Viestenz v. Fleming Companies, Inc., 80-1559

• Decision Date: 22 June 1982
• Docket Number: No. 80-1559,80-1559
• Parties: 110 L.R.R.M. (BNA) 2935, 115 L.R.R.M. (BNA) 5147, 94 Lab.Cas. P 13,628 Burton VIESTENZ, Plaintiff-Appellee, v. FLEMING COMPANIES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 699

681 F.2d 699

110 L.R.R.M. (BNA) 2935, 115 L.R.R.M. (BNA) 5147,

94 Lab.Cas. P 13,628

Burton VIESTENZ, Plaintiff-Appellee, v. FLEMING COMPANIES, INC., Defendant-Appellant.

No. 80-1559.

United States Court of Appeals, Tenth Circuit.

June 22, 1982.

Ronald W. Fairchild, Topeka, Kan. (Charles D. McAtee, Topeka, Kan., with him on the briefs) of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for defendant-appellant.

Dan L. Wulz, Topeka, Kan. (Frederick J. Patton, II, of Jones, Schroer, Rice, Bryan & Lykins, Chartered, Topeka, Kan., on the brief), for plaintiff-appellee.

Before McWILLIAMS and McKAY, Circuit Judges, and BRIMMER, District Judge ^*.

McKAY, Circuit Judge.

Appellee Burton Viestenz, a resident of Missouri, was formerly employed at a Missouri supermarket owned by appellant Fleming Companies, Inc. (Fleming), a Kansas corporation. Based on reports that it had received, Fleming, in 1975, suspected that Mr. Viestenz had been stealing merchandise from the store on a regular basis. At that time, Sentinel Security Services, Inc. (Sentinel) was under contract to Fleming for the provision of investigative services. Sentinel is a corporate entity separate from Fleming which performs such services in many states for various clients, including Fleming.

In February 1975, at Fleming's request, a representative of Sentinel came to the supermarket where Mr. Viestenz worked to interview him concerning the theft charges. The interview lasted 25 or 30 minutes. Record, vol. 3, at 101. At the conclusion of the interview, Mr. Viestenz made a handwritten statement admitting his theft of merchandise from the store. In the statement itself, he acknowledged that he was giving the statement voluntarily, without threat or promise, and that he understood that he could consult with an attorney. Record, vol. 1, at 329.

The interview was conducted in an upstairs area of the store. Only Mr. Viestenz and Sentinel's representative were present, but Mr. Viestenz was aware that he was entitled to have a union representative present, and Mr. Viestenz was not restrained or otherwise compelled to participate in the interview. Record, vol. 3, at 110. Since Sentinel's representative died before Mr. Viestenz repudiated his statement and filed this action, we have only Mr. Viestenz' testimony as to what transpired at the interview. Mr. Viestenz testified that Sentinel's representative at times spoke loudly to him; at other times, he spoke softly. He did not threaten bodily harm. Record, vol. 3, at 61, 64. However he did engage in conduct which Mr. Viestenz characterized at trial as threatening. Specifically, he advised Mr. Viestenz of the charges and informed him that he could lose his job and be blackballed at the union if he did not admit the theft. He also stated that he could obtain a court order for a polygraph test if Mr. Viestenz would not cooperate. Record, vol. 3, at 104-05. After the interview, Mr. Viestenz returned to work. He made restitution to Fleming in the amount of the admitted theft, and he was discharged the following day after working part of his shift.

During the trial of this action, Mr. Viestenz testified that he was so scared after he had been fired that he was unable to sleep at night. He wondered where he was going to get money to buy groceries for his family. He hurt inside. His stomach rolled, his legs hurt, and he was so nervous that his heart was overworked. Record, vol. 3, at 76-77. He also testified that he had not been advised that he could consult with an attorney and that he gave the statement because he did not want to lose his job. Record, vol. 3, at 61-62.

Mr. Viestenz chose not to pursue the mandatory grievance procedure set forth in the collective bargaining agreement under which he worked. See Record, vol. 1, at 341-42. Subsequently, members of his union, Amalgamated Meat Cutters No. 576, went on strike to protest that Mr. Viestenz had been discharged, not because of theft, but because he previously had reported Fleming for violations of its union contract. A Missouri state court, noting that the collective bargaining agreement under which Mr. Viestenz worked provided a grievance procedure as the exclusive means for resolving his complaint, enjoined the strike. Record, vol. 1, at 141-45.

