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Court of Appeal, First District, Division 2, California.


No. A043359.

Decided: November 09, 1989

Thomas J. LaLanne, LaLanne & Gulick, San Francisco, for plaintiff/appellant Seaview Industries, Inc. David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, for respondent United Broth. of Carpenters and Joiners of America, Union No. 1149.

Respondent union wrote a letter to an employer with whom the union had a collective bargaining agreement.   The letter claimed that appellant, a non-union employer, was not providing to its non-union employees the wages and benefits called for by the subcontracting clause of the union's collective bargaining agreement.   The union's letter threatened to file a grievance under the procedure established by the collective bargaining agreement if a subcontract was awarded to appellant.

The letter allegedly caused appellant to lose a large business order.   Appellant sued the union for libel and interference with prospective economic advantage, alleging that in fact the union knew the contents of the letter were false and maliciously sent the letter.   The union moved for summary judgment on the grounds that appellant's action was preempted by federal law, and that the union's statements regarding an alleged grievance under the collective bargaining agreement were privileged.   The trial court granted summary judgment.

We reverse because we conclude that appellant's claims were not preempted by federal law.   Further, we conclude that the privilege defense available to the union was a conditional, not an absolute, privilege;  and that appellant presented sufficient evidence of malice to defeat summary judgment.


Appellant is a ship's habitability subcontractor, that performs work on the living accommodations on board ships.   Appellant had a collective bargaining agreement with the union which expired at the end of 1983.   It was not renewed.   In 1984, appellant entered into a “Master Subcontract Agreement” with another company, Southwest Marine, Inc., under which appellant would perform habitability work on four U.S. Navy ships.

The relationship between appellant and the union turned increasingly bitter.   The union struck appellant in July 1984, interfering with the habitability work and forcing appellant's employees to approach the job site by sea rather than by land.   The union also filed charges with the National Labor Relations Board (NLRB), alleging that appellant must make certain benefit payments to trust funds on behalf of employees because appellant had not properly terminated its obligation to do so under the expired collective bargaining agreement.   The NLRB charges were settled.

In December 1984, the union filed suit 1 in U.S. District Court against appellant concerning the issue of the contested benefit fund contributions.   Appellant defended on the grounds that the NLRB proceeding had concluded that issue, and the union dropped its suit.   About three weeks later, the union wrote the letter to Mr. Maybaum, Assistant General Manager of Southwest Marine, which became the subject of this suit.   The letter reads as follows:  “Dear Mr. Maybaum:  [¶] This office has been informed that Mr. David Curto, dba Seaview Industries, has submitted an offer to your firm as a sub-contractor to perform certain habitability work on the Navy Ship S.S. Wichita.  [¶] This letter is to formally advise your firm that Mr. Curto, Seaview Industries, does not pay prevailing wages and conditions as required under the Master Agreement.  [¶] Should your firm employ Mr. Curto, Seaview Industries, as a sub-contractor, we will file a grievance under Article 23 of the Agreement against Southwest Marine, Inc. alleging violation of Article 2 Sub–Contracting.  [¶] Respectfully yours, [¶] Rick Anderson [¶] Financial Secretary.”

Article 2 of the collective bargaining agreement between the union and Southwest Marine, referred to in the union's letter, provides in pertinent part as follows:  “Article 2.   Subcontracting.  [¶] 2.1 The agreement of the Parties with respect to the subject of subcontracting shall be that whenever the Employer subcontracts work ․ persons performing such work shall receive not less than the wage and conditions provided for in this Agreement․  [¶] 2.2 The Employer will assist with the enforcement of this Article if any question of intent arises.”

After the union's letter, Southwest Marine informed appellant that it feared the prospect of labor disruptions, and that appellant could not do the habitability work in question.

Appellant contends that in fact the union knew, apparently as a result of the previous litigation over benefit fund payments, that appellant was paying its workers the same wage rates as those provided for in the relevant agreement, and was paying its employees additional amounts in cash equivalent to the benefit fund payments which appellant was no longer making to the union's trust fund.   Appellant alleged that the union falsely and maliciously informed Southwest Marine to the contrary, thereby depriving appellant of the habitability work on the Wichita and committing the torts of libel and interference with appellant's prospective economic advantage.

