Meuser v. Rocky Mountain Hosp.

• Decision Date: 29 March 1984
• Docket Number: No. 83CA0357,83CA0357
• Citation: 685 P.2d 776
• Parties: 121 L.R.R.M. (BNA) 3314 Virginia T. MEUSER, Plaintiff-Appellant, v. ROCKY MOUNTAIN HOSPITAL, a Colorado corporation, and Robert H. Pierce, Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 776

685 P.2d 776

121 L.R.R.M. (BNA) 3314

Virginia T. MEUSER, Plaintiff-Appellant, v. ROCKY MOUNTAIN HOSPITAL, a Colorado corporation, and Robert H. Pierce, Defendants-Appellees.

No. 83CA0357.

Colorado Court of Appeals Div. II.

March 29, 1984.

Rehearing Denied April 26, 1984.

Certiorari Denied Aug. 7, 1984.

Louis A. Weltzer, David L. Worstell, Denver, for plaintiff-appellant.

Montgomery, Little, Young, Campbell & McGrew, P.C., William H. ReMine, III, Englewood, for defendants-appellees.

BABCOCK, Judge.

Plaintiff, Virginia T. Meuser (Meuser), appeals from the summary judgment entered in favor of defendants, Rocky Mountain Hospital (the hospital) and its administrator, Robert H. Pierce (Pierce), on her claim of intentional infliction of emotional distress by outrageous conduct and upon two claims for defamation. We affirm.

Meuser was a nurse employed by the hospital when a nurses' union was formed there in December 1979. In February 1980 she was elected treasurer of the hospital chapter of the union.

In September 1980 the union entered into contract negotiations with the hospital. Meuser was not on the negotiating team but at times she sat in on the bargaining sessions as an observer. The negotiations were proceeding slowly and with difficulty.

In September 1980 a conversation occurred between Meuser and a hospital pharmacist during which the subject of unions was discussed. According to Meuser, the pharmacist raised the subject by saying, "You know the unions do bad things," and related that a union member had slashed tires at another place of employment. He then asked, "You wouldn't do that to me?" and she responded, "I may, I might." The pharmacist testified that as Meuser was leaving the pharmacy she said something about slashing his tires to which he replied, "You've got to be kidding," and she answered, "Just try me."

Meuser testified that any reference to slashing tires was made in jest. The pharmacist testified that as he contemplated her remarks, he became concerned and therefore reported the incident to the head of the pharmacy who reported it to the director of nursing.

A written statement was taken from the pharmacist and was compiled by the hospital administration with other reports of union related incidents showing a suspected pattern of coercion of employees by union members. At the end of November 1980, as part of the hospital's objection to a collective bargaining election held that month, these incidents, including the remarks made by Meuser to the pharmacist, were reported to the National Labor Relations Board (NLRB) for investigation.

On December 30, 1980, Pierce wrote a letter to Meuser stating:

"This is to advise you that the hospital administration has become aware of alleged threats made by you relating to support of the union. This is currently under investigation. Such activity is considered to be serious misconduct which may result in disciplinary action."

Meuser considered the letter of December 30 to be a threat of dismissal. On December 31, 1980, Meuser replied to Pierce by letter denying the accusation and offering to meet with him and her union representative to discuss the matter.

By January 2, 1981, there was imminent possibility of a strike. Pierce, by letter to Meuser, declined to meet with her and her representative because he had been advised that it would be inappropriate to discuss the labor dispute with them.

On January 9, 1981, the union filed charges of unfair labor practices with the NLRB alleging generally that the hospital had engaged in a campaign of reprisals against employees including termination of employment. These charges were amended two months later to include the specific allegation that "on or about December 29, 1980 the hospital did harass and intimidate its employee, Virginia Meuser, because of her activities on behalf of the union."

Meuser went on sick leave on January 10, 1981, because of anxiety over what she considered to be a threat of termination in Pierce's letter of December 30. Thus, she did not attend the question and answer session held by Pierce for hospital employees a few days later addressing their concern about security. However, she did attend a union meeting shortly thereafter where a fellow union member related to her a statement purportedly made by Pierce at the earlier meeting. The gist of the statement was that the hospital "was going to build a fence around the parking lot to keep that nurse from carrying out her threats." Upon hearing this, Meuser became ill and consulted a physician.

On January 16, 1981, Pierce wrote Meuser a letter in which he stated that there was no intent of threat or reprimand, that she was considered a valuable employee, and that her job was not in jeopardy. The union went on strike on January 21, 1981. Meuser continued on sick leave until she resigned her position at the hospital in February 1981.

Upon the above undisputed facts, the trial court concluded as a matter of law that the National Labor Relations Act, 29 U.S.C. §§ 157 & 158, preempted Meuser's claims for outrageous conduct and defamation, and thus, it was without subject matter jurisdiction. We agree.

The general rule with regard to preemption in this area is set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) as follows:

"When it is clear or may fairly be assumed that the activities which a state purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the state free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law."

Thereafter, in Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), it was held that where a party to a labor dispute circulates false and defamatory statements during a union campaign, the state courts have jurisdiction to apply state remedies if the plaintiff pleads and proves that the statements were made with malice and resulted in injury. The court construed ...