Wallulis v. Dymowski
| Decision Date | 10 May 1995 |
| Citation | 895 P.2d 315,134 Or.App. 219 |
| Parties | , 149 L.R.R.M. (BNA) 2615 Steven D. WALLULIS, Appellant--Cross-Respondent, v. Tom DYMOWSKI and Communications Workers of America, Local 7901, Respondents--Cross-Appellants. Tom DYMOWSKI and Communications Workers of America, Local 7901, Third-Party Plaintiffs--Cross-Appellants, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a New York corporation, Third-Party Defendant--Cross-Respondent. 9101-00424; CA A79806. |
| Court | Oregon Court of Appeals |
Richard C. Busse argued the cause for appellant--cross-respondent. With him on the briefs was Scott N. Hunt.
Robert K. Udziela argued the cause for respondents--cross-appellants and third-party plaintiffs--cross-appellants Communications Workers of America, Local 7901. With him on the briefs were Kevin Keaney and Pozzi, Wilson & Atchison. Also on the opening brief were Bernard Jolles and Jolles, Sokol & Bernstein, P.C. for respondent--cross-appellant and third-party plaintiff--cross-appellant Tom Dymowski.
[134 Or.App. 221-A] Jeffrey M. Batchelor argued the cause for third-party defendant--cross-respondent. With him on the brief were Christopher C. Brand and Lane Powell Spears Lubersky.
Before WARREN, P.J., and RICHARDSON, C.J., and EDMONDS, J.
In this action for defamation and intentional interference with economic relations, plaintiff appeals from a summary judgment. ORCP 47 C. Defendants cross-appeal from a judgment dismissing their claims for contribution and indemnity against third-party defendant American Telephone and Telegraph (AT & T) for failure to state a claim. 1 ORCP 21 A(8).
Plaintiff worked for AT & T as a supervisor. In 1989, he began working at an AT & T facility in Beaverton. Defendant Dymowski was the union steward of the crew that plaintiff managed at that facility and a vice president of Communications Workers of America Local 7901 (CWA). A few months after plaintiff began working there, Dymowski observed behaviors that led him to believe that plaintiff had an alcohol abuse problem. On several occasions, Dymowski noticed that plaintiff came to work late, was hard to contact during the day and looked like he had a hangover. Other crew members complained about plaintiff's behavior. In February 1990, Dymowski filed a grievance against plaintiff, which concerned plaintiff's order that Dymowski contact him before conducting union business while on the job. That same month, Dymowski had an altercation with plaintiff about an expense voucher. Dymowski called plaintiff's supervisor, Potter, and complained about plaintiff's conduct. Dymowski filed a second grievance. Management resolved both grievances.
Dymowski continued to receive complaints from others about plaintiff. In September 1990, AT & T required Dymowski to attend a training seminar. Before Dymowski attended the seminar, an employee who plaintiff had supervised at a different location, Booze, told Dymowski that plaintiff was a "substance abuser." Next, a crew member asked Dymowski to forward the crew's complaints about plaintiff's behavior to Potter. Dymowski agreed to tell Potter "all I know." At the training seminar, Dymowski told Potter that he had been getting complaints from the crew that plaintiff was hard to reach, arrived late to work and took long lunch breaks. He repeated Booze's allegation that plaintiff was a substance abuser. Potter's supervisor, Kastening, was standing nearby and heard the conversation. Later, Potter and Kastening called crew members for more information about plaintiff. In October 1990, AT & T removed plaintiff from his job. It offered him another job in California. Plaintiff declined.
Later, plaintiff brought this action, asserting claims for defamation and intentional interference with economic relations aainst Dymowski and CWA. CWA brought a third-party action for contribution and indemnity against AT & T. Plaintiff's defamation claim alleged that Dymowski's statements to Potter at the training seminar were "false and defamatory." The claim for intentional interference with economic relations alleged that defendants intentionally interfered with plaintiff's employment by making false statements about his purported substance abuse or, alternatively, because Dymowski had a personal vendetta against him. Defendants moved for summary judgment against plaintiff. AT & T moved to dismiss defendants' third-party complaint for failure to state a claim.
After the summary judgment hearing, the trial court granted plaintiff's motion to amend the complaint to add a second claim 2 for defamation, which alleged, in part:
"Dymowski knew that allegations of substance abuse about Plaintiff were false, or acted in reckless disregard for the truth or falsity of those allegations."
The trial court then granted defendants' motion for summary judgment, concluding that the conduct that formed the basis of plaintiff's first claim for defamation and the claim for intentional interference with economic relations was regulated by the National Labor Relations Act, 29 USC, section 151 et seq (NLRA), and that, therefore, it did not have jurisdiction to hear those claims. Next, it concluded that plaintiff's second claim for defamation presented no genuine issue of material fact. Finally, it granted AT & T's motion to dismiss. Plaintiff appeals the summary judgment and defendants cross-appeal the judgment dismissing their third-party complaint for failure to state a claim.