The union moved for summary judgment on the grounds that (1) appellant's claims were preempted by federal law;  and (2) the union's actions in sending a letter regarding a possible grievance under its collective bargaining agreement were privileged, and could not form the basis of the torts alleged.   The trial court granted the motion.   Appellant timely appealed.


A. Preemption

 Under the latest U.S. Supreme Court precedent, causes of action founded upon state law are only preempted by section 301 of the federal Labor Management Relations Act (LMRA) (29 U.S.C. § 185) (hereafter section 301) where resolution of the state tort would “require” an interpretation of a collective bargaining agreement governed by federal law.  (Lingle v. Norge Div. of Magic Chef, Inc. (1988) 486 U.S. 399, ––––, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410;  accord Rodriguez v. Yellow Cab Cooperative, Inc. (1988) 206 Cal.App.3d 668, 679, 253 Cal.Rptr. 779 [citing Lingle ];  DeSoto v. Yellow Freight Systems, Inc. (9th Cir.1988) 851 F.2d 1207, 1207–1208 [“Lingle holds [that] the state law claims that do not require interpretation of a collective-bargaining agreement are not preempted by section 301․  We accordingly reverse our holding that DeSoto's state law claim was preempted by section 301 and remand to the district court for further proceedings on the state law claim.”].)

The Lingle decision establishing this particular standard for preemption under section 301 was decided after the trial court's decision in this case, and was not available for that court's consideration in analyzing the preemption issue.   Appellant argues that its tort claims do not require interpretation of any collective bargaining agreement and are not preempted by federal law.

The only post-Lingle decision disclosed by our research which has analyzed this question, of federal preemption of similar tort claims for interference with contractual relationship in a collective bargaining context, found that such claims brought against an entity not a party to the collective bargaining agreement were not preempted by federal law because they did not require interpretation of a collective bargaining agreement.  (Dougherty v. Parsec, Inc. (6th Cir.1989) 872 F.2d 766, 771 [“Therefore, this court holds, on remand [from the U.S. Supreme Court] and in light of Lingle, that Dougherty's claim against Seaboard for tortious interference with contract is not preempted.”].)

Analysis of pre-Lingle cases decided in analogous contexts fortifies our conclusion that the claim in issue here is not federally preempted.   In Linn v. Plant Guard Workers (1966) 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582, a state law action was instituted alleging that during the course of a union organizing campaign (i.e., before a § 301 labor contract could have been formed between the parties) an employer official was maliciously libeled.   The U.S. Supreme Court allowed the state law action to proceed despite the union's claim that federal labor policy and the jurisdiction of the NLRB barred the claim.  “We conclude that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him.”  (Linn v. Plant Guard Workers, supra, 383 U.S. at p. 55, 86 S.Ct. at p. 659.)

More recent cases, decided under section 301, also conclude that a claim is not federally preempted where it has only a peripheral relationship to a collective bargaining agreement.  “In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.”  (Allis–Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 212, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206, fn. omitted.)   The right to be free from defamation and other tortious conduct is such a state rule proscribing conduct, which is independent of any labor agreement.

In Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 395 and footnote 9, 107 S.Ct. 2425, 2431 and footnote 9, 96 L.Ed.2d 318, the high court likewise held that union members could assert rights against their employer which were independent of the collective bargaining agreement, because the rights asserted arose from obligations which predated the plaintiffs' union membership and average under the collective bargaining agreement.   Since the rights allegedly arose at a time when the plaintiffs were not parties to the collective bargaining agreement, their rights were “not substantially dependent upon interpretation of the collective-bargaining agreement.”  (Ibid.)

