Sixth Circuit Affirms Dismissal of Defamation and Hybrid §301/Fair Representation Claims Against Chillicothe Employer

On Friday, the Sixth Circuit Court of Appeals affirmed a summary judgment entered in favor of a Chillicothe employer on defamation and hybrid §301/fair representation claims brought by a terminated union employee. Blesedell v. Chillicothe Telephone Co., No. 15-354 (6^th Cir. 1-22-16).   In that case, the plaintiff had been terminated after an investigation revealed potential misconduct and then an attempted cover-up by the employee (as well as additional allegations).  His union ultimately decided not to pursue arbitration of the decision after its own investigation.  The plaintiff challenged the termination and also alleged defamation based on what the Human Resources Manager allegedly told the union and the sheriff’s office.  The trial court granted summary judgment because the union did not breach its duty of fair representation and because the statements made by the HR Manager could not be proven to be false and/or were protected by a qualified privilege.   Although the employee provided the union with written statements from witnesses (who were not interviewed by the union) and was prevented from attending grievance meetings, he could not show unfair representation by the union.    The Court of Appeals affirmed.

According to the Court’s opinion, the employer frequently recorded conversations between employees and with customers.  The plaintiff was suspected of shirking work and falsifying his time card on December 4.  An investigation could not substantiate that he had performed the work he claimed on his time card to have performed on the afternoon in question.  After he was questioned, he requested another employee to modify a work ticket to reflect that he had performed certain work recorded on December 9 on December 4.  However, there were recorded conversations about the December 9 work which called that version into question.  Then, the employee claimed that he had performed the work on both dates. 

Then, a caller reported that the plaintiff had performed work on their property on December 4 (and later substantiated that with a written statement).  However, after listening to a recording of that conversation, the employer and union believed that the plaintiff was the caller.  Then, the plaintiff reported to the union that he had performed a third work request on that afternoon as well.   A union officer attempted to recreate the plaintiff’s version of events, but found it to be physically impossible to have occurred as he had described.  For instance, it believed that he would have had to have driven his truck to have gotten all of the work done as described, but the GPS showed that his truck never moved that afternoon.   In the meantime, another employee accused him of inappropriate conduct, and of trading company equipment for illegal drugs.   The Company decided to terminate his employment and the grievance process ensued.  The plaintiff was awarded unemployment compensation, but the union officers voted to not pursue arbitration of his claim because they believed that it would be fruitless and never provided the employer with written statements it had obtained from the plaintiff or his alleged witnesses. 

Finally, the plaintiff reported to the Sheriff’s office that he had been threatened by the co-worker who had accused him of inappropriate conduct and taking illegal drugs.   A deputy contacted the HR manager and wrote down that she was told that the plaintiff had been fired because there had been allegations that he was trading parts for illegal drugs.  The plaintiff filed suit claiming that he had been terminated without just cause under the bargaining agreement (the §301 claim), that the union had failed to fairly represent him, and that the HR manager had defamed him by statements made to the union and to the deputy sheriff.  The trial court granted summary judgment to the employer.

In order to prevail on his hybrid claim against the employer and the union, the plaintiff was required to prevail on both his §301 claim and his fair representation claim.  Because the plaintiff could not prevail on his fair representation claim, the court never addressed whether his termination had been for “just cause” under the bargaining agreement.   “A plaintiff may prove breach of duty by showing that ‘the union’s actions or omissions during the grievance process were arbitrary, discriminatory, or in bad faith.’”   With respect to a union acting arbitrarily, a plaintiff must prove that the union’s “conduct “is so far outside a wide range of reasonableness as to be irrational.”  Because the union here had conducted its own investigation, reviewed and reasonably weighed the evidence and consulted with the international union, its actions could not be deemed arbitrary.  Its internal investigation need only be reasonable, not perfect.  “[U]nion agents are not lawyers,” and “mere negligence or poor judgment” alone is not sufficient to prove breach of duty.  The union had requested and reviewed all of the employer’s evidence, attempted its own re-creation of the alleged events and reasonably determined that the plaintiff’s version was not credible even if supported by written witness statements and even if the union did not personally interview those witnesses.   There was no evidence that a more thorough investigation by the union would have changed its decision. 

The Court also rejected the plaintiff’s argument that he was unfairly excluded from the grievance process.  The union’s policy was to exclude grievants from the step 3 meetings and the employer refused to permit him back onto its property after his termination.   Otherwise, the grievant was kept informed of the process and was regularly updated.  In any event, a “union’s mere negligence in keeping the grievant informed about the grievance process was not enough to prove breach of duty.”

The union’s refusal to contest more vigorously the employer’s evidence was also not inappropriate.  The recordings of the telephone conversations which attempted to substantiate the plaintiff’s version of events reasonably “posed an insurmountable hurdle” to prevailing in any arbitration.  It was not irrational to believe that none of the evidence provided by the plaintiff would have caused the employer to reconsider its decision.  

There was also no evidence that the union’s actions were motivated by discrimination or that he was treated differently than substantially similar grievants.  The Court also rejected the bad faith argument even though the plaintiff had been removed as a union steward because of a belief that he was undermining the union’s business manager.  The Court also found that the union officer’s desire for a non-union management position at the employer was insufficient evidence of bad faith in the absence of proof of personal animosity. 

