Nelson v. Lapeyrouse Grain Corp.
| Decision Date | 30 September 1988 |
| Parties | 130 L.R.R.M. (BNA) 2292, 115 Lab.Cas. P 56,234, 5 IER Cases 1812 Jerry NELSON v. LAPEYROUSE GRAIN CORPORATION, et al. 87-161. |
| Court | Alabama Supreme Court |
Robert M. Alton, Jr., Montgomery, for appellant.
Caine O'Rear III, of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
Jerry Nelson appeals from a summary judgment in favor of the defendants, Lapeyrouse Grain Corporation, George Brothers, Noah Jacobs, and P.J. Hanson, in a defamation action. We affirm in part, reverse in part, and remand.
Summary judgment is proper if there is no genuine issue of material fact as to any element of the affirmative defense of privilege or if there is no evidence tending to establish each element of defamation, and the moving party is entitled to a judgment as a matter of law. Rule 56 A.R.Civ.P. In determining whether summary judgment is proper, we must review the record in the light most favorable to plaintiff Nelson, the non-moving party, and resolve all reasonable doubts against the moving parties, the defendants. Webster v. Byrd, 494 So.2d 31 (Ala.1986).
Lapeyrouse Grain Corporation ("Lapeyrouse"), which is engaged in the business of purchasing grain from farmers and then reselling it to processors or users, owns and operates a grain elevator in Mobile, Alabama. George Brothers is the president of Lapeyrouse. Noah Jacobs is an employee of Lapeyrouse and Nelson's immediate supervisor. Hanson is also an employee of Lapeyrouse. Nelson was employed by Lapeyrouse as a weigher. A weigher is responsible for weighing and unloading incoming trucks containing grain and recording the weight on a ticket.
A purchase transaction between a seller and Lapeyrouse, as the buyer, follows a regular pattern. First, the seller hauls his grain by truck to Lapeyrouse's grain elevator. Second, the weigher determines the weight of the grain by subtracting the tare weight of the truck from its gross weight. The weigher calculates the gross weight by driving the seller's truck containing grain onto a platform with scales and recording its weight on a ticket. Next, the weigher unloads the truck and weighs it a second time. The weight of the empty truck is the tare weight. The weigher records the tare weight on the ticket and calculates the difference between the gross weight and the tare weight. Third, the seller presents the ticket, which constitutes a bill of sale, to Lapeyrouse for payment.
In 1982, while performing an inventory check, Lapeyrouse discovered that the quantity of grain it had stored in its grain elevator was substantially less than the quantity of grain its records indicated that it had purchased. To ascertain the cause of the shortage, Lapeyrouse conducted an investigation. On several consecutive nights when Nelson was the weigher on duty, two Lapeyrouse employees, Jacobs and Hanson, "staked out" the grain elevator. Jacobs and Hanson observed Nelson allowing sellers to drive their loaded trucks over Lapeyrouse's scales without dumping their grain and then filling out tickets with fabricated weights as if grain had been dumped. After Lapeyrouse completed its surveillance of the grain elevator, it confronted employees it suspected of complicity in the theft scheme. On December 10, 1982, Brothers and B.C. Hall, a vice president of Lapeyrouse, met with Nelson at Lapeyrouse's office, in the presence of a polygraph test operator, to discuss the issue of the stolen grain. During the meeting, Brothers accused Nelson of stealing the grain. Nelson denied the accusation. Later that day, Brothers discharged Nelson. Brothers also met with John Taylor, a Lapeyrouse employee who unloaded grain. Taylor stated in an affidavit that, one week prior to Nelson's discharge, in the presence of a polygraph test operator, Brothers asked him if he "knew anything about Jerry stealing grain." Taylor replied by stating that he did not "see how Jerry could be stealing grain." At that point, according to Taylor, Brothers informed him that Nelson had been caught stealing grain.
Subsequent to his discharge, Nelson filed a grievance against Lapeyrouse pursuant to a collective bargaining agreement ("the agreement") between his union (the International Organization of Masters, Mates and Pilots (IOMM & P)), and Lapeyrouse. The agreement, in pertinent part, provides:
At the hearing, the arbitrator heard testimony from several witnesses, including Brothers, Jacobs, and Hanson. Jacobs and Hanson testified as to what they had observed during the stakeout, which had the effect of implicating Nelson. After hearing all the evidence and after considering the arguments propounded by the union and by Lapeyrouse, the arbitrator rendered an opinion in which he held that Lapeyrouse had just cause to terminate Nelson. The arbitrator predicated his decision on evidence that tended to show that, at least on one occasion, November 8, Nelson took part in perpetrating a theft against Lapeyrouse. Specifically, the arbitrator determined that Lapeyrouse had proven by a preponderance of the evidence that on the night of November 8, 1982, Nelson was in charge of weighing and unloading trucks at Lapeyrouse's grain elevator and that a truck containing grain entered the elevator to be weighed and unloaded but, instead, left loaded and that, with Nelson's knowledge and supervision, a weight ticket was recorded with a false weight and presented to Lapeyrouse for payment.
On September 14, 1983, Nelson brought an action for slander against the defendants, seeking compensatory and punitive damages. Nelson alleged in his complaint and now argues on appeal that the following oral statements constituted slander: 1) Brothers's accusation that he committed a theft, in the presence of B.C. Hall and the polygraph test operator; 2) statements made during the grievance hearing; 3) Brothers's statement to John Taylor, a co-employee of Nelson, in the presence of a polygraph test operator, one week prior to his termination, that "Nelson had been caught stealing grain"; and 4) Jacobs's statement to Leo Bolar, a customer of Lapeyrouse, that "Jerry will not be with us long because Jerry was stealing grain."
The defendants filed an answer in which they set forth the defenses of privilege, truth, federal preemption, and an absence of publication. After several depositions had been taken and after affidavits had been filed, the trial court granted the defendants' motion for summary judgment, and Nelson appeals.
The defendants argue that Nelson's slander claim is preempted by federal labor law. We disagree. In view of the United States Supreme Court's most recent pronouncement on the preemptive scope of § 301 of the Labor Management Relations Act 1 in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), we hold that Nelson's defamation claim is independent of the agreement and is thus actionable under state law. The United States Supreme Court vacated Reynolds Metals Co. v. Mays, 516 So.2d 517 (Ala.1987), and remanded that case for reconsideration in light of Lingle. Therefore, Reynolds does not stand as a precedent for this case.
In Lingle, an employer discharged an employee for filing a false worker's compensation claim. Rather than seeking redress under a collective bargaining agreement that provided employees with a contractual remedy for discharge without just cause, the employee instituted a state tort action for retaliatory discharge against her employer. The Court of Appeals found the state tort remedy to be preempted by § 301.
In reversing this decision, the Court stated:
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