The union, however, argues here that the claim against it is preempted by section 301, because reference must be made to the collective bargaining agreement in order to determine whether the union's statements about the alleged noncomplying wage rates and benefit contributions were false.   A similar contention was flatly rejected by the Ninth Circuit in Carpenters Southern Cal. Admin. v. Majestic Housing (9th Cir.1984) 743 F.2d 1341, 1344–1345.   The issue in that case was whether a union's action against a third party to recover on a mechanics' lien was governed by section 301, because the entitlement to and the amount of the lien depended upon the terms of the collective bargaining agreement the union had with another party, the employer.  “[T]he district court found that jurisdiction [under § 301] existed because calculation of the amount that [plaintiff] could recover through foreclosure of its lien would require reference to [the employer's] collective bargaining agreement with the Union, and would require proof that [the employer] had breached the collective bargaining agreement by failing to make the required contributions.  [¶] We think the district court has given section 301 of the LMRA an excessively expansive interpretation.”  (Id. at p. 1344.)  “The [Supreme] Court in Franchise Tax Board [v. Construction Laborers Vacation Trust (1983) 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420] made clear, however, that the preemptive force of section 301 was not without limits.   The Court noted that ‘even under § 301 we have never intimated that any action merely relating to a contract within the coverage of § 301 arises exclusively under that section.’ ”  (Ibid.;  accord Williams v. Caterpillar Tractor Co. (9th Cir.1986) 786 F.2d 928, 935, affirmed (1987) 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 [“For jurisdiction to lie under § 301, ‘the rights and liabilities of the parties ․ must be a product of the bargaining agreement itself, and not of some other origin,’ ” quoting Lumber Prod. Indus. v. W. Coast Indus. Rel. (9th Cir.1985) 775 F.2d 1042, 1046].)

Three recent decisions by other appellate courts also indicate that under the standard fashioned in recent U.S. Supreme Court cases, of which Lingle is the latest, a state law tort claim may be brought, even though a collective bargaining agreement has some tangential bearing on the dispute.   The relevant question is whether the state law claim requires interpretation of the collective bargaining agreement.  (Rawson v. United Steelworkers of America (1988) 115 Idaho 785, 770 P.2d 794, 797, cert. granted, ––– U.S. ––––, 110 S.Ct. 714, 107 L.Ed.2d 734 [under Lingle, claim could be brought against union for negligent failure to inspect a mine, even though union claimed its allegedly tortious conduct was not a violation of its contractual duty under the provisions of the collective bargaining agreement;  “[I]n the instant case, no interpretation of the collective-bargaining agreement is required to determine whether the union member ․ committed a tort when he committed various acts and omissions․  Rather, such alleged acts of negligence are measured by state tort law.”];  Walton v. Carolina Tel. & Tel. Co. (1989) 93 N.C.App. 368, 378 S.E.2d 427, 432 [state claim for fraud not preempted by federal law even though employer claimed its actions were permitted by the collective bargaining agreement:  “Walton's fraud claim at most only tangentially concerns provisions of that agreement.   [Citations.]”];  and see also Miles v. Melrose (5th Cir.1989) 882 F.2d 976, 991 [“Since reference to the [labor] contract is not needed to resolve the issue of liability, the claim ․ [against the union] is sufficiently independent of the contract and not preempted by § 301.”].)

In short, what the Ninth Circuit said in Carpenters Southern, supra, said again in Lumber Prod., supra, and said yet again in Williams, supra;  and what the Supreme Court said in Linn, supra, and said yet again in Franchise Tax Board v. Construction Laborers Vacation Trust (1983) 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420, Allis–Chalmers, supra, Caterpillar, supra, and now most recently in Lingle, supra, is that a state law claim is not preempted merely because the claim bears some tangential relation to federal labor policy or to the terms of a collective bargaining agreement.   To put the shoe on the other foot, we do not think that a libel claim against an employer would be federally preempted where the plaintiff was an accountant who alleged he was falsely and maliciously accused of embezzling employee trust funds, even though reference might be made to the governing collective bargaining agreement in order to ascertain the amount of the funds in issue and whether the employer knew that the accountant's actions were in accord with the agreement.   In that case as in this one, the claim would “merely relate [ ]” to, and would not require interpretation of, the collective bargaining agreement in the relevant sense.

