the tort is a violation is created by a

collective agreement and without existence independent of

the agreement.” 110 S. Ct. at 1909.

The state tort claim in Rawson was not “independent”

of the collective bargaining agreement “in the sense of

‘independent’ that matters for § 301 pre-emption pur-

poses.” Lingle, 486 U.S. at 407. Without referring to

the union’s agreement with the employer, it was impos-

sible in Rawson to ascertain whether the union had

breached any obligation to the employees. The state tort

action thus could not be resolved without interpretation

of the labor agreement itself. Here, in contrast, the em-

ployer’s duty to refrain from defaming respondent does

not stem from any contract between the parties; rather,

it is a duty that is “owed to every person in society.”

Rawson, 110 §. Ct. at 1910-1911. The determination

whether petitioners possessed such a duty—and, there-

fore, whether the duty was breached—can be made with-

out referring to the contract at all.® There is, accord-

® Petitioners’ assertion (Pet. 11) that their obligations “concern-

ing the grievance procedure and issuing disciplinary notices arose

out of the Collective Bargaining Agreemeut” is factually unsup-

ported and, in any event, misses the mark. The duty that petitioners

allegedly hreached was not the contractually imposed duty to com-

ply with the procedures for processing grievances, but, rather, the

state-imposed duty not to injure respondent’s reputation by know-

ingly, no basis for concluding that Section 301 mandates

preemption of state defamation actions such as this one,

which do not require interpretation of the collective bar-

gaining ment.

b. We do not share petitioners’ view (Pet. 14-15) that

the decision below conflicts with two decisions of the

courts of appeals finding particular defamation claims

preempted by Section 301. Our reasons are these: Ap-

plication of Lingle is necessarily fact specific; both cases

are factually distinguishable from the claim in issue;

and the reasoning adopted by those circuits indicates that

those courts would not hold that Section 301 preempts

respondent’s claims.

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

624 (8th Cir. 1989), the defamation claim was based on

accusations of misconduct by the plaintiff’s co-workers,

which allegedly caused the plaintiff’s discharge. The court

determined that resolution of the defamation claim “would

necessarily involve construction of the collective bargain-

ing agreement to determine whether [the plaintiff] was

wrongfully discharged.” Since the defamation claim could

not be resolved “without interpreting or analyzing the

terms of the * * * agreement,” the court concluded that

it fell within the preemptive scope of Section 301 under

this Court’s decision in Lingle, supra. 876 F.2d at 624.

Although the Eighth Cireuvit correctly articulated the

Lingle standard for determining preemption, we are less

certain that the standard was correctly applied. A defa-

mation claim in the employment context might well be

preempted by Lingle in certain factual situations, but the

Eighth Circuit did not explain how the validity of the

plaintiff’s discharge under the terms of the contract might

affect the disposition of the defamation claim. It is clear,

however, that the Eighth Circuit would not have found

preemption under the present circumstances, where the

ingly uttering falsehoods. A duty to speak can be imposed by a

variety of agreements, but that does not excuse the speaker from

the state law duty to speak in a manner that does not defame others.

parties concede that resolution of the claim does not re-

quire interpretation of the agreement. In any event, a

possibly erroneous application of Lingle to a particular

set of facts by a court of appeals would not, in our view,

independently warrant review of this case.

Petitioners also contend (Pet. 14-15) that the Colorado

decision is in conflict with Shane v. Greyhound Lines,

Inc., 868 F.2d 1057, 1063 (9th Cir. 1989), but that case

presents an issue not decided here. In Shane, the court

of appeals made an express finding that the collective bar-

gaining agreement obligated the employer to send the

employee the disciplinary aotice that contained the al-

legedly defamatory statements, and the court based its

finding of preemption on that fact. What is more, in an

earlier case, the Ninth Circuit rejected the claim that

Section 301 preempts a defamation action arising from

statements in a suspension letter that was not mandated

by the collective bargaining agreement. See Tellez v.

Pacific Gas & Electric Co., 817 F.2d 536, 538-539 (1987).

Because the state court found that there was “no evi-

dence” that the notices in issue here were “required” by

the collective bargaining agreement, the Ninth Circuit

presumably would apply Tellez, not Shane, and hold that

this claim is not preempted by Section 301."°

2. a. Because Section 301 completely preempts only

those state law claims that cannot be resolved without

reference to a collective bargaining agreement, that pro-

vision does not operate to bar the state defamation claims

at issue here. We do not share petitioners’ view (Pet.

