Ezekiel v. Jones Motor Co., Inc.

• Decision Date: 15 February 1978
• Citation: 372 N.E.2d 1281,374 Mass. 382
• Parties: , 85 Lab.Cas. P 55,164 James V. EZEKIEL, Jr. v. JONES MOTOR CO., INC., et al. Supreme Judicial Court of Massachusetts, Norfolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1281

372 N.E.2d 1281

374 Mass. 382, 85 Lab.Cas. P 55,164

James V. EZEKIEL, Jr. v. JONES MOTOR CO., INC., et al. Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 5, 1977.

Decided Feb. 15, 1978.

Gerard F. Lane, Quincy, for plaintiff.

Charles W. O'Brien, Boston (Philander S. Ratzkoff, Boston, with him), for defendants.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The plaintiff commenced an action against both defendants in the Superior Court seeking recovery for damages caused by an allegedly slanderous statement made by the defendant Dennis Lauber, an employee of the defendant Jones Motor Co. Inc. (Jones). ¹ The statements in issue were made by Lauber during his appearance before a joint management-union grievance board. The jury returned verdicts for the plaintiff against each defendant in the amount of $43,120. ² Thereafter, the trial judge, on motion of the defendants, entered judgments for the defendants notwithstanding the verdict on the specific ground that the alleged slanderous statements were made in circumstances of an absolute and unqualified privilege. ³ The parties appealed to the Appeals Court and we transferred the case here sua sponte.

The plaintiff's appeal challenges the judge's granting of the motion for judgment notwithstanding the verdict. The defendants' cross appeal seeks a review of portions of the judge's charge to the jury and certain evidentiary rulings. For the reasons stated, we reverse.

There was evidence of the following facts. The plaintiff was employed by Jones as a freight-handler and truck driver at its Braintree terminal from about 1966 to December 29, 1969. During the two-year period prior to December, 1969, the plaintiff missed several months of work due to injuries sustained in industrial accidents. The plaintiff testified that shortly after he returned to work in September, 1969, Jones's terminal manager, Howard Neill, and its regional manager, Robert Drake, said, in substance, that Jones was now a self-insurer and was going to get rid of people like the plaintiff who were costing the company too much money.

On December 29, 1969, shortly after 3 A.M. the Braintree police stopped the plaintiff for speeding as he was driving his car from the Jones terminal. The police discovered in the plaintiff's car a fishing rod and reel, which came from a shipment handled by Jones. The plaintiff denied taking the items and said that he had no idea who placed them in his car. Jones discharged the plaintiff on December 31 as a result of the incident.

The collective bargaining agreement between Jones and the union of which the plaintiff was a member provides a procedure for the adjustment of employee grievances. An employee may appeal his discharge or suspension to the New England Joint Area Committee, a six-member management-union grievance board. When the board, by a majority vote, settles a dispute, such decision is final and binding on both parties.

The plaintiff appealed his discharge to this board. On December 16, 1970, at a hearing held by the grievance board to review the plaintiff's case, the defendant Lauber, an employee of Jones, made an unsworn statement which was allegedly slanderous. According to the plaintiff, Lauber stated that "he was out in the yard checking trucks and watching the building as per his orders and he saw James Ezekiel (the plaintiff) steal a rod and reel from Jones Motors and place it in his car." The claim of the plaintiff is, of course, that this statement was not only slanderous but false.

1. Absolute Privilege.

The question presented on the plaintiff's appeal is whether a defamatory statement made by a witness at a hearing conducted by a joint management-union grievance board is absolutely privileged.

An absolute or unqualified privilege provides a complete defense to slander and libel suits, immunizing the defendant from all liability even if the defamatory statement is uttered maliciously or in bad faith. Aborn v. Lipson, 357 Mass. 71, 73, 256 N.E.2d 442 (1970). With a qualified or conditional privilege, a defendant is protected unless he abuses the privilege. See Retailers Commercial Agency, Inc., petitioner, 342 Mass. 515, 520-522, 174 N.E.2d 376 (1961); Galvin v. New York, N. H. & H. R. R., 341 Mass. 293, 297, 168 N.E.2d 262 (1960).

