Brooks v. Solomon Co.

• Decision Date: 29 June 1982
• Docket Number: Civ. A. No. CV81-PT-1367-S.
• Citation: 542 F. Supp. 1229
• Parties: Essie Mae BROOKS, Plaintiff, v. The SOLOMON COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

542 F. Supp. 1229

Essie Mae BROOKS, Plaintiff, v. The SOLOMON COMPANY, et al., Defendants.

Civ. A. No. CV81-PT-1367-S.

United States District Court, N. D. Alabama, S. D.

June 29, 1982.

O. William Adams, III, Birmingham, Ala., for plaintiff.

Stanley A. Cash, Huie, Fernambucq & Stewart by Stanley A. Cash, Birmingham, Ala., for defendants.

MEMORANDUM OPINION

PROPST, District Judge.

This cause is before the court upon plaintiff's Motion to Remand the above entitled action to the Circuit Court of Jefferson County, Alabama, filed May 20, 1982, and upon defendants' Motion for Summary Judgment filed May 4, 1982. This action was originally filed in the Circuit Court of Jefferson County on September 23, 1980, by the plaintiff against her employer, The Solomon Company, and against Allen Solomon, an officer of the defendant company. Plaintiff's complaint claimed damages for "false, wrongful, and malicious statements made by defendant, Allen Solomon." The statements were alleged to have been made on or about July 23, 1980, while plaintiff was in the employ of the defendant, The Solomon Company. Allen Solomon was alleged to have uttered the slanderous remarks while acting as one of plaintiff's employers, and while acting as agent or servant of the defendant company. Plaintiff claimed that the statements were made in the presence of other employees and were conveyed to other employees by Allen Solomon. On November 10, 1980, the defendants answered plaintiff's complaint by asserting, inter alia, the defenses of privilege and qualified privilege. On September 2, 1981, over eleven months after the filing of plaintiff's complaint, the defendants filed a Petition for Removal of this action to the United States District Court asserting as grounds that the plaintiff's allegations concerning false statements allegedly made by defendant were made, if at all, during the course of a grievance committee proceeding involving management and union representatives being conducted pursuant to and in accordance with the National Labor Relations Act. Defendants' petition avers that plaintiff and defendants were participating in a management union grievance process pertaining to plaintiff's work related complaint when the statements were allegedly made by defendant, Allen Solomon. It is the defendants' position that the matters involved in this action are matters over which there is an overriding federal policy pursuant to 29 U.S.C. § 171 et seq., which requires the exclusive application of federal law and further that the statements allegedly made were an integral part of the bargaining process being carried on in an effort to adjust the plaintiff's grievance, thereby giving this court jurisdiction in accordance with the aforementioned statutes and 28 U.S.C. § 1331. Plaintiff's Motion to Remand asserts that both defendants were served on October 23, 1980 and should be denied as untimely under 28 U.S.C. § 1446(b) because the petition was not filed within thirty days of service of the initial pleading. Defendants' response to plaintiff's basis for remand is that the Petition for Removal is timely pursuant to the second paragraph of 28 U.S.C. § 1446(b). This provision states:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant through service or otherwise, of a copy of an amended pleading, motion order or other paper from which it may first be ascertained that the case is one which is or has become removable. (emphasis added)

Defendants argue that it was not until plaintiff's deposition was taken on August 7, 1981 that the defendants learned that the alleged statements for which plaintiff is seeking damages were uttered during a grievance proceeding conducted pursuant to a collective bargaining agreement. Thus, defendants aver that the petition to remove was timely filed as it was filed within thirty days from an "other paper;" the "other paper" being plaintiff's August 7 deposition. The court has required an affidavit from defendants which has satisfied the court that defendants' original assertion of privilege was not based on the type privilege now asserted.

