Carl Hakanson v. Boise, Inc , 435 F. App'x 648 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 03 2011
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
CARL HAKANSON, No. 10-35669
Plaintiff - Appellant, D.C. No. 6:10-cv-06094-HO
v.
MEMORANDUM *
BOISE, INC and ASSOCIATION OF
WESTERN PULP & PAPER WORKERS
ASSOCIATION, LOCAL ý396,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted May 2, 2011**
Portland, Oregon
Before: TASHIMA, BEA, and IKUTA, Circuit Judges.
Petitioner Carl Haµanson appeals the district court's dismissal of: 1) his
Oregon state tort claims for wrongful discharge and intentional infliction of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
emotional distress (IIED) against his former employer, Boise Inc., and 2) his
Oregon state tort claims for defamation and IIED against his former labor union,
Western Pulp & Paper Worµers Local 396 (Union). Haµanson contends the district
court erred when it held all of his claims were preempted under the federal Labor
Management Relations Act (LMRA), 18 U.S.C. y 6001 et. seq, and dismissed the
claims as time-barred after the expiration of the LMRA's six-month statute of
limitations, 29 U.S.C. y 160(b). We affirm the dismissal of the claims against
Boise, and reverse and remand as to the claims against the Union.1
The district court correctly held that Haµanson's state law claims against
Boise are preempted by the LMRA. The LMRA preempts 'claims founded
directly on rights created by collective-bargaining agreements, and also claims
substantially dependant on an analysis of a collective bargaining agreement.'
Cramer v. Consol. Freightways, 255 F.3d 683, 689 (9th Cir. 2001). Haµanson's
state law claims against Boise are dependent on an analysis of the collective
bargaining agreement. Haµanson--who was terminated for fighting on company
property with fellow employee Thomas Dorsey--contends his claims are not
preempted because the right to act in self-defense is established public policy in the
1
Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.
2
state of Oregon, thus giving him state law claims for wrongful discharge and IIED.
But, Oregon has never recognized a wrongful discharge claim based on an
employee's affirmative right to self-defense. Thus, Haµanson's wrongful
discharge claim--and his IIED claim arising from his purportedly wrongful
termination--requires interpretation of the collective bargaining agreement's
provision which stated Boise could 'discipline employees only for just and
sufficient cause.' Therefore, Haµanson's state law claims against Boise are
preempted by the LMRA. See Cramer, 255 F.3d at 689. Because Haµanson filed
his claims outside the LMRA's six-month statute of limitations, the district court
correctly dismissed the claims against Boise.
However, the district court erred when it held Haµanson's state law claims
against the Union are preempted by the LMRA. Haµanson contends the Union
defamed him when it encouraged Dorsey to file a police report which stated that
Haµanson had been the aggressor in their altercation. Although 'statements that are
made in grievance proceedings established by a [collective bargaining agreement] .
. . . are privileged and may not support a state tort claim,' Hyles v. Mensing, 849
F.2d 1213, 1217 (9th Cir. 1988), we find no authority for the proposition that the
statements the Union encouraged Dorsey to maµe to the police were statements
made 'in grievance proceedings.' Hyles provides that statements are privileged if
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they are made by witnesses in the course of grievance hearings. The district court
erred when it extended the Hyles rule to cover any and all statements made while
the Union's representation of Dorsey representation was ongoing.
We cannot agree with the dissent that the Union's encouragement of Dorsey
to maµe an allegedly false report of Haµanson's actions to the police can be a
privileged act because Dorsey, the Union favorite, was engaged in grievance
proceedings, and that such a report might advantageously leverage Dorsey's
position in the grievance proceedings. The Union stands accused of a tort:
defamation of Haµanson by encouraging Dorsey's false police report to the police.
We would not extend Hyles to hold that civil tort becomes privileged simply
because it furthers the litigation posture of the tortfeasor's favorite.
Thus, we hold that Haµanson's state-law defamation claim against the
Union, and his IIED claim arising from the alleged defamation, are not preempted
by the LMRA. Because Haµanson's state-law claims against the Union were not
preempted by the LMRA, they also were not barred by the LMRA's statute of
limitations.
We thus AFFIRM the dismissal of Haµanson's claims against Boise,
REVERSE the dismissal of Haµanson's claims against the Union, and REMAND
to the district court for further proceedings consistent with this decision.
4
Haµanson shall bear Boise's costs on appeal. The Union shall bear half of
Haµanson's costs on appeal.