We discuss, first, plaintiff's assignments challenging the summary judgment for defendants. To prevail on its summary judgment motion, defendants must show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Seeborg v. General Motors Corporation, 284 Or. 695, 700-01, 588 P.2d 1100 (1978).
Plaintiff's first assignment asserts that the trial court erred in granting summary judgment on his first claim for defamation. The issue is whether the conduct that is the basis of liability, Dymowski's allegedly defamatory statement, is within the exclusive jurisdiction of the National Labor Relations Board (NLRB). The NLRA provides for the comprehensive regulation of labor-management relations and vests the NLRB with jurisdiction to resolve disputes involving the regulated conduct. Section 7 of the NLRA, 29 USC section 157, protects "concerted activities," including the right of employees to "assist labor organizations * * * for the purpose of mutual aid or protection." Section 8 of the NLRA, 29 USC section 158, prohibits unfair labor practices. In San Diego Unions v. Garmon, 359 U.S. 236, 242, 79 S.Ct. 773, 778, 3 L.Ed.2d 775 (1959), the Supreme Court discussed labor-management relations governed by those sections:
In other words, the NLRB has primary jurisdiction over labor disputes involving activities that are, or could even "arguably" be, protected or prohibited by sections 7 or 8. 359 U.S. at 245, 79 S.Ct. at 779-80.
Plaintiff correctly contends that, here, a predicate to NLRA preemption is that Dymowski's statements occurred during a "labor dispute." That term is broadly defined by the NLRA as:
"[A]ny controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." 29 USC § 152(9).
The heart of plaintiff's argument is that, in the context of a claim for defamation, the term "labor dispute" applies only to statements made during a union's organizational efforts. In support of that argument, plaintiff cites Lundgren v. Pawtucket Firefighters Ass'n, 595 A2d 808 (R.I.1991). We are not persuaded. In Lundgren, the plaintiffs were fire fighter battalion chiefs who brought a claim for defamation against a union. The union argued that the NLRA preempted the claim. The Rhode Island Supreme Court determined that the claim was not preempted, based solely on its conclusion that plaintiffs were not "employees" within the scope of the NLRA. 595 A2d at 815. See 29 USC § 152. Therefore, whether or not a labor dispute existed, as that term is defined by the NLRA, was irrelevant to the court's decision.
It is well settled that labor disputes may exist in circumstances that do not involve organizing activities by a union. See, e.g., Jacksonville Bulk Terminals v. Longshoremen, 457 U.S. 702, 711-14, 102 S.Ct. 2672, 2679-81, 73 L.Ed.2d 327 (1982); Railway Labor Exec. Ass'n v. Wheeling & Lake Erie Ry., 914 F.2d 53, 55 (4th Cir.1990); Aarco v. Baynes, 391 Mass. 560, 563 n. 3, 462 N.E.2d 1107 (1984). That is equally so in claims based on a union's alleged defamatory statements about management. Beverly Hills Foodland, Inc. v. Union, 39 F.3d 191, 194-95 (8th Cir.1994).
Here, the uncontradicted evidence is that Dymowski made the allegedly defamatory statement in the context of telling Potter, plaintiff's supervisor, about complaints he had received from his crew concerning plaintiff's work-related conduct and how it affected work conditions. Under those circumstances, and considering the broad statutory definition, we conclude that the allegedly defamatory statement occurred during a labor dispute as a matter of law. 3 Id. at 195; Hasbrouck v. Sheet Metal Workers 232, 586 F.2d 691, 694 n. 3 (9th Cir.1978). Plaintiff's remaining arguments about the issue of whether a labor dispute existed do not require discussion. 4
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Wallulis v. Dymowski
...such a statement is actionable and that an agent of the union simultaneously can be the agent of the employer. Wallulis v. Dymowski, 134 Or.App. 219, 233, 895 P.2d 315 (1995). We affirm the decision of the Court of The trial court granted defendants' motion for summary judgment, ORCP 47, 1 ......
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Gest v. Oregon AFL–CIO
...relations and vests the NLRB with jurisdiction to resolve disputes involving the regulated conduct.” Wallulis v. Dymowski, 134 Or.App. 219, 224, 895 P.2d 315 (1995), aff'd, 323 Or. 337, 918 P.2d 755 (1996). Section 7 of the NLRA confers various rights on employees, including the right “to e......
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Wallulis v. Dymowski
...v. Dymowski; Dymowski v. American Telephone and Telegraph Company NOS. A79806, S42604 Supreme Court of Oregon Nov 21, 1995 134 Or.App. 219, 895 P.2d 315 ...