Generally, the recognition of an absolute privilege in defamation cases is limited to cases in which public policy or the administration of justice requires complete immunity from the threat of defamation suits. As we noted in Vigoda v. Barton, 348 Mass. 478, 484, 204 N.E.2d 441 (1965), this court has traditionally restricted the absolute privilege to comparatively few cases. See Sheppard v. Bryant, 191 Mass. 591, 78 N.E. 394 (1906) (legislative committee); Laing v. Mitten, 185 Mass. 233, 70 N.E. 128 (1904) (judicial proceeding). We have extended the qualified privilege to a greater variety of situations. See, e. g., Hutchinson v. New England Tel. & Tel. Co., 350 Mass. 188, 214 N.E.2d 57 (1966) (communication to police in course of investigation of crime); Retailers Commercial Agency, Inc., petitioner, supra (reports made by mercantile agency to interested subscriber); Sheehan v. Tobin, 326 Mass. 185, 93 N.E.2d 524 (1950) (report of board meeting of labor union); Christopher v. Akin, 214 Mass. 332, 101 N.E. 971 (1913) (defendant's statement made in good faith in his immediate interest and for purpose of protecting that interest).

We hold that in this situation, where the defendants had a duty to communicate to the grievance board the reasons for terminating the plaintiff's employment, they enjoyed a qualified privilege in revealing the grounds for such termination. This in accordance with the commonly held view that the privilege attaching to communications made in the course of grievance or arbitration proceedings under collective bargaining agreements is a conditional one. Polk v. Missouri Pac. R.R., 156 Ark. 84, 245 S.W. 186 (1922). Henthorn v. Western Md. R.R., 226 Md. 499, 174 A.2d 175 (1961). Jorgensen v. Pennsylvania R.R., 25 N.J. 541, 138 A.2d 24 (1958). Bird v. Meadow Gold Prods. Corp., 60 Misc.2d 212, 302 N.Y.S.2d 701 (1969). True v. Southern Ry., 159 S.C. 454, 157 S.E. 618 (1930). See Annot., 60 A.L.R.3d 1041, 1052 (1974).

The defendants contend, however, that the grievance proceedings are actually quasi-judicial in nature, and thus the absolute privilege should apply. The defendants enumerate several judicial-like procedures which were employed here: each party had an opportunity to present evidence to the committee, the plaintiff was present and represented by the union business agent, and the board's decision was final and binding. According to the defendants, if the grievance adjustment proceedings are to serve fully their intended function of private resolution of labor grievances, witnesses must be free to speak without fear of incurring civil liability. They support their argument with reliance on Neece v. Kantu, 84 N.M. 700, 507 P.2d 447 (1973). In that case the Court of Appeals of New Mexico held that the quasi-judicial nature of a grievance proceeding arising under a collective bargaining agreement made the absolute privilege applicable. Id. at 706.

We are not persuaded by the court's rationale in Neece. While a witness at a judicial proceeding is free to make defamatory statements without fear of being sued by the defamed person, the witness is nevertheless subject to the control of the judge. If he or she gives false testimony, prosecution for perjury or punishment for contempt may be forthcoming. See 1 F. Harper & F. James, Torts § 5.22 (1956). Such protections against false testimony simply do not exist at a labor grievance hearing such as the one which took place here. A witness at a grievance hearing need not give sworn testimony, nor is he subject to the control of a judge to limit his testimony to competent, relevant and material evidence. A conditional privilege provides sufficient incentive for the witness to speak openly, but does not remove the safeguards against communications which are deliberately false.

Relying on General Motors Corp. v. Mendicki, 367 F.2d 66 (10th Cir. 1966), the defendants suggest another rationale for recognizing an absolute privilege for witnesses at a management-union grievance hearing national labor policy. In General Motors Corp. v. Mendicki, the Tenth Circuit Court of Appeals held that statements made at a grievance proceeding must be unqualifiedly privileged so as to prevent impairment of the national labor policy. The court described this labor policy as one which encouraged, facilitated, and effectuated the settlement of issues between the employers and employees through the processes of conference and collective bargaining in order to promote industrial peace. According to the court in Mendicki, the threat of defamation actions would inhibit frank discussion by the representatives of employer and employee at such conferences and create irritations between employer and employee, thereby frustrating the congressional intent, expressed in the National Labor Relations Act (29 U.S.C. § 151 et seq. (1970)) to encourage peaceful settlement of labor disputes. Mendicki, supra at 70-71.

We prefer the approach taken in Bird v. Meadow Gold Prods. Corp., supra, where the New York court rejected the Mendicki rationale and held that allegedly defamatory statements were qualifiedly privileged when made at a conference pursuant to a collective bargaining agreement. The court found no congressional legislation specifically governing defamatory actions predicated on statements made during a labor grievance proceeding nor prohibiting a State court from regulating conduct in a manner consistent with national labor policies. Id. at 215.

The recent Supreme Court decision in Farmer v. United Bhd. of Carpenters & Joiners Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), yields...