Opposition Brief — Barbe v. Great Atlantic & Pacific Tea Co.

No. 91-863

| FILED

"DEC 19 1993

—_—_—_—X—.?_[anjnRhm—_=S=S=S in tig

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

JANET BARBE

Petitioner,

vs.

THE GREAT ATLANTIC & Paciric Tea Company, INC.

and

W. E. ZENTGRAF

Respondents.

On Petition For a Writ Of Certiorari To The United

States Court of Appeals For The Fourth Circuit

BRIEF OF RESPONDENTS, THE GREAT ATLANTIC &

PACIFIC TEA COMPANY, INC. AND W. E. ZENTGRAF,

IN OPPOSITION TO CERTIORARI

Peter F. HEALEY, JR.

SCHNADER, HARRISON, SEGAL &

Lewis

1111 19th Street, N.W.-Suite 1000

Washington, D.C. 20036

(202) 463-2962

Attorneys for Respondent

Of Counsel:

Mary ELLeN B. Orrer, ESQUIRE

THE GREAT ATLANTIC & PACIFIC

TEA ComPANY, INC.

Two Paragon Drive

Montvale, New Jersey 07645

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-6203

— a

QUESTION PRESENTED

Where petitioner’s common law claims of defama-

tion and intentional infliction of emotional distress

allegedly arose from the respondents’ transmission to

the union of the notice of her termination, which

transmission was required implicitly under the terms

of the applicable collective bargaining agreement,

should this Court review the judgment of the United

States Court of Appeals for the Fourth Circuit hold-

ing that resolution of such claims requires interpre-

tation of the collective bargaining agreement and such

claims are preempted, therefore, by § 301 of the La-

bor Management Relations Act, 29 U.S.C. § 185?!

' Petitioner’s Statement of the Question Presented (petition

[‘‘pet.”’], p. i) is incorrect in that respondents did not and do

not rely on so-called “‘defensive’’ preemption of petitioner’s claims

but on the total preemption of such claims because of their

exclusively federal nature. Petitioner’s statement also mischar-

acterizes the claims as “‘garden variety’? when the common law

torts alleged arose only because of obligations which arguably

inhere in the particular collective bargaining contract whose con-

struction is at issue here.

ii

PARTIES IN THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

The Great Atlantic & Pacific Tea Company, Inc.?

W. E. Zentgraf

Janet Barbe

_

* Respondent, The Great Atlantic & Pacific Tea Company, Inc.

(‘A&P’), a corporation organized under the laws of the state

of Maryland, is a publicly traded company. A&P is informed

that at December 13, 1991, Tengelmann Warenhandelgesells-

chaft, a partnership organized under the laws of the Federal

Republic of Germany, was the beneficial owner of 53.2 per cent

of the outstanding shares of A&P. All subsidiaries of A&P are

wholly owned subsidiaries.

ili

TABLE OF CONTENTS

Page

SE SOUR EEE? cscccccccsssesesvocsccsessccceccsssssoees i

PARTIES IN THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT .................. il

I EEE, iciccscancnscesancecesescscsssoczesecssees ill

I NEED vesescsnsevenscssesssersescccvsenseees iv

Neen csesncscncsannaveceoendsocossoncnoe 2

ED co vscsncccnsvccncantosarassevensesonsescess 2

COUNTERSTATEMENT OF THE CASE .................. 2

REASONS FOR DENYING THE WRIT ..................... 6

a ee 6

I. As Applied to the Fact Pattern of this Case,

There is No Conflict Among the Circuits Re-

garding the Preemptive Effect of § 301 ..... 8

II. Because the Decisions of the Courts Below

Turned on Facts Unique to this Case, the

Discretionary Review Jurisdiction of this

Court Should Not be Exercised ................... 11

III. The Decisions by the Courts Below Were

I a icand a cicadenssvaavnssesysinenccoscsoses 12

IV. A&P’s Letter of Notification to the Union Is

Unqualifiedly Privileged 0.0.0.0... csessesseeeeees 16

IEE acddssnsscsbenctbatentecssvossscvsovnsseveeesercescocoseee 17

iv

TABLE OF AUTHORITIES

CASES:

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

eC ac ST

Berenvi v. Immigration Director, 385 U.S. 630

2 ag ot REIT SAAS ie ae eR

Branti v. Finkel, 445 U.S. 507 (1980) veececccccccccecee.

