FINDINGS AND RECOMMENDATION

THOMAS COFFIN, Magistrate Judge

BACKGROUND

Plaintiff was employed at the West Salem (Oregon) Safeway store as a night crew manager. Although he worked as the night crew manager, his official position within Safeway was as a checker. He was a member of the United Food Commercial Workers Union, Local 555 ("the union"), and was covered bya collective bargaining agreement ("CBA") negotiated between Safeway and the union.

In late October 2000, Safeway terminated plaintiff's employment, alleging that he had stolen from the company by knowingly purchasing several cans of chili which had been electronically mismarked and which were ringing up at a substantial, unintended discount. Through his union representative, plaintiff filed a grievance contesting his termination, as provided for by the CBA.

On September 5, 2001, an arbitrator conducted an arbitration of the contested termination, and on November 27, 2001, the arbitrator issued an opinion and order finding that plaintiff had acted as charged by Safeway, and that sanctions against him were appropriate, but that termination was excessive. He ordered Safeway to reinstate plaintiff to his previous position without back pay, noting that if his previous position was not available, Safeway "shall have the discretion to place [him] in [a] position that [is] commensurate with [his] abilities, experience, and seniority." The arbitrator, following the stipulation of the parties, retained jurisdiction over the matter for sixty days after the issuance of the order, "to resolve any disputes arising out of the implementation of this Order."

On December 13, 2001, plaintiff's union representative sent Safeway a letter describing a disagreement between the parties regarding the implementation of the arbitrator's order. It referenced a telephone conversation in which Safeway's representative allegedly indicated that plaintiff would not be offered his previous position back and would only be allowed to work when management was present, which would limit his available hours. The letter indicated that if the matter was not resolved satisfactorily, the union would remand the matter back to the arbitrator. The letter also noted that plaintiff wanted to transfer to a Eugene (Oregon) Safeway, but would work at the West Salem Safeway if necessary.

On December 21, 2001, Safeway's representative replied to the December 13 letter, and reiterated that plaintiff would not be offered his previous position back, as it had "been filled by [a] qualified honest individual." The letter said that Safeway would offer plaintiff his job as a checker back, but that, "given [his] lack of honesty and loyalty", he would not be permitted to work in an unsupervised environment. While not specifically indicating the number of hours that would allow plaintiff to work, the letter noted that under the CBA no employee is guaranteed any number of hours and that Safeway was neither required nor obligated to ensure that plaintiff received a particular number of hours. This letter was sent to plaintiff's union representative, the West Salem store manager, the company's division president, the retail operations manager, the human resources director, the district manager, and the attorney who had represented Safeway in the arbitration proceedings.

Plaintiff had no objection to returning to the position of checker, as that was what his position classification had been when he was terminated. In late December 2001, he contacted the manager of the West Salem store and arranged to work the week of December 30, 2001. After he learned of the December 21 letter, however, he called the store manager and indicated he would not be returning to work. He followed up that conversation with a letter reiterating his intention not to return, and on January 8, 2002, the union sent Safeway a letter confirming that plaintiff would no longer be working at the West Salem Safeway.

On December 23, 2002, plaintiff filed a complaint in Lane County Circuit Court which was subsequently removed to this court. In his amended complaint, plaintiff brings two claims: (1) a claim, brought under state law, alleging that the December 21, 2001 letter by Safeway's representative was defamatory; and (2) a claim to enforce the arbitrator's decision, brought under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a).

The court has previously ruled, on motions to dismiss his § 301 claims, that plaintiff did not fail to exhaust his available remedies and that he was not required to sue his union as a condition of maintaining an action against his employer. As is necessary on such motions, the court, in considering the viability of plaintiff's claims, assumed that all facts alleged by plaintiff in his complaint were true, and did not consider other evidence. Now that discovery has concluded, defendant seeks summary judgment in its favor on all claims, alleging that no reasonable factfinder could find facts which could sustain plaintiff's claims.

STANDARD OF REVIEW

A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c);Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9^th Cir. 1991). The moving party must carry the initial burden of proof. This burden is met through identifying those portions of the record which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgment motion. Id.