The court has determined that the Petition for Removal was timely filed. On its face, the initial pleading filed in this action does not appear to be removable. It merely alleges a cause of action based upon common law libel. A fair reading of the complaint would not adequately place the defendants on notice that a potential federal question or labor issue was involved. Several courts have held that discovery depositions taken under state law constitute an "other paper" within the meaning of that term as it is used in 28 U.S.C. § 1446(b). See Fuqua v. Gulf, Colorado and Sante Fe Railway Company, 206 F.Supp. 814 (E.D. Okl.1962); Gilardi v. Atchison, Topeka and Sante Fe Railway Company, 189 F.Supp. 82 (N.D.Ill,1960). Moreover, this court has concluded that the matter in question is one over which there is an overriding federal policy which requires the application of federal law to the issues presented.¹See Honaker v. Fla. Power & Light Co., 95 LRRM 3268 (M.D.Fla.1977). It is an established principle that where the nature of the claim asserted in the complaint is federal, the suit may be removed, irrespective of whether it is so characterized by the plaintiff in his complaint. See 1A Moore's Federal Practice ¶ 0.160, pp. 185-86 (2nd ed. 1982). Here, although the complaint on its face pleads no cause of action under federal law, plaintiff's deposition clearly elucidates that the complained of statements took place during the course of a management-union grievance proceeding. Where a question of federal status may be involved, a federal court may look beyond the complaint to the background of the plaintiff's claim to determine whether federal question jurisdiction exists. See 1A Moore's Federal Practice ¶ 0.160, p. 186 (2nd ed. 1974), and La Chemise Lacoste v. Alligator Company, 313 F.Supp. 915 (D.Del.1970). Plaintiff's Motion to Remand is due to be denied.

Turning to defendants' Motion for Summary Judgment, the court notes that defendants' primary ground for summary judgment is the defense of absolute privilege as that defense was applied by the United States Court of Appeals, Tenth Circuit, in General Motors Corp. v. Mendicki, 367 F.2d 66 (10th Cir. 1966). In that case the court emphatically stated:

It is our conclusion that statements made either by representatives of management or by representatives of an employee at a conference and bargaining session having for its purpose the adjustment of a grievance of the employee or other disposition of such grievance are unqualifiedly privileged.

367 F.2d 66, at 70 (emphasis added).

The Mendicki employment of absolute privilege has been applied by federal courts in other more recent cases to statements made in grievance proceedings. In the case of Hasten v. Phillips Petroleum Co., 640 F.2d 274, at 279 (10th Cir. 1981), the court explained:

We remain convinced that the reasoning in Mendicki is sound, namely that damage suits predicated on statements made in the grievance procedures would tend to interfere with frank and strong statements of positions in such proceedings.

See also, Breest v. Perrin, 495 F.Supp. 287 (D.N.H.1980), aff'd, 655 F.2d 1 (1st Cir. 1981), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 597 (1981); and Honaker v. Fla. Power & Light Co., supra. Although Mendicki does not specifically discuss the question of federal question or jurisdiction, the court does say:

The declared policy of the national legislation on labor relations is to encourage, facilitate and effectuate the settlement of issues between employers and employees through the "processes of conference and collective bargaining between employers and representatives of their employees," in order to promote and preserve industrial peace. (61 Stat. 152, 29 U.S.C.A. § 171.)

In Local 174 Teamsters, Chauffeurs, Warehousemen, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, the court pointed out the importance of a single body of substantive law in the area embracing the adjustment of issues between employers and their employees by the peaceful process of conference and collective bargaining, and further said:

"* * * The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy."

If the representatives of either employer or employee were subject to an action for damages because of statements made of what they claimed to be the pertinent facts respecting a controversy under consideration and of their position respecting such matter and the reasons therefor, at a conference or collective bargaining session being held to adjust such controversy, the likelihood of the attainment of peaceful adjustments or dispositions of the issues involved between them through the conference or bargaining processes would be greatly decreased.

The court, in Linn v. United Plant Guard Workers of America, 383 U.S. 53, 62, 86 S.Ct. 657 662, 15 L.Ed.2d 582 recognized it was the Congressional intent that full, frank, uninhibited, robust, and wide-open debate between the representatives of the employer and employee in such conferences and bargaining sessions should be encouraged.

367 F.2d at 70-71 (emphasis added).

Applying the Mendicki and Hasten cases to the suit at bar, the first question to be considered must be: were the alleged slanderous statements made during a conference or session having for its purpose the adjustment of a grievance or other peaceful disposition of such grievance? For its answer, the court must initially look to the collective bargaining agreement.²

The agreement...