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

I cidatainchiitNaticcaniceatila i Li

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987),

iggy Metropolitan Life Insurance Co. v. Tay-

Ss 6° & - eed

Chmiel v. Beverly Wilshire Hotel Company, 873 F.2d

RR

Douglas v. Information Technologies, 877 F.2d 565

i | Ra aes

Franchise Tax Board v. Construction Laborers Va-

cation Trust, 463 U.S. 1 ER ce

General Motors Corporation v. Mendicki, 367 F.2d

dec tt... eine

Graver Tank & Manufacturing Co. v. Linde Air

Products Co., 336 U.S. 271 I alesis

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

ee ee i

Harris v. Jones, 281 Md. 560 , ees

Hasten v. Phillips Petroleum Co., 640 F.2d 274 (10th

A SISA, LENE ec

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

Jackson v. Southern California Co., 881 F.2d 638

ee rs WD crcesiciecendekl nastiest ie sc.

Jacron Sales Co. v. Sindorf, 276 Md. 580 (1976) ..

Keehr v. Consolidated Freightways of Delaware, Inc.,

825 F.2d 133 (7th Cir. + RSA a Ro ee

Table of Authorities Continued

Page

Knafel v. Pepsi-Coia Bottlers of Akron, Inc., 850

F.2d 1155 (6th Cir. 1988) .............ssecccceerereeees 9

Krashna v. Oliver Realty Inc., 895 F.2d 111 (8rd

CW. 1DDDD svececcnoresscarestvcnnteccacecovescesusesccosevnscasee

Lingle v. Norge Division of Magic Chef, Inc., 486

U.S. B09 (1988) ....ccccrccrecccssoovcecersercccsessssensncess 8,11,13

Magnum Import Company, Inc. v. Coty, 262 US.

159, 163 (1923) ...........cccscccccssscssscrrrcsssssvsncsoooees 11

McCormick v. AT&T, 934 F.2d 531 (4th Cir., May

BB, TODD) nncovecscerevssnccosesenvorsesnssoresteeasssnonsscvassoes 6

Metromedia Inc. v. Hillman, 285 Md. 161 (1979) . 14

Metropolitan Life Insurance Co. v. Taylor, 481 US.

BB (1GBT) ..cctnsccccsresscescoversseciecsrocsvssrsveconsenesooness 13

NCAA v. Board of Regents, 468 U.S. 85 (1984) .... 12

O’Shea v. The Detroit News, 887 F.2d 683 (6th Cir.

DODD) cnccorcsvsccssescsnererscossensessescsesenseenseseasonesnsensens 8

Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41

(E9BT) .ncccccosersesssorcsesssessvsenessoosesssonsaversscassonsersess 13

Pratt v. Delta Airlines, Inc., 675 F. Supp. 991 (D.

WEE FED ciceseenisccsevarenersnesnierevnonsensousneneonnnutsooys= 15

Rogers v. Lodge, 458 U.S. 613 (1982)... 12

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

COUP. TID dscevicessevcenenccnosecenswnesevitoversdisemennesnnneans 7,9

Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir.

TOG cccerenscesceressavssconessesensovsensvosncvossveateusbanancuses 9

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

(Oth Cir. 1987) ...........cccccccscrrrsssreccssrscssonssosees 9

United States v. Doe, 465 U.S. 605 (1984) ............ 12

United States v. Johnston, 268 U.S. 220 (1925) .... 12

STATUTES:

§10(b) of the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 1O(D) ......:eseeeeerreeeeeees 5

Table of Authorities Continued

§ 301 of the Labor Management Relations Act, 29

ls, IE esata eustee Liteialin cnaideaineane ts Nace 2

National Labor Relations Act, 29 U.S.C. § 141 et

TUE atisentbcsendapinsphasiacbeiaisosenshpimennnncdenindicicbnablennneds passim

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

No. 91-863

JANET BARBE

Petitioner,

VS.