Further, even assuming arguendo that a state law claim were preempted in the sense that it must be governed by federal law, it would not necessarily be barred from assertion.  (See Baylis v. Marriott Corp. (2d Cir.1988) 843 F.2d 658, 664 [indicating that such a claim may be brought under the “federal common law”;  “Thus, some federal courts have permitted claims asserting tortious interference with labor contracts governed by the LMRA.”];  cf. Lingle v. Norge Div. of Magic Chef, Inc., supra, 486 U.S. at p. ––––, fn. 12, 108 S.Ct. at p. 1885, fn. 12 [“Thus, as a general proposition, a state law claim may depend for its resolution upon both the interpretation of a collective-bargaining agreement and a separate state law analysis that does not turn on the agreement.   In such a case, federal law would govern the interpretation of the agreement, but the separate state law analysis would not be thereby pre-empted.”]

Nor would a state court be unable to hear such claims simply because they arose, at least in part, under federal law.   There is no exclusive federal jurisdiction under section 301.  (See Dowd Box Co. v. Courtney (1962) 368 U.S. 502, 506, 82 S.Ct. 519, 522, 7 L.Ed.2d 483 [“The statute [section 301] does not state nor even suggest that such [federal] jurisdiction shall be exclusive.   It provides that suits of the kind described ‘may’ be brought in the federal district courts, not that they must be.”].)  Thus, the claim could simply proceed in state court like any other claim arising under federal law, where no party has sought to timely remove the claim to federal court.

We conclude in any event that, under the applicable Lingle standard, the claims asserted were not federally preempted.   The only issue here is whether the sender of the letter in question falsely and maliciously represented that appellant's business practices were other than they in fact were.   To resolve that question, “no interpretation of the collective-bargaining agreement is required” (Rawson v. United Steelworkers of America, supra, 770 P.2d at p. 797);  and the union's acts are simply “measured by state tort law.”   (Ibid.)  In short, neither the reference by the union, in its allegedly libelous letter to Southwest Marine, to a conditional future intention to file a grievance under Article 23 of its collective bargaining agreement, nor the reference to prevailing wages and conditions under its “Master Subcontract Agreement,” required “interpretation” of the collective bargaining agreement on the state law issues of libel and interference with prospective economic advantage alleged in appellant's complaint.   The disputes at issue here only tangentially involve reference to provisions of such agreement, involve a separate state law analysis that does not turn on the collective bargaining agreement, and accordingly are not preempted by federal law.  (Lingle v. Norge Div. of Magic Chef, Inc., supra, 486 U.S. at ––––, ––––, fn. 12, 108 S.Ct. at pp. 1882, 1885, fn. 12.)

B. Privilege

 The union also suggests that appellant's claims are defeated by an absolute privilege.   It is true that both state and federal courts have recognized that a party to a collective bargaining agreement may not sue the other party, its employees, members, or agents, for asserting positions regarding a possible labor grievance, because this is what their agreement requires them to do.  (DeTomaso v. Pan American World Airways, Inc. (1987) 43 Cal.3d 517, 530–531, 235 Cal.Rptr. 292, 733 P.2d 614, cert. denied (1987) 484 U.S. 829, 108 S.Ct. 100, 98 L.Ed.2d 60 [“The parties to such [a collective bargaining] agreement must be allowed to perform their duties without judicial interference in all but the most outrageous of cases.   We do not find that the acts complained of establish such an outrageous case․  [¶] Similarly, statements made ․ during formal or informal disciplinary hearings cannot support a cause of action.   There can be no doubt that the statements made ․ are privileged and cannot form the basis for liability at law, whether or not they were made during an actual grievance proceeding.”];  see also Wallin v. Vienna Sausage Manufacturing Co. (1984) 156 Cal.App.3d 1051, 1056, 203 Cal.Rptr. 375 [statements made in union grievance hearing protected by privilege under state law];  accord Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 994, 225 Cal.Rptr. 852 [citing Wallin ];  cf., e.g., Local 472, etc. v. Georgia Power Co. (11th Cir.1982) 684 F.2d 721, 728 [“The free exchange of opinions, however harsh or one-sided, is essential to the smooth functioning of relations between labor and management․  Such communications must be permitted and we hold that under federal common law they are privileged.   As a matter of law, the letters ․ do not establish the tort of interference with contractual or business relations.”];  accord Hasten v. Phillips Petroleum Co. (10th Cir.1981) 640 F.2d 274, 277, 279 [letter sent to other party pertaining to issue grievable under labor contract held absolutely privileged in libel action even though letter was alleged to be “false, untrue, and malicious”];  see also Hyles v. Mensing (9th Cir.1988) 849 F.2d 1213, 1217.)