10 See also Hyles v. Mensing, 849 F.2d 1213, 1215-1216, 1217 (9th

Cir. 1988) (statements made in the course of a grievance hearing

preempted by Section 301). The Section 301 analysis employed in

Shane can be questioned. The fact that a communication is re-

quired by the collective bargaining agreement does not establish

that resolution of the claim meets the Lingle test of required contract

interpretation. See note 8, supra. However, there are not enough

facts set forth in the Shane opinion to determine whether, under

the rule in Lingle, interpretation of the labor contract was necessary

to resolve the defamation claim,

6-9) that federal labor policy nevertheless requires that

the state law of qualified privilege be displaced by an

absolute privilege in this case. In our view, there is no

basis for petitioners’ assertion that absolute protection

for disciplinary statements in the workplace is necessary

for grievance and arbitration mechanisms to work effec-

tively. A qualified privilege standard that requires a

plaintiff to prove actual malice affords employers wide

latitude in revealing the grounds for disciplinary action.

We do not believe that the success of the grievance process

depends upon a right to include knowing or reckless false-

hoods in such communications.

Petitioners have not advanced any persuasive reason

why a notice of reprimand is entitled to greater protec-

tion than the communications at issue in Linn v. United

Plant Guard Workers Local 114, 383 U.S. 53 (1966), or

Old Dominion Branch No. 496, Nat’l Ass’n of Letter Car-

riers V. Austin, 418 U.S. 264 (1974), where this Court

held that the federal interest was sufficiently protected

by adhering to a qualified privilege standard borrowed

from New York Times v. Sullivan, supra. In those cases,

the Court acknowledged that federal labor policy requires

that parties be allowed substantial freedom to engage in

vigorous speech in the course of an organizational cam-

paign or union membership drive, but nevertheless found

that preemption (and implicitly, an absolute privilege)

was unnecessary to vindicate that policy. That result

should control the outcome here."!

b. We also do not believe that the judgment of the

Colorado Supreme Court is in conflict with the judgment

of any other court. We recognize that some courts have

held that certgin types of communications made in the

1! Exposure to the costs of defending defamation actions can in-

hibit speech. But this Court has already determined that this ra-

tionale does not require preemption of defamation actions directed

at statements made by employees in the course of concerted activity.

See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983).

An employer should not be afforded greater protection in this con-

text.

course of procedures prescribed by a collective bargain-

ing agreement for the resolution of emnloyment disputes

are entitled to an absolute privilege under federai labor

law. See, e.g., Hasten v. Phillips Petroleum Co., 640

F.2d 274, 278 (10th Cir. 1981); Nelson v. Lapeyrouse

Grain Corp., 534 So. 2d 1085, 1089, 1092 (Ala. 1988).

It is also true as petitioners discuss (Pet. 13-16), that

there is disagreement among certain decisions: some

courts apply an absolute privilege to all communica-

tions made in the course of procedures required by the

contract; ** some have restricted the application of this

absolute privilege to statements made in grievance hear-

ings;'* some suggest that an absolute privilege might

never be required; '* and some apply an absolute privi-

12 Hasten V. Phillips Petroleum Co., 640 F.2d 274, 278 (10th Cir.

1981) (applying absolute privilege to discharge letter that the em-

ployer was required to send under the collective bargaining agree-

ment because “federal labor law and policy require the absolute priv-

ilege rule as to communications made within the context of proceed-

ings provided for by the collective bargaining agreement and its

provisions for a grievance machinery”); Neece v. Kantu, 84 N.M.

700, 705, 507 P.2d 447, 452 (Ct. App.) (statements made in a letter

that “constituted a disposition of plaintiff’s grievance after a hear-

ing” enjoy an absolute privilege), cert. denied, 507 P.2d 442 (1973).

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

1089, 1092 (Ala. 1988) (extending an absolute privilege, apparently

under federal law, to statements made in the course of hearings to

resolve a grievance, but applying qualified privilege to accusations

made in an investigation prior to initiation of grievance proceed-

ing) and Reynolds Metals Co. v. Mays, 547 So. 2d 518 (Ala. 1989)

(telegrams to employees notifying them of disciplinary action and

dismissal are protected only by a qualified privilege). See also

Sturdivant v. Seaboard Service System, Ltd., 459 A.2d 1058 (D.C.

1983) (absolute privilege protects communications by participants

in labor arbitration proceedings); Kloch v. Ratcliffe, 221 Neb. 241,

245-248, 375 N.W. 2d 916, 919-921 (1985) (statements in investiga-

tory hearing held pursuant to an agreement governed by the Rail-

way Labor Act are absolutely privileged).