The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9^th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9^th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9^th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate.Sankovich v. Insurance Co. Of North America, 638 F.2d 136, 140 (9^th Cir. 1981).

Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). Where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587 (1986). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient."Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 248. However, trial courts should act with caution in granting summary judgment, and may deny summary judgment "in a case where there is reason to believe that the better course would be to proceed to a full trial." Anderson, 477 U.S. at 255.

DISCUSSION

I. Plaintiff's defamation claim

Plaintiff's defamation claim is based exclusively on the content of the December 21, 2001 letter, which was written by Steve Erdmann, Safeway's Director of Labor Relations, to plaintiff's union representative, and copied to the West Salem store manager, Safeway's division president, the retail operations manager, the human resources director, the district manager, and the attorney who had represented Safeway in the arbitration proceedings — all Safeway employees, except for Safeway's outside counsel who had represented it in the relevant underlying arbitration. Defendant argues that plaintiff's defamation claim must fail because the letter is subject to both an absolute and a qualified privilege, and all copies of the letter are subject to a qualified privilege.

Liability in a defamation case is premised on an unprivileged publication to a third party of false information that damages the plaintiff's reputation. Andreason v. Guard Publishing Co., 260 Or. 308, 310-312 (1971). Statements made in the course of or incident to a judicial, or quasijudicial, proceeding have an absolute privilege attach to them under Oregon law. See Franson v. Radich, 84 Or. App. 715, 719 (1987) (absolute privilege extends to "actions taken and statements made in connection with a judicial proceeding"). A statement made on a subject of mutual concern to the defendant and the person to whom the statement was made has a qualified privilege attach under Oregon law. Wattenburg v. United Medical Lab., 269 Or. 377, 380 (1974). A qualified privilege also attaches to statements made by a company representative to other employees of the company who share business interests in the company. Lund v. Arbonne International, Inc., 132 Or. App. 87, 95-96 (1994). To maintain a defamation action based on a statement subject to a qualified privilege, plaintiff must provide proof that defendant abused the privileged occasion. Bank of Oregon v. Independent News, 298 Or. 434 (1985).

An arbitration proceeding is a quasi-judicial proceeding for purposes of establishing an absolute privilege to a claim of defamation. See Hyles v. Mensing, 849 F.2d 1312, 1217 (9^th Cir. 1988); DeLong v. Yu Enterprises, Inc., 334 Or. 166, 171 (2002). Other courts, on roughly similar facts, have found that a termination notice and statements made by a defendant to union representatives during an ongoing grievance proceeding were subject to an absolute privilege as part of the quasi-judicial grievance machinery. The Tenth Circuit has noted that:

Considering the factors identified by the Supreme Court, we remain persuaded that federal labor law and policy require the absolute privilege rule as to communications made within the context of proceedings provided for by the collective bargaining agreement and its provisions for a grievance machinery. The Supreme Court has emphasized the fact that it is federal policy to promote industrial stabilization through collective bargaining agreements, that a major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in such agreements, and that arbitration of labor disputes under such agreements is "part and parcel of the collective bargaining process itself."

Clearly, the statements were not made during the proceeding or during the investigative phases of the process leading up to the proceeding, as has generally been the case in the published caselaw. Rather, the arbitration had already been conducted, and the arbitrator had issued his final order a month earlier. However, the letter at issue here was a direct extension of the arbitration; it was Safeway's position on implementation of the arbitrator's order. Indeed, the letter it was responding to, sent to Erdmann earlier in December, specifically noted that "we may have a disagreement on implementing the remedy portion of Arbitrator Lindauer's opinion and order" and that the union was willing to "remand the matter back to Arbitrator Lindauer in order to resolve this dispute." Erdmann's letter provided Safeway's interpretation of the order and explained what Safeway was willing to do to effectuate compliance with it. Given that the letter was (a) specifically dealing with the implementation of the arbitrator's order; (b) sent while the arbitrator retained jurisdiction to settle any disputed between the parties; and (c) was written with the understanding that the union was considering returning the matter to the arbitrator for resolution, I find that the letter was made in the context of the ongoing resolution of a grievance, using the grievance machinery provided for by the CBA, and as such is absolutely privileged from use in support of plaintiff's defamation claim.