THE GREAT ATLANTIC & PaciFIC TEA COMPANY, INC.

and

W. E. ZENTGRAF

Respondents.

On Petition For a Writ Of Certiorari To The United

States Court of Appeals For The Fourth Circuit

BRIEF OF RESPONDENTS, THE GREAT ATLANTIC &

PACIFIC TEA COMPANY, INC. AND W. E. ZENTGRAF,

IN OPPOSITION TO CERTIORARI

OPINION BELOW

The unreported opinion® of the United States Court

of Appeals For The Fourth Circuit is reprinted in

Appendix A to the petition at la-10a, cited herein as

‘“_a’”’. The opinion of the United States District

’ Under the Internal Operating Procedures of the Fourth Cir-

cuit, 1.0.P. Nos. 36.5 and 36.6, “{ujnpublished opinions are not

binding precedent in [the Fourth] circuit.”’

Court for the District of Maryland, which was af-

firmed by the United States Circuit Court of Appeals

for the Fourth Circuit, is reported at 722 F. Supp.

1257 (D. Md. 1989), reprinted in Appendix B to the

petition at 1b-17b, cited herein as ‘‘___b”’.

The applicable collective bargaining agreement was

part of the record in the courts below (Joint Appen-

dix, pp. 21-45). Relevant excerpts from that agree-

ment are reprinted in Appendix A to this Opposition,

cited hereafter as ‘“‘Resp. Opp. —_ a’.

JURISDICTION

The jurisdictionai requisites are adequately set forth

in the petition at p. 2.

STATUTES INVOLVED

The statute principally involved is § 301 of the La-

bor Management Relations Act, 29 U.S.C. § 185

(““§ 301’’), and is set forth in the petition at pp. 2-3.

The statute under which the case was removed to

federal court is set forth in the petition at p.3.

COUNTERSTATEMENT OF THE CASE

Petitioner Janet Barbe (“‘petitioner’’) seeks review

of the unpublished per curiam Opinion and Order of

the United States Court of Appeals for the Fourth

Circuit entered on July 26, 1991. That Order dis-

missed as preempted by § 301 the claims of defa-

mation and intentional infliction of emotional distress

made by petitioner under the common law of the state

of Maryland against respondents, The Great Atlantic

& Pacific Tea Company, Inc. (‘“‘A&P’’) and W.E. Zent-

graf, hereinafter sometimes jointly referred to as

“‘respondents’’. 2a, 10a.

Petitioner was employed by A&P as a bakery clerk

in 1984. 2a, 2b. She was represented for collective

bargaining purposes by Local 27 of the United Food

& Commercial Workers Union (‘‘union” or “Local

27’’), which had a collective bargaining contract (‘‘con-

tract” or “‘agreement’’) with A&P in effect from Sep-

tember 14, 1986 through September 16, 1989. The

contract recognized the union as the exclusive rep-

resentative of its bargaining unit employees, including

petitioner. Jd. Believing that petitioner had falsified

a worker’s compensation claim, A&P, through its per-

sonnel director Zentgraf, sent a letter to petitioner

dated April 7, 1987, notifying her that ‘“. .. effective

March 31, 1987, you are terminated for falsification

of [a] company document.”’ Jd. Copies of the letter

were forwarded to petitioner’s two supervisors and

to the union. Jd.

A&P sent the notice letter to the union pursuant

to various provisions in the contract which it believed

required such notice, although the contract contains

no explicit provision obliging such notice.‘ The notice

‘For example, section 5 of article 4 of the agreement stated:

The Employer agrees to advise the Union of ...all ter-

minations. .. on a monthly basis.”” Resp. Opp., —— a.

Section 8 of article 4 of the contract gave A&P “.. .the right

to discharge ... any employee for good cause, including ...

dishonesty’’, while Article 10 established a mandatory grievance

and arbitration procedure for resolution of disputes “... con-

cerning the interpretation of the provisions of th{[e] Agreement.”

Resp. Opp., —— a.