As for the defamation claims, the court found that the alleged statements to the deputy sheriff by the HR Manager could not be defamatory because the plaintiff himself had relayed substantially similar information to the deputy approximately 30 minutes earlier.  “A plaintiff may therefore prove defamation only if the third party receiving the publication understands its defamatory meaning.”  Because the deputy could not have understood the statements to be defamatory after hearing much the same information earlier from the plaintiff, the alleged statement is not actionable.   Further, it was true that allegations about drug use had been made against the plaintiff and there is no indication that the HR Manager conveyed that he believed those allegations to be true or that he simply conveyed that the plaintiff had been trading company equipment for drugs.  Instead, he relayed that such allegations had been made.  

In addition, the HR Manager’s statements to the union officers during the grievance meetings about the plaintiff’s alleged misconduct were protected by qualified privilege.  In any event, playing recordings for the union officers – of the co-worker’s allegations about inappropriate conduct and trading company equipment for drugs --  is not actionable as a defamatory statement.   The HR Manager never indicated that he believed the allegations, but was simply informing the union that the allegations had been made.  

Finally, telling the union officers that the plaintiff falsified a company record was protected by a qualified privilege because the HR Manager – while probably incorrect – had interviewed a couple of employees to determine if someone else had amended the work ticket to reflect that the work had been performed on December 4 instead of or in addition to the work performed on December 9. “Ohio extends a privilege to statements made in good faith, where ‘an interest [is] to be upheld, [the] statement [is] limited in its scope to this purpose, [there is] a proper occasion, and publication [is] in a proper manner and to proper parties only.’”  In this case, his “statement about the ticket was published only to necessary parties, the Union officers in charge of the grievance.  Finally, [his] statement was limited in scope because it was couched as a “belief.”  The plaintiff could not overcome this privilege without evidence of actual malice, i.e., evidence that the HR manager knew or recklessly disregarded that the information was false.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals Dismisses Supervisor’s Defamation Claims Against Union Officer.

The Trumball County Court of Appeals affirmed the dismissal of a libel suit brought by a beleaguered night-shift supervisor against a local union officer arising out of statements made about the manager in the union newsletter more than ten years ago. Jacobs v. Budak, No. 2007-T-0033 (6/9/08). In the article, the supervisor was referred to as the “midnight cowgirl” and was accused of not following the collective bargaining agreement in assigning overtime opportunities. The Court ultimately affirmed dismissal of the lawsuit because the supervisor could not show with clear and convincing evidence that she suffered actual harm from the article or that the union officer acted with actual malice (i.e., actual knowledge of the falsity, or reckless disregard for the truth, of the statements).

Following the publication of the union newsletter, the supervisor “was subjected to callow harassment by her employees and fellow co-workers. [She] testified that the harassment lasted for a period of two to three months following the publication of the article and that she was subjected to numerous cat-calls and “mooing” sounds as she walked or drove her scooter through the plant. She received prank phone calls where unidentified persons would yell such quips as “yippy-ti-yi-o,” “moo-ooo”, and “got your spurs on.” In addition, cow horns and a cowboy hat were placed on her work scooter subjecting her to further ridicule as she drove through the plant.”

Because the dispute arose out of a “labor dispute” (i.e., a dispute between management and a union over the bargaining agreement and other terms and conditions of employment), the supervisor was required to prove her claim by clear and convincing evidence (which is a higher standard of proof than the regular preponderance of the evidence or more likely than not standard used in most civil cases). She was also required to prove that the allegedly false and defamatory statements were made with actual malice without privilege to a third party and that she suffered actual damage from the statements. “A statement is published with actual malice when it is made with the ‘the knowledge that it was false or with reckless disregard of whether it was false or not.” The Ohio Supreme Court has previously noted that “[a]ctual malice ‘cannot be implied from the character and content of a publication. *** It is not sufficient for a libel plaintiff to show that an interpretation of facts is false; rather, he must prove with convincing clarity that defendant was aware of the high probability of falsity.’”

Therefore, “[m]ere negligence is not enough to establish actual malice . . . Thus, ‘reckless conduct is not measured by whether a reasonably prudent man *** would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’” In fact, courts have been clear that the failure to investigate has been found to constitute malice only “where the defendant has serious doubts that the statement is true.”

In this case, the union officer was able to show that he conducted an investigation and there was some factual basis for his allegations against the supervisor. Although the supervisor alleged that the union officer conducted his investigation negligently, even if that were true, the court found “no evidence that [the union officer] had any serious doubts as to the veracity of the statements.”

“It is clear that access to equalization records was an ongoing debate as the issue was discussed in union-management meetings before, during, and after the article was released. Indeed, [the defendant union officer] was not even familiar with Ms. Jacobs until he was ordered to investigate [an employee’s] complaints in early May of 1997 by his supervisor. Although the statements were certainly negligently made, we cannot say that they were made with such reckless disregard or knowledge as to their falsity.”

The Court also concluded that the supervisor was required to prove actual damages from the allegedly defamatory statement because it arose out of a union dispute and that she failed to do so. “As evidenced by the numerous medical records that were entered into the record, [the supervisor] has a long history of physical and mental distress that may or may not have been exacerbated by this incident. According to her employment evaluations and her own testimony, her employment was unaffected. Indeed, following the release of the article she was given a six percent raise and has been consistently rated in her job performance as “satisfactory” or above. The testimony and medical records [the supervisor] did submit failed to evidence that the article was the proximate cause for the stress she was facing at that time. Indeed, [her] own physician, Dr. Meyers, could not differentiate between the stress that was caused by the article and the stress that resulted from the ensuing legal battle.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-2756.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney