Opinion
Civil No. 04-558-AA.
November 2, 2004
George P. Fisher, Attorney At Law, Portland, Oregon, Attorney for plaintiff.
Norman D. Malbin, Attorney At Law, Portland, Oregon Attorney for defendant.
OPINION AND ORDER
Defendant filed a motion for summary judgment asserting that plaintiff's claim for defamation is preempted as a matter of law by Section 301 of the National Labor Relations Act. That motion is granted.
STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56©). Substantive law on an issue determines the materiality of a fact. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of a dispute.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.
DISCUSSION
Plaintiff is a union affiliated electrician. During the relevant time period, Siemens Power Corporation (Siemens) was signatory to a collective bargaining agreement (CBA) with IBEW Local 48. During that time, Siemens contacted Local 48 and requested that electricians be dispatched to a jobsite. Plaintiff was one of the electricians dispatched by Local 48 to Siemens. Defendant was (and continues to be) an employee of Local 48. Defendant served as the Business Representative for Local 48 with one of his job responsibilities being the administration of the CBA for various contractors, including Siemens.
Plaintiff alleges that prior to his arrival as a job applicant to the Siemens' jobsite, the defendant "slanderously defamed the plaintiff to the company hiring agent, Mark Nadolny." Complaint, p. 1. Plaintiff further alleges that as a result of the defamation, plaintiff was not hired for the Siemens' job. Defendant has asserted an affirmative defense of qualified privilege.
The defendant moves for summary judgment on plaintiff's claim arguing that plaintiff's state tort claim for defamation is preempted because resolution of the claim is "inextricably intertwined with consideration of the terms of the labor contract." Defendant's Memo in Support of Summary Judgment, p. 1, citing Allis-Chalmers v. Lueck, 471 U.S. 202, 213 (1985).
Section 301 of the Labor Management Relations Act states:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.29 U.S.C. § 185(a).
The Supreme Court holds that Section 301 preempts state law claims that are based on CBAs. Spreewell v. Golden State Warriors, 231 F.3d 520, 529 (9th Cir. 2000) (citingAllis-Chalmers, 471 U.S. 202, 210). A state law claim is preeempted only when its resolution requires an interpretation of the CBA. Spreewell, 231 F.3d at 529 (internal citation omitted).
Regarding a state law claim for defamation, "preemption also exists when `the interpretation of the CBA is made necessary by an employer defense.'" Kofoed v. Rosendin Electric, 157 F.Supp.2d 1152, 1156 (D. Or. 2001) (quoting Spreewell, 231 F.3d at 529). The defendant's Fourth Affirmative Defense states that defendant was subject to a qualified privilege when he spoke with a representative of Siemens. In Oregon a statement is conditionally privileged if: (1) it was made to protect the interests of defendants; (2) it was made to protect the interests of plaintiff's employer; or (3) it was on a subject of mutual concern to defendant and the person to whom the statement was made. Wattenberg v. United Medical Laboratories, 269 Or. 377, 380, 525 P.2d 113 (1974).
Defendant argues that this court would be required to construe various provisions of the CBA between Siemens and Local 48 in order to determine whether defendant's statement was made to protect his own or his employer's interest; whether it was made to protect the interests of plaintiff's (potential) employer, Mark Nadolny (hiring agent for Siemens) or Siemens; or whether the statement concerned a subject of mutual concern. I agree and find that plaintiff's defamation claim is preempted on the basis that the CBA will need to be construed to determine if defendant had a qualified privilege to make the allegedly defamatory statement to the employer representative. Some of the provisions of the CBA that could be relevant to such a determination include: Article 5.01.01 — Referral Procedure ("in the interest of maintaining an efficient system of production in the Industry [and] providing for an orderly procedure of referral of applicants for employment"); Article 5.03.01 ("[t]he employer shall have the right to reject any applicant for employment"); Article 2.10.01 ("[t]he Union understands the employer is responsible to perform the work required by the owner. The employer shall therefore have no restrictions, except those specifically provided for in the collective bargaining agreement in planning, directing and controlling the operation of all his work, in deciding the number and kind of employees to properly perform the work, in hiring and laying off employees"); and "Basic Principles — All parties to and covered by this Agreement have a common and sympathetic interest in the Electrical Industry. Therefore, a working system and harmonious relations are necessary to improve the relationship between all parties aforementioned and the Public. Progress in industry demands a mutuality of confidence between all parties to and covered by the Agreement. All benefit by continuous peace and by adjusting any differences by rational common sense methods."
Therefore, I find that plaintiff's defamation claim is preempted on the basis that the CBA will need to be construed to determine if the defendant had a qualified privilege to make the statement at issue. Plaintiff's claim is converted into a claim under Section 301 of the National Labor Relations Act.
CONCLUSION
Defendant's motion for summary judgment (doc. 21) is granted. Plaintiff's motion for remand to state court (doc. 33) is denied as moot. The parties' request for oral argument is denied as unnecessary. Finally, this case is dismissed and all pending motions are denied as moot.
IT IS SO ORDERED.