Section 2 of article 10 of the agreement provided:

“Upon receipt of notice [of a controversy, dispute

or disagreement as defined in section 1] from either

party, the representative of the Employer and the

letter was a statement of cause transmitted to the

union to make effective the mandatory and exclusive

grievance and arbitration procedures set forth in ar-

ticle 10 of the contract. 4a; 10b; 11b. After the union

invoked the contract’s grievance procedure, A&P im-

mediately rescinded the termination letter and gave

petitioner two (2) successive six (6) month leaves of

absence. 3a; 3b. Petitioner sought no further relief

under the contract. Id.

representative of the Union shall, within three (3) days,

Section 5 of article 10 of the agreement stated:

“All complaints must be filed, in writing, within

Finally, in the general preamble to the con “The Em-

ployer and the Union each represent that the purpose and intent

of this Agreement is to ...provide a channel through which

information and problems may be transmitted from one to the

other.”” Resp. Opp., —— a.

5

Petitioner filed suit in the Circuit Court of Mary-

land for Baltimore County, charging under the com-

mon law of the State of Maryland that the sending

of the termination notice letter to the union was de-

famatory and intentionally inflicted emotional distress

upon her. 3a; 2b.° Respondents removed the case to

the United States District Court for the District of

Maryland and asked for dismissal on the ground of

total federal preemption by § 301. Petitioner opposed

and asked that the case be remanded to state court.

3a; 3b, 4b.

After setting forth each of the elements of the

claims under Maryland law, the district court found

that resolution of at least two (2) necessary elements

of the tort of defamation, i.e., publication and priv-

ilege, would draw the court into interpreting impor-

tant rights and obligations of notice to the union

pursuant to the labor contract. 13b. The court also

held that disposition of the claim of intentional infl-

iction of emotional distress required the determination

whether A&P, in sending the notice letter to the

union, was engaging in a permissible exercise of its

rights and duties under the labor contract. 14b. For

these reasons, the court found these claims preempted

by § 301. Under § 301, petitioner had to exhaust the

exclusive grievance and arbitration procedures of the

collective bargaining agreement and to file her claims

within the applicable six month limitation period es-

tablished by § 10(b) of the National Labor Relations

Act (“NLRA”), 29 U.S.C. § 10(b). Since petitioner

* Petitioner conceded that the letter was properly sent to her

two (2) supervisors and that such communication was privileged.

2b

6

failed to do so, the district court granted summary

judgment to respondents. 15b-16b.

Petitioner appealed to the United States Circuit

Court of Appeals for the Fourth Circuit. 2a. Based

upon the analysis for determining § 301 preemption

set forth in McCormick v. AT&T, 934 F.2d 531 (4th

Cir., May 28, 1991) (en banc), the court affirmed the

dismissal. 5a. As to the defamation claim, the court

found that whether the sending of the termination

notice to the union constituted publication, or was

privileged, depended on whether the contract “...

authorized, or perhaps even anticipated, such a no-

tice.”’ 4a. Similarly, to resolve the claim of intentional

infliction of emotional distress, the court would have

to decide whether A&P’s transmission of the notice

was in compliance with the contract. 4a. For these

reasons, the claims were preempted by § 301, and

dismissed as untimely. 3a.

REASONS FOR DENYING THE WRIT

Summary of Argument

Petitioner has raised no issues of sufficient impor-

tance to justify review of the decisions below under

Rule 10 of the Rules of this Court or other authority.

Her challenge instead is directed to the application

by the courts below of well-established precedent to

the particular facts of the case at hand, a palpably

insufficient basis to invoke the discretionary jurisdic-

tion of this Court. On the facts of this case, there is

no conflict among the circuits as to either the legal

standards applicable under § 301 to petitioner’s claims

or to their proper resoiution, nor is there any broad

federal question which this Court should address. The

differing results among the circuits in several cases

7

presenting generically similar tort claims have turned

on the individualized fact patterns presented in each

case and on the elements of the torts under state

law, not on the considerations erroneously identified

by petitioner. Those cases are not even remotely com-

parable to the case at bar. In this regard, in a case

whose fact pattern mirrors that in this case, the

United States Circuit Court of Appeais for the Ninth

Circuit, like the Fourth Circuit in this case, found

total preemption by § 301. See, e.g., Shane v. Grey-

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

The decisions by the courts below were quite clearly

correct in that they considered carefully and applied

faithfully the teachings which have emerged from this

Court in recent precedent construing the scope and

reach of § 301 preemption. The decision of the Fourth

Circuit, moreover, was in the form of an unpublished’

per curiam decision which, for that reason, is of dis-

tinctly limited precedental effect. Finally, the com-

munication at issue was absolutely privileged under

federal law.