I further find that, even assuming, arguendo, the absence of an absolute privilege, the letter would be subject to a qualified privilege. The content of the letter was a subject of mutual concern to defendants and the union representative, to wit, the implementation of arbitrator's reinstatement order. See Wattenburg, 269 Or. at 380 (1974). Plaintiff's primary argument against the qualified privilege bar is that defendants abused the privilege and therefore it cannot present a bar to suit. In support of this argument, plaintiff cites to Lund, supra, 132 Or. App. at 823, where the Oregon Court of Appeals noted that:

The privilege may be lost if the speaker does not believe that the statement is true or lacks reasonable grounds to believe that it is true; if it is published for a purpose other than that for which the particular privilege is given; if the publication is made to some person not reasonably believed to be necessary to accomplish the purpose; or if the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose.

However, I find that Erdmann's letter does not fall within any of these exceptions to the general rule. The language used by Erdmann is all either taken directly from the arbitrator's order or is a natural extension of it; the arbitrator did find that plaintiff had been dishonest and untruthful, and it is natural for the company to interpret these findings as suggesting disloyalty. Those findings and the company's position on them set the stage for the conditions Safeway was placing on plaintiff's return to work, and were therefore appropriate to include in the letter. Finally, the letter was sent explicitly to facilitate the necessary arrangements for plaintiff returning to work, and was sent only to individuals with a direct interest in the arbitration or in plaintiff's upcoming work schedule, all appropriate parties to the communication. Therefore, plaintiff's argument that qualified privilege articulated in Wattenburg was lost because of defendant's abuse of the privilege must fail. Erdmann's letter was subject to a qualified privilege that precludes its use as a basis for a defamation claim.

Because Erdmann's letter — which plaintiff concedes is the only basis for his defamation claim — is protected by both an absolute and a qualified privilege, defendant's motion for summary judgment on plaintiff's defamation claim should be granted.

II. Plaintiff's § 301 claim

On motions to dismiss, this court has previously ruled — based solely on the facts alleged in the complaint — that plaintiff had not failed to exhaust his available remedies, was not required to sue his union to maintain his cause of action, and had not filed the complaint after the expiration of the relevant statute of limitations. However, in its summary judgment motion, defendant seeks a reconsideration of those findings in light of the evidence developed in discovery.

A. Plaintiff's § 301 claim is a `hybrid' claim.

Ordinarily, a claim by an employee attempting to protect his rights under a collective bargaining agreement brought pursuant to § 301 is necessarily a `hybrid' claim: a claim brought against the employer, for violating the employee's rights, and a claim brought against the employee's union, for failing to adequately represent him. See, e.g., Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990), DelCostello v. Teamsters, 462 U.S. 151, 163-64 (1983); see also Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976) ("To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.").

On the mere face of the complaint, this case carried a decidedly different claim than most, however: rather than challenging a grievance that the union has failed to address, or challenging an unfavorable arbitration outcome, the complaint in this case alleged that plaintiff, through his union, had challenged his termination and obtained a successful arbitration award which Safeway had simply refused to comply with, and which it appeared the union could do nothing else about. Under these assumed facts, it was the court's position that would be absurd to require plaintiff to sue his union when it had secured a favorable award for him and had exhausted any remedies he had available under the CBA.

However, the picture that emerged after discovery had concluded — particularly after plaintiff's deposition was taken — now causes the court to reconsider whether that position is applicable to this case.

In his deposition, plaintiff testified that he had been offered reinstatement in the position of checker, which — although he had previously been assigned some supervisory duties as night crew manager — was the same official position he had held when he was terminated. He further testified that, as such, he had no objection to his reinstatement as a checker. His objection, rather, was that he was going to be offered fewer hours than he had typically had prior to his termination (the initial estimate for his first week was apparently 13 hours, compared with the 40 he had usually worked) — an issue that the arbitrator's order had not addressed.

