Oil, Chemical and Atomic Workers Intern. Union v. Sinclair Oil Corp.

Decision Date22 December 1987
Docket NumberNo. 86-239,86-239
Parties128 L.R.R.M. (BNA) 2709 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, John E. Foley, and Joseph M. Misbrener, Appellants (Plaintiffs), v. SINCLAIR OIL CORPORATION, a Wyoming and Delaware corporation, Earl Holding, individually and as Director and Officer of Sinclair Oil Corporation, J.R. McIntire, individually and as Refinery Manager and employee of Sinclair Oil Corporation, and John Doe(s), whether singular or plural, that individual or those individuals who participated in the republishing of the defamatory statement, Appellees (Defendants).
CourtWyoming Supreme Court

Richard Rideout, of Freudenthal, Salzburg, Bonds & Rideout, Cheyenne, and Donald J. Mares, of Law Office of John W. McKendree, Denver, Colo., for appellants, argument by McKendree.

Glenn Parker and James Applegate, of Hirst & Applegate, Cheyenne, and Dan S. Bushnell, of Kirton, McConkie & Bushnell, Salt Lake City, Utah, for appellees, argument by Messrs. Applegate and Bushnell.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT, and MACY, JJ.

CARDINE, Justice.

The stakes were high. The union, OCAW, and Sinclair Oil Corporation were locked in a contest for votes of Sinclair employees in a union decertification election. As expected, each party was commendably zealous in free and open debate presenting their respective positions. A letter, critical of the union and its officers, written by a former employee of OCAW, was circulated among Sinclair employees. OCAW lost the election. An action for damages, claimed to result from defamation by the letter, was brought against Earl Holding and other officers and representatives of Sinclair. OCAW and its officers lost the lawsuit by summary judgment. They now appeal to this court, raising the following issues: (1) whether the trial court erred in applying a subjective definition of actual malice and an evidentiary standard of convincing clarity; (2) whether the trial court erred in refusing to strike a supplemental memorandum and appendix filed by appellees in support of their motion for summary judgment; (3) whether the trial court erred in ruling that questions propounded to certain witnesses sought information which was protected by the attorney-client privilege; (4) whether the trial court erred in granting appellees' motion for summary judgment because of the existence of credibility issues; (5) whether factual issues existed which precluded summary judgment; (6) whether the trial court improperly relied upon incompetent testimony of appellants Misbrener and Foley; and (7) whether the trial court erred in concluding as a matter of law that significant portions of the alleged defamatory letter constituted protected opinion.

We affirm.

FACTS

The present controversy concerns events surrounding a 1984 union decertification election held at the Sinclair Oil Corporation refinery in Sinclair, Wyoming. Prior to the election, Local 2-269 of the Oil, Chemical and Atomic Workers Union (OCAW) was the exclusive bargaining agent for employees at the Sinclair Refinery. Appellant Oil Chemical and Atomic Workers International Union (OCAWIU) is the international union with which the local union was affiliated.

From 1972 to 1983, Dorothy Palacios was employed by OCAWIU as an international representative. Early in 1983, appellant John "Jack" Foley, her supervisor, asked her to conduct research in the southern California area to obtain information which might be helpful to the union in negotiations with the Sinclair Refinery. Specifically, the union sought information concerning the Sinclair corporation, refinery owner Robert Earl Holding, and other businesses in which Holding had an interest.

In accordance with her instructions, Ms. Palacios traveled to San Diego and conducted a search of public records. She also visited the Westgate Hotel in San Diego, an enterprise owned by appellee Holding or one of his entities. While at the hotel, she happened to meet Mr. Holding and spoke with him briefly. Ms. Palacios then prepared a report on her investigation and submitted it to appellant Joseph M. Misbrener, who at that time was the vice president of the union.

In August of 1983, Ms. Palacios filed a harassment grievance against OCAW. In September, she was terminated as an employee of OCAWIU. Following her termination, she filed an unfair labor practice charge with the National Labor Relations Board (NLRB) and a discrimination complaint with the Equal Employment Opportunity Commission. Ms. Palacios then contacted appellee Holding and apologized for conducting the 1983 investigation. She also asked him for assistance in finding counsel to represent her in her grievances against the union. In a letter to Mr. Holding dated January 10, 1984, she made the following statements:

"It is difficult for me to ask for help, but I find it now necessary as I have discovered that it is indeed not simple to find the proper attorney to take such a case. * * * It is, though, with the thought that you, too, should benefit and that, perhaps, aspects of the case will surface which may be of help to you in your association with that organization and I would have it understood with the attorney that any material that arose would be available to you and not submerged by the usual fiduciary attorney/client relationship."