For all these reasons, the dismissal of petitioner’s

common law claims should not be reviewed by this

Court.

* 1.0.P. 36.6 of the Internal Operating Procedures of the United

States Court of Appeals for the Fourth Circuit provides:

“In the absence of unusual circumstances, this court

will not cite an unpublished disposition in any of its

tion of this court’s unpublished disposition in briefs

and oral arguments in this court and in the district

courts within this circuit is disfavored. . .”

I. As Applied to the Fact Pattern of this Case, There

is No Conflict Among the Circuits Regarding the

Preemptive Effect of § 301

Given the unique set of facts presented here, none

of the circuit court precedent relied upon by petitioner

supports her claim for review. Rather, these cases

simply attest to the efforts of these several courts to

apply to the particular facts in the cases before them

the legal standards developed by this Court in Lingle

v. Norge Division of Magic Chef, Inc., 486 U.S. 399

(1988), and other cases decided by this Court con-

struing § 301. Since ‘such decisions always turn on

consistent legal standards applied to widely disparate

fact situations, it is unsurprising that different facts

have led to different outcomes. In no manner does

that suggest, as petitioner argues, that any of these

circuits, if presented with the facts of this case, would

decide this case differently from the courts below.

Each of the cases in the survey of the law of the

circuits conducted by petitioner (pet., pp. 10-20) is

easily distinguishable on its facts from this case.’ That

’ Krashna v. Oliver Realty Inc., 895 F.2d 111 (8rd Cir. 1990)

involved a claim of intentional infliction of emotional distress by

a garage attendant represented by a union who claimed he was

wrongfully discharged after filing a workers compensation claim.

Although the court held the claim not to be preempted by § 301,

there was no suggestion, as there is in this case, that the em-

ployer’s conduct was mandated by the labor contract.

In O’Shea v. The Detroit News, 887,F.2d 683 (6th Cir. 1989),

the claim of intentional infliction of emotional distress was based

on the employer’s transfer of a unionized older-employee to the

night shift pursuant to discretion given it under the labor con-

tract. The transfer was not made pursuant to any contractual

requirement.

Keehr v. Consolidated Freightways of Delaware, Inc., 825

survey also shows that no hard and fast inter- or

intra-circuit rules can be said to apply to the dispo-

sitions in each case. For example, separate panels in

each of the sixth, seventh and ninth circuits’ have

found both for and against preemption by § 301 of

claims of defamation and/or intentional infliction of

emotional distress, with the variance in results due

in each instance to the different facts in each case.

The case most analogous to this case is one not

cited by petitioner, Shane v. Greyhound Lines, Inc.,

868 F.2d 1057 (9th Cir. 1989). There, discharged em-

ployees brought claims under state law, inter alia,

F.2d 133 (7th Cir. 1987) presented claims of defamation and

intentional infliction of emotional distress which arose from abu-

sive remarks to a union member by a supervisor, conduct “. . .not

even arguably sanctioned by the labor contract.” Id., at 138. To

the same effect is Tillez v. Pacific Gas & Electric Co., 817 F.2d

536, 539 (9th Cir. 1987). And, see also, Jackson v. Southern

California Co., 8817 F.2d 638 (9th Cir. 1989) where the inten-

tional infliction “of emotional distress claim was held to be

preempted but the defamation claim was not because the cir-

cularization of an alleged defamatory letter to twelve (12) em-

ployees was not required by the labor contract. Here, in direct

contrast, respondents contend that the conduct complained of,

i.€., notice to the union, was necessary because of the agree-

ment.