5
FILED
Haµanson v. Boise, Inc., No. 10-35669 JUN 03 2011
MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS
I concur in the majority's disposition with respect to Haµanson's claims
against his former employer, Boise, Inc. I disagree, however, with both the
analysis and result of the majority's disposition of Haµanson's claims against his
former union, Local 396 of the Western Pulp & Paper Worµers Association. I
therefore respectfully dissent from that portion of the majority's disposition.
Haµanson alleged state law claims against the Union alleging that 'the
Union defamed him when it encouraged Dorsey to file a police report which stated
that Haµanson had been the aggressor in the altercation.' Citing Hyles v. Mensing,
849 F.2d 1213, 1217 (9th Cir. 1988), for the proposition that 'statements that are
made in grievance proceedings . . . are privileged and may not support a state tort
claim,' the majority distinguishes Hyles from the case at bench because it 'find[s]
no authority for the proposition that the statements the Union encouraged Dorsey
to maµe to the police were statements 'made in grievance proceedings.'' Maj.
Dispo. at 3.
In my view, the majority focuses on the wrong issue. The Union did not file
the police report, but 'encouraged' Dorsey to file one. Thus, the issue is not
whether the statements made in the police report were 'made in grievance
proceedings,' but whether the Union's 'encouraging' Dorsey to file the police
report was 'inextricably intertwined' with the grievance proceedings. Lingle v
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 402 (1998). And what could be
more closely intertwined with the grievance proceeding than the Union's
strategizing and deciding how to defend itá Dorsey was also a member of the
Union and the other party in the altercation that led to Haµanson's dismissal. The
Union, believing Dorsey's case to be meritorious, agreed to taµe his case to
arbitration after it lost (as it did in Haµanson's case) the third stage grievance. In
preparing to defend Dorsey in the arbitration proceeding, the Union decided its
case would be stronger if it had a police report to corroborate Dorsey's statements.
Thus, 'encouraging' Dorsey to file a police report was integral to its defense of
Dorsey at the arbitration hearing.
As Haµanson's own allegations in his First Amended Complaint maµe clear,
Dorsey's bringing of a civil suit against Haµanson after the conclusion of the
arbitration process was 'influenced by the success that [Dorsey] had in the
arbitration process, which was orchestrated by' the Union. Thus, the Union's acts
of encouragement and 'orchestration' were 'inextricably intertwined' with its duty
under the collective bargaining agreement to defend meritorious cases in the
contractual grievance process. Id. The resolution of Haµanson's defamation claim
would be 'substantially dependent upon analysis of the terms of' the collective
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bargaining agreement. Allis-Chalmers Corp. v. Luecµ, 471 U.S. 202, 220 (1985). I
µnow of no subject which could be more closely intertwined with the contractual
grievance process than the Union's decision on how to defend a grievance. The
majority bases its decision on an analysis of the statements made by Dorsey in the
police report, but the proper factor to analyze is the Union's act of encouraging
Dorsey to file a police report, and the relationship of the Union's act to the
grievance process.
In this regard, in Scott v. Machinists Automotive Trades District Lodge No.
190, 827 F.2d 589 (9th Cir. 1987), we examined the 'allegedly defamatory remarµs
[that] were made in the course of a counseling session and the prearbitration
meetings and investigative hearings.' Id. at 594. We held that '[t]he defamation
claim cannot be evaluated apart from the grievance procedure provided by the
contract, and thus is preempted by federal labor law.' Id. Moreover, we cited
Green v. Hughes Aircraft Co., 630 F. Supp. 423, 426-27 (S.D.Cal. 1985), with
approval. See Scott, 827 F.2d at 594. Green held that a defamation claim was
'preempted because the defamatory statements were uttered and published within
the context of the incident's initial report and subsequent investigation and thus
were central to the rights and procedures under the collective bargaining
agreement.' Scott, 827 F.2d at 594 (citing Green, 630 F. Supp. at 426-27). So too,
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here, the Union's urging that a police report be filed was done 'within the context
of the incident's . . . subsequent investigation and thus [was] central to the rights
and procedures under the collective bargaining agreement.'1
For these reasons, I would hold that Haµanson's defamation and IIED claims
against the Union are also preempted by the LMRA.
1
The majority compounds its error by characterizing my analysis of
'the Union's encouragement of Dorsey' as a 'privileged act.' Maj. Dispo. at 4.
But whether or not the Union's act was privileged as a matter of defamation law is
entirely irrelevant to my analysis, which turns, under accepted LMRA analysis, on
whether the Union's act was 'inextricably intertwined' with the grievance process.
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