Seventeen months after the state court's order was issued, Mr. Viestenz brought this diversity action against Fleming in the United States District Court for the District of Kansas. His complaint set forth two causes of action-wrongful discharge and intentional infliction of emotional distress (the tort of outrage). He alleged that he was entitled to recover for loss of earnings and emotional suffering.

The federal district court did not permit Mr. Viestenz to pursue his wrongful discharge claim. To the extent that the claim was based on contract violation, its resolution was governed by the general rule that an aggrieved employee "must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). Nor did any exception to this rule apply: the procedure set forth in the agreement was exclusive, id. at 657-58, 85 S.Ct. at 618-619; Fleming's conduct did not constitute a repudiation of the contract's provisions, see Drake Bakeries Inc. v. Bakery Workers, 370 U.S. 254, 262-63, 82 S.Ct. 1346, 1351, 8 L.Ed.2d 474 (1962); there was no allegation that the union failed to represent Mr. Viestenz fairly, see Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); and Mr. Viestenz did not allege that his failure to avail himself of the grievance procedures was based on any unwillingness of Fleming to arbitrate the dispute. See Glover v. St. Louis-San Francisco Railway, 393 U.S. 324, 330-31, 89 S.Ct. 548, 551-552, 21 L.Ed.2d 519 (1969).

Only the collective bargaining agreement prevented Fleming from terminating Mr. Viestenz at will. Andrews v. Louisville & Nashville Railroad, 406 U.S. 320, 324, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972). Accordingly, any claim of wrongful discharge in violation of the agreement must be brought on the basis of the agreement. Id.

However, even an employee who is terminable at will may have a tort cause of action for wrongful discharge if a significant public interest is involved. Although Mr. Viestenz' claim that he was discharged because of his union activities involves such an interest, it is also an allegation of an unfair labor practice in violation of § 8(a) of the National Labor Relations Act, 29 U.S.C. § 158(a). Dayton Tire & Rubber Co. v. NLRB, 591 F.2d 566 (10th Cir. 1979). In this area, federal labor law preempts state law, and the jurisdiction of the National Labor Relations Board is exclusive. "When an activity is arguably subject to § 7 or § 8 of the (National Labor Relations) Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). This preemption doctrine is premised on Congress' desire to avoid conflicting rules of substantive law and remedy, thereby ensuring a consistent national labor policy. Id. at 242, 79 S.Ct. at 778.

We conclude that the federal district court correctly dismissed Mr. Viestenz' wrongful discharge claim, whether construed to sound in contract or in tort.

The district court, however, did permit Mr. Viestenz' action to proceed on his tort claim of outrage. A jury trial was held, and a verdict was returned in favor of Mr. Viestenz for $5000 actual damages and $50,000 punitive damages. Fleming filed a motion for judgment notwithstanding the verdict, a new trial, or, in the alternative, remittitur. The district court denied Fleming's motion for judgment n. o. v., but, noting that the award given by the jury was grossly excessive and not supported by the evidence, granted Fleming's motion for a new trial, unless Mr. Viestenz consented to a remittitur of $2500 actual damages and $25,000 punitive damages. Record, vol. 1, at 296. Mr. Viestenz accepted the reduced award, and an appropriate order was entered.

Fleming appeals from this final order of the district court, pursuant to 28 U.S.C. § 1291, and urges this court to reverse the judgment entered against it. ¹ Among the several grounds for reversal advanced by Fleming is that Mr. Viestenz actually has artfully characterized an unfair labor practice charge as a tort action for outrage and thus this claim, as well as his claim for wrongful discharge, is subject to the preemption doctrine stated in the Garmon rule. Fleming moved for dismissal on this ground, but the district court denied its motion. Record, vol. 1, at 176-79.

In denying Fleming's motion to dismiss, the district court relied upon an exception to the Garmon rule set forth in Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). In Farmer, a member and former officer of a union brought an action against the union, charging it with "outrageous conduct, threats, intimidation, and words" causing him "grievous mental and emotional distress as well as great physical damage." Id. at 301, 97 S.Ct. at 1064. This challenged conduct was part of a campaign of personal abuse and harassment, which included employment referral discrimination and was intended to punish him for complaints he made against the union local to higher union officials.

Although this conduct, occurring in the context of employment discrimination, might form the basis for an unfair labor practice charge, the Court held that the union member's claim of intentional infliction of emotional distress was not necessarily preempted by federal law, if the state had a substantial interest in regulating the challenged conduct, and its regulation did not threaten undue...