*Compare Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th

Cir. 1989) (no preemption by § 301) with Knafel v. Pepsi-Cola

Bottlers of Akron, Inc., 850 F.2d 1155 (6th Cir. 1988) (preemp-

tion by §301). Compare also, Keehr v. Consolidated Freightways

of Delaware, Inc. (no preemption) supra, with Douglas v. Infor-

mation Technologies, 877 F.2d 565, 572 (7th Cir. 1989) (preemp-

tion); compare also Jackson v. Southern California Gas Co., supra,

(no preemption) with Tillez v. Pacific Gas & Electric Co., supra,

Chmiel v. Beverly Wilshire Hotel Company, 873 F.2d 1283 (9th

Cir. 1989) (preemption) and Hyles v. Mensing, 849 F.2d 1213

(9th Cir. 1988) (preemption).

10

for defamation and intentional infliction of emotional

distress based on discharge notices which cited the

destruction of company property and harassment of

other workers as the reason. The claims were held

preempted by § 301 both because the notices were

required by the labor contract and because the claims

amounted to complaints about the administration of

discipline under the labor contract. In other words,

on comparable facts, the ninth circuit (which has ruled

both for and against preemption by § 301 of state law

tort claims, see f.n. 9, 10, supra), like the courts

below, found preemption by § 301.

The conflict among the circuits sought to be man-

ufactured by petitioner is, therefore, a fiction because

petitioner cites no truly apposite authority. Petitioner

is also flatly wrong in arguing that “...the courts

cannot decide whether preemption under § 301 should

be based on the plaintiff’s reliance on the collective

bargaining agreement for its state law claim, or the

defendant’s reliance on the collective bargaining

agreement for its defense.’’ (pet., p. 8). To our knowl-

edge, no circuit court—certainly not the courts be-

low—has relied on such a simplistic and manifestly

incorrect formulation. Instead, in line with the teach-

ings of this Court, these courts have simply recog-

nized that the preemptive effect of § 301 can be

‘““...80 ‘extraordinary’ that it ‘converts an ordinary

state common law complaint into one stating a federal

claim for purpose of the well-pleaded complaint rule.’’’

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987),

quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S.

58, 65 (1987). Preemption by § 301 has such a ‘‘con-

verting effect’—and becomes complete preemption as

opposed to defensive preemption - when resolution of

=

the claim requires interpretation of the labor contract.

It is this latter inquiry to which the various circuit

courts have directed their attention and which has

produced different outcomes under § 301. It is also

the reason why the courts below found total preemp-

tion of petitioner’s claims in this case. 4a, 5a; 13b,

14b.

II. Because the Decisions of the Courts Below Turned

on Facts Unique to this Case, the Discretionary Re-

view Jurisdiction of this Court Should Not be Ex-

ercised

This case, far from being ‘‘garden variety’’ (pet.,

p. i) in nature, springs directly from obligations of

notice rooted in the contract. Petitioner’s claims of

common law torts in this case depend entirely on

whether the labor contract did, or did not, require

notice to the union of the petitioner’s termination and

the reasons therefor. That mixed question of fact and

law is the central issue upon which resolution of each

of petitioner’s common law tort claims depend. It is

perforce a federal question because, to answer it, the

courts below had to assess the record facts and in-

terpret the contract. Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985); Lingle v. Norge Div. of Magic

Chef, Inc., supra.

Petitioner does not and cannot quarrel with the

well-established legal principles identified by the

courts below which guided their application of § 301

but simply challenges their application to the partic-

ular facts in this case. It is not the function of

certiorari, however, to give a disappointed litigant

another chance at appellate review. Magnum Import

Company, Inc. v. Coty; 262 U.S. 159, 163 (1923). Nor

is it the practice of this Court to grant review to

12

review evidence and discuss specific facts. United

States v. Johnston, 268 U.S. 220, 227 (1925). Inas-

much as the decisions of the courts below turned upon

their determination that the labor contract had to be

interpreted in light of its various provisions (see, f.n.

4, supra) to decide whether singly or together they

required notice to the union, this case is not an ap-

propriate vehicle for review by this Court.’