In response to this letter, Ms. Palacios received a call from Daniel Gruender, an attorney whose firm represented Sinclair Oil and several of Holding's entities. Ms. Palacios was aware that Mr. Gruender's firm represented Sinclair. Mr. Gruender eventually agreed to represent Ms. Palacios in her grievance against OCAWIU. At the same time, he and his firm were involved in the proceedings at the Sinclair Refinery.

Ms. Palacios learned from Mr. Gruender that a decertification election was to be held at the Sinclair Refinery in April of 1984. The purpose of the election was to allow the union members to determine whether OCAW should be decertified as the bargaining agent for the refinery employees. Ms. Palacios then authored the following letter addressed to the OCAW-represented employees of the Sinclair Refinery:

"It has come to my attention that you are preparing for an election on April 26, 1984. There are some facts you should know.

"For nearly 12 years, I had been an International Representative for OCAW; I wish that I could praise the union, but, sadly, I cannot. Having experienced, personally, flagrant violation of my rights by OCAW as a union member; as a professional employee of OCAW; as a dues payer to an OCAW Local (also, the Staff Union, IRCU); and as a USA citizen, I was obligated to file a discrimination/harassment grievance against the OCAW Administration which so angered them that I was terminated from my employment one month later. For public record, both EEOC and NLRB charges have been filed against OCAW. This, of course, is my personal problem. The subject of serious concern to you follows:

"One of the assignments I was given as an International Representative for OCAW was to research records and background of your employer, Robert Earl Holding. This assignment came to me from Joe Misbrener, now International President of OCAW, through his Assistant, Dean Alexander, to District 1 Director Jack Foley. Foley told me (quote verbatim) ... 'Dig up all the dirt you can find on this guy. Joe needs to get something on him ... they're having some trouble with Sinclair.'

"I found this 'assignment' distasteful, insulting and offensive since I considered myself a qualified organizer and not a vulgar spy for those who must ply their trade by trashy, unethical practices ... nor did I aspire to be a 'digger of dirt.' However, I admit that I rationalized that, after all, I was accepting my salary and was obliged to carry out the assignment as instructed by my employer. I performed the investigation with care and extreme diligence. Guess what?

"THE INVESTIGATION REVEALED ABSOLUTELY NOTHING EITHER BAD OR EVEN REMOTELY UNSAVORY ABOUT MR. HOLDING! TO THE

CONTRARY ... I FOUND ONLY VERY GOOD REPORTS ABOUT HIM!

"OCAW must have been displeased by this fact because I never had one word from any of them nor even one comment regarding the 12-page report I sent to Misbrener via certified mail. I received only the returned receipt showing proof of delivery.

"My investigation led to acquaintance with many of Mr. Holding's employees. When I, tactfully, led the conversation to the subject of the union, I was told by the employees that they were not sorry for having decertified the union two years earlier. Admittedly, I was surprised to hear this from the employees.

"They spoke of Mr. Holding and his family with warm enthusiasm and genuine sincerity. They assured me that Mr. Holding was a man of integrity whose word was as iron-clad, as binding, as any union contract!

"Neither could I find, though I searched, any employee who suffered any loss as a result of eliminating the union. That these employees so respected, even revered, their employer aroused my curiosity. They had made it very clear to me that they were not about to reorganize with the union ... to turn their backs on an employer who treated them well ... even after two years of having been without a union.

"Released from my employment by OCAW, I am now free of any obligation to remain silent about that investigation. I could not have addressed you as I am now doing while I was still on the union's payroll. Neither, ordinarily, would I voluntarily write to a group of employees about union assignments. In this case, however, I was part of an action intended, undeservedly, to malign your employer and I want to take part in clearing the record.

"That 'assignment' proved to be a turning point in my life and I was forced to reason ... not rationalize ... about this shabby, low affair of 'digging dirt' or 'throwing mud' to attempt to smear a gentleman of excellent character ... as verified by his own workers. Was this why I...

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