14 See, e.g., Krasinski v. United Parcel Service, Inc., 124 Ill. 2d

483, 486-492, 530 N.E.2d 468, 469-472 (1988) (accusations of dis-

lege under state law.*® But none is in conflict with the

honesty prior to discharge, and in discharge notice required under

contract, are actionable under Linn/New York Times qualified priv-

ilege standard) ; Ezekiel v. Jones Motor Co., 373 Mass. 382, 385-388,

372 N.E. 2d 1281, 1284-1286 (1978) (statements made to grievance

board “revealing grounds for [plaintiff’s] termination” are entitled

only to qualified privilege.)

15 Absent superseding federal law, the state law of privilege con-

trols in actions arising under state defamation law, whether in state

or federal court. See Fed. R. Evid. 501 (state law of privilege ap-

plies in “civil actions * * * as to which State law supplies the rule

of decision”). Some states effectively accord an absolute privilege,

on independent state grounds, to certain commuazications in the em-

ployment context. See, e.g., Petyan v. Ellis, 200 Conn. 248, 510 A.2d

1337 (1986) (defamatory communications to state unemployment

compensation board absolutely privileged) ; Sturdivant v. Seaboard

Service System, Ltd., 459 A.2d 1058 (D.C. 1983) (absolute privilege

for participants in arbitration adopted, in part, to protect court’s

new alternative dispute resolution machinery) ; Rougeau Vv. Firestone

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

privilege for statements made in connection with investigation of

employee for theft of employer’s property); Nelson v. Lapeyrouse

Grain Corp., 534 So. 2d 1085, 1093-1094 (Ala. 1988) (defamatory

communications between managerial employees concerning corporate

business not actionable because not a “publication” under state law) ;

Annotation, Defamation: Publication by Intracorporate Communi-

cation of Employee's Evaluation, 47 A.L.R.4th 674 (1986) (discuss-

ing the jurisdictions that afford no defamation remedy for com-

munications within the corporation itself).

Some courts have suggested that statements made in the course

of grievance or arbitration proceedings are entitled to protection

under the common law absolute privilege that applies to statements

made in a quasi-judicial setting. See, e.g., Mock v. Chicago, Rock

Island & Pac. R.R., 454 F.2d 131, 133 (8th Cir. 1972) (discussing

the “absolute privilege” that may “attach[] to relevant statements

made during administrative proceedings which are ‘quasi-judicial’

in nature’’), and cases cited therein; Kloch v. Ratcliffe, 221 Neb. 241,

245, 375 N.W.2d 916, 919 (1985) (relying in part on state law

cases recognizing absolute privilege for statements in connection

with “quasi-judicial” proceedings to hold that statements in in-

vestigatory hearing held pursuant to an agreement governed by the

Railway Labor Act are absolutely privileged) ; Corbin v. Washington

Fire & Marine Ins. Co., 278 F. Supp. 393, 395-397 (D.S.C. 1968)

(absolute privilege attaches to presentation of testimony and argu-

ment before a board of arbitrators in a private dispute).

result in this case: no court has recognized an absolute

privilege under the general rubric of federal labor policy

for communications not found to be required by the terms

of the collective bargaining agreement, nor made in the

course of grievance procedures established by the con-

tract. See Tellez v. Pacific Gas & Electric Co., 817 F.2d

at 538-539 (expressly declining to extend an absolute

privilege to disciplinary notices “neither required by

the collective bargaining agreement, nor a part of the

grievance process’’).’® Because the factual predicates for

the decisions recognizing an absolute privilege are missing

in this case, it cannot be said that the Tenth Circuit, or

any other court, would decide this case differently."

16 Petitioner cites Fulghum v. United Parcel Service, Inc., 424

Mich. 89, 102-105, 378 N.W. 2d 472, 478-479 (1985) as recognizing

an absolute privilege for an employer’s accusations of dishonesty

against an employee at the time of his suspension. The discussion

on which petitioner relies is found in a concurring opinion, and did

not command a majority of the court. See 424 Mich. at 92-93, 378

N.W.2d at 473.

17 The petition in this case is interlocutory, since the Colorado Su-

preme Court denied petitioners’ motion for summary judgment and

remanded for trial. In the government’s view, there is no jurisdic-

tional obstacle to review of this decision, which would appear to

qualify under an exception to the final judgment rule. See 28 U.S.C.

1257; Cox Broadcasting Corp. Vv. Cohn, 420 U.S. 469, 482-486

(1975); Belknap, Inc. vy. Hale, 463 U.S. 491, 497-498 n.5 (1983).

Nevertheless, it should be noted that if the Court declines to review

the decision at this time, and if petitioners receive an adverse de-

cision on the defamation claims after a full trial on the merits,

they will have another opportunity to present their contentions to

the Court in a petition for a writ of certiorari seeking review of

the final judgment.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.