III. The Decisions by the Courts Below Were Clearly

Correct

In this case, acting pursuant to custom and practice

and its own understanding of its obligations under

the contract, A&P advised the union of petitioner’s

termination and the reasons therefor. A&P did so to

comply with various parts of the contract which ar-

guably require such notice so that the union could

fulfill its representational function. 3a; 4a; 2b; 10b;

f.n. 4. Indeed, A&P’s failure to do so might well have

given rise to liability for circumventing the bargaining

representative of the employees in violation of the

National Labor Relations Act, 29 U.S.C. § 141 et segq.,

or may have resulted in an untimely grievance, to

the detriment of petitioner’s interests. 12b. Petitioner

® Indeed, ‘‘a court of law, such as this Court is, rather than

a court for correction of errors in fact finding, cannot undertake

to review concurrent findings of fact by two courts below in

the absence of a very obvious and exceptional show of error.”

Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271,

275 (1949); Berenvi v. Immigration Director, 385 U.S. 630, 635

(1967); Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980); Rogers

v. Lodge, 458 U.S. 613, 623 (1982); United States v. Doe, 465

U.S. 605 (1984); NCAA v. Board of Regents, 468 U.S. 85, 98

n.15 (1984).

13

charged nonetheless that the very act of notice to the

union subjected A&P to common law tort liability.

§ 301 grants to federal courts jurisdiction over

‘“{sjuits for violations of contracts between an em-

ployer and a labor organization representing employ-

ees in an industry affecting commerce. ...”.!° § 301

preempts all state law claims for violation of rights

under a collective bargaining agreement, and extends

to tort suits brought under state law when “... res-

olution of a state law claim is substantially dependent

uponanalysis of the terms of an agreement made be-

tween the parties in a labor contract.” Allis-Chalmers

Corp. v. Lueck, supra at 211 (1985); see also, Fran-

chise Tax Board of California v. Construction Labor-

ers Vacation Trust, 463 U.S. 1, 23 (1983).

In disposing of petitioner’s claim, the courts below

applied the fundamental principle announced by this

Court that “‘.. .state law is preempted by § 301 only

if such application requires the interpretation of a

collective bargaining agreement. Lingle v. Norge Div.

of Magic Chef, Inc., supra at —_ .4a; 7b, 8b. In ap-

plying Lingle, the courts below correctly recognized

that there is simply no way to resolve such claims

except by reaching into the labor contract to deter-

‘© This Court has held expressly that “[t]he preemptive force

of § 301 is so powerful as to displace entirely any state cause

of action’’ within its scope. Franchise Tax Board v. Construction

Laborers Vacation Trust, 463 U.S. 1, 23 (1983). A tort action

brought nominally under state law is, when preempted by § 301,

““federalized”’—i.e., ‘‘any civil complaint raising this select group

of claims is necessarily federal in character,” Metropolitan Life

Insurance Co. v. Taylor, 481 U.S. 58, 63 (1987), and “{a]ny such

suit is purely a creature of federal law.’’ Pilot Life Insurance

Co. v. Dedeaux, 481 U.S. 41, 56 (1987).

14

mine the nature and extent of A&P’s obligation to

notify the union concerning the discharge of an em-

ployee whom it represents, and what, if any, privilege

attaches to such a communication. 4a; 12b.

This is evident from the analyses of the courts be-

low which, as a first step, identified each of the con-

stituent elements of the state tort claims. In

Maryland, for example, defamation consists of proof

of (1) publication of a false and defamatory commu-

nication (2) with knowledge of or reckless disregard

of its defamatory character (3) which caused damage.

Metromedia Inc. v. Hillman, 285 Md. 161, 172 (1979);

Jacron Sales Co. v. Sindorf, 276 Md. 580, 596-97

(1976); 4a, 9b. Given the nature of petitioner’s claim,

the court would have to decide whether notice to the

union constituted publication under Maryland law, 1.e.,

whether the agreement “...authorized, or perhaps

even anticipated, the sending of such a notice.” 4a.

As the district court noted:

‘‘Were the Court to rule that the defamation

claim was independently resolvable, it would

necessarily be concluding A&P had no duty

to notify the union and would necessarily be

making an interpretation of the collective

bargaining agreement contrary to the posi-

tion taken by the employer. It would be mak-

ing a determination as to whether the

preliminary steps of adjustment and arbitra-

tion as described in the collective bargaining

agreement imply a notice requirement and

whether the custom of the parties is to be

inferred as part of the collective bargaining

agreement.” 12b.