After the number of hours plaintiff would receive became an issue, Cross' union representative sent a letter to Erdmann advising that if Cross did not receive the number of hours he had previously averaged, the Union would remand the matter back to the arbitrator. However, according to plaintiff, when he contacted the West Salem store manager, he was told that he would only receive 13 hours his first week and that no specific number of hours were guaranteed in future weeks. He initially accepted the 13-hour schedule for the first week, although he later informed the manager that he would not be returning to work. The union did not recommend that plaintiff return to the arbitrator to challenge the number of hours he was getting, advising plaintiff against it because it felt the arbitrator could change his mind and rescind his order reinstating plaintiff if they brought the issue up again. Rather, the union told plaintiff that the offer of reinstatement he had from Safeway was a good one, and that whether to accept it or not was his decision.

These facts, derived from plaintiff's own deposition, can support only two scenarios related to his § 301 claim: either (1) Safeway's offer to reinstate plaintiff was adequate under the arbitrator's order, and plaintiff's claim is without merit; or (2) Safeway's offer to reinstate plaintiff was inadequate due to its failure to provide plaintiff with the number of hours the arbitrator's order impliedly required, and the union failed to adequately represent plaintiff when it did not remand the issue back to the arbitrator for clarification. Interpreting the facts in the light most favorable to plaintiff, the court will assume that the offer was inadequate. However, even operating under that assumption, plaintiff's § 301 claim must fail for want of alleging inadequate representation.

Plaintiff walked away from the arbitration with an order of reinstatement that did not directly speak to a set number of hours defendant would be obligated to provide, but which required it to place defendant in a position "commensurate with [his] abilities, experience, and seniority." Defendant interpreted the order, in conjunction with the collective bargaining agreement, to require defendant to reinstate plaintiff with whatever hours were determined to be available. Plaintiff interpreted the order to mean that he was to have the same number of hours he had typically had prior to his termination. This sort of disagreement in interpretation is, no doubt, the very reason the arbitrator had retained jurisdiction to resolve disputes related to the implementation of the order, and one which the union should have brought back to him on plaintiff's behalf. Indeed, such responsibility is reflected in the union's initial letter to Safeway in which it threatens to remand the issue back to the arbitrator if Safeway refused to give plaintiff an acceptable number of hours. However, according to plaintiff, when the issue came to a head, the union told him it did not want to bring it back to the arbitrator and that Safeway's implementation offer was a good one. Because the union could have — but did not — bring the matter back to the arbitrator or otherwise act to secure plaintiff the employment conditions he believes were required under the arbitrator's order — and which form the basis for his § 301 claim — plaintiff cannot bring a claim against Safeway without an allegation of inadequate representation against his union as well. In other words, plaintiff's claim cannot be brought as straightforward § 301 claim against his employer, but must be brought as a "hybrid" § 301 claim. See, e.g., Chauffeurs, supra; DelCostello, supra.

At first blush, the most appropriate course of action would seem to be to allow plaintiff to amend his § 301 claim to include allegations of inadequate representation and thus cure the defect in his present complaint. However, it is apparent that such amendment would be futile. As a hybrid, plaintiff's § 301 claim would be subject to the strict six-month statute of limitations provided by Section 10(b) of the National Labor Relations Act.DelCostello, 462 U.S. at 169-70. As plaintiff filed this case on January 29, 2003 — over one year after the December 2001 interactions he had with Safeway and his union regarding their alleged refusal to abide by the arbitrator's order — the statute of limitations expired prior to his filing. Because plaintiff's § 301 claim must be brought as a hybrid, and the statute of limitations on hybrid claims expired well before plaintiff filed this case, defendant's motion for summary judgment on plaintiff's § 301 claim should be granted.

Even assuming, arguendo, that plaintiff's § 301 claim did allege a breach of the arbitrator's order for which he need not also allege inadequate representation by his union, an additional problem would prevent plaintiff from maintaining his action. Prior to bringing a district court action against an employer under § 301, an employee must exhaust any remedies provided for by an applicable collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 185-85 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652 (1965). Here, plaintiff failed to exhaust his remedies when he failed to bring the dispute over the number of hours he would receive upon reinstatement back to the arbitrator when the arbitrator specifically retained jurisdiction to deal with such concerns.

CONCLUSION