15

On the other hand, if the court determined that notice

to the union was necessary under the agreement, that

decision would, in effect, negate petitioner’s claim that

there was a publication under state law. In either

event, the question cannot be decided outside the ex-

press provisions and implied contours of the agree-

ment.!?

Related to these considerations, A&P claimed the

communication to the union was privileged. See, e.g.

Pratt v. Delta Airlines, Inc., 675 F. Supp. 991, 997

(D. Md.1987); 4a, 9b. To rule on this privilege ques-

tion, the courts below held, an assessment of the rel-

ative interests of A&P, Local 27 and petitioner with

respect to notification of termination of a bargaining

unit employee would have to be made in light both

of the rights and obligations of the parties under the

labor contract, and of the strong policy favoring fed-

eral uniformity. 4a; 12b; 13b; see Allis-Chalmers, su-

pra at 211. . |

The constituent elements in Maryland of the tort

of intentional infliction of emotional distress are (1)

intentional or reckless conduct (2) that is extreme or

outrageous (3) and which caused severe emotional dis-

tress. Harris v. Jones, 281 Md. 560, 566 (1977); 4a;

13b. As found by the courts below, the question

whether A&P’s conduct was “‘reckless’’, extreme’’, or

“outrageous” requires an assessment of whether

A&P, in sending the termination notice, was simply

‘1 In this connection, the court must consider implied contract

rights and implied obligations of notice which may be involved

for ‘‘[t]he assumption that the labor contract creates no implied

rights is not one that state law may make.” Allis-Chalmers v.

Lueck, supra at 215 (1985).

16

exercising its termination rights in a permissible way

under the contract. Jd. As the district court noted,

“Tijf A&P complied with and satisfied the terms of

the agreement, then [petitioner] would be hard pressed

to urge that the conduct was outrageous.” 13b-14b.

The courts below thus faithfully adhered to the

principles announced by this Court in Lingle and its

progeny, and reached the same result as reached by

other circuit courts on comparable facts. See, e.g.,

Shane v. Greyhound Lines, Inc., supra, and Hyles v.

Mensing, supra. For that additional reason, there is

no basis for review of petitioner’s claims.

IV. A&P’s Letter of Notification to the Union is Un-

qualifiedly Privileged

Statements made in the effort to obtain a peaceable

disposition of a grievance have been held to be priv-

ileged unqualifiedly under federal common law. Gen-

eral Motors Corporation v. Mendicki, 367 F.2d 66, 70

(10th Cir. 1966). This privilege has been applied to

the discharge letter required by the collective bar-

gaining agreement as well. Hasten v. Phillips-

Petroleum Co., 640 F.2d 274, 279 (10th Cir. 1981);

Hyles v. Mensing, supra.

Federal courts have recognized an unqualified priv-

ilege for statements made during the entire proceed-

ing contemplated by the labor contract for the

grievance machinery, including the employer’s noti-

fication to the union of its actions. Green v. Hughes

Aircraft Co., 680 F.Supp. 423, 427-28 (S.D. Cal. 1985)

(statements to union privileged and nonactionable as

defamatory torts). There is an overriding federal labor

policy to encourage, facilitate and effectuate the set-

tlement of issues between employers and employees

17

which supports this absolute privilege. Brooks v. Sol-

omon, 542 F.Supp. 1229, 1253 (N.D. Ala. 1982).

For the independent reason that the communication

at issue is privileged under federal common law, the

decisions below should not be reviewed by this Court.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

PETER F. HEALEY, JR.

SCHNADER, HARRISON,SEGAL & LEWIS

1111-19th Street, N.W.

Suite 1000

Washington, D.C. 20036

(202) 463-2962

Attorneys for Respondents,

The Great Atlantic & Pacific

Tea Company, Inc. and

William E. Zentgraf

Of Counsel:

MARY ELLEN B. OFFER, ESQUIRE

The Great Atlantic & Pacific

Tea Company, Inc.

Two Paragon Drive

Montvale, New Jersey 07645