However, the union has not cited a case, nor has our own research discovered one, which extends this absolute privilege to actions by third parties, neither employees nor members of the union, who are subjected to tortious conduct in communications between parties to a collective bargaining agreement.   The rationale which supports application of such an absolute privilege to the claims made by parties to the collective bargaining relationship does not support its extension to claims by third parties.   There is no danger, for instance, that third parties will employ tort actions as a strategy to avoid arbitration of their grievances under the labor contract, because third parties are by definition not party to the contract and cannot invoke or avoid arbitration.   Further, extension of such a privilege to third parties' claims has little to recommend it in terms of furthering legitimate interests of sound social policy.   The parties to a collective bargaining relationship may in some sense have assumed the risk of certain types of otherwise actionable tortious conduct against each other simply by virtue of their relationship.   We do not see, however, why a third party should be charged with having assumed the risk that it will be injured by such tortious conduct.

 We believe that no absolute federal privilege applies to defeat such a third party's claim, and that instead only a qualified privilege under state law (Civ.Code, § 47, subd. 3) 2 is applicable.

We have recognized the applicability of this qualified privilege in the recent case of Cuenca v. Safeway San Francisco Employees Fed. Credit Union, supra, 180 Cal.App.3d at pp. 995–996, 225 Cal.Rptr. 852.   There, we applied the privilege of Civil Code section 47, subdivision 3 to assertions between “a communicator and a recipient with a common interest, although to be protected the communication must be one ‘reasonably calculated to further that interest.’  [Citation.]”  (Cuenca v. Safeway San Francisco Employees Fed. Credit Union, supra, 180 Cal.App.3d at p. 995, 225 Cal.Rptr. 852.)   We also noted that “If ․ malice [were] established, its existence would vitiate the qualified privilege․”  (Id. at p. 996, 225 Cal.Rptr. 852.)

We note that the same would be true under U.S. Supreme Court authority.   In Linn v. Plant Guard Workers, supra, the U.S. Supreme Court held that this same qualified privilege applied to the libel claim of a non-party to a collective bargaining agreement against a union:  “We apply the malice test to effectuate the statutory design with respect to pre-emption.   Construing the [National Labor Relations] Act to permit recovery of damages in a state cause of action only for defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false guards against abuse of libel actions and unwarranted intrusion upon free discussion envisioned by the Act.”  (383 U.S. at p. 65, 86 S.Ct. at p. 664.)

 The evidence presented on the summary judgment motion here, which included evidence tending to show that the union knew the true facts but was motivated by ill-will towards appellant arising out of the outcome of the parties' previous litigation and past differences, would be sufficient to defeat the motion on the issue of whether malice existed.   The evidence could justify a reasonable conclusion by an ultimate finder of fact that the union was motivated by malice in making the communication in issue here.   Consequently, summary judgment was not proper.

 We emphasize we in no way detract from those precedents which hold that the parties to a collective bargaining relationship may not pursue each other in court over statements made in grievance proceedings.   We simply hold that the parties to those proceedings have only a qualified, not an absolute, privilege as to claims made by third parties;  and that those grievance proceedings may not be used with absolute immunity to perpetrate malicious attacks on third parties.3


The judgment is reversed, and the case is remanded for further proceedings consistent with the views expressed herein.


1.   The union points out the named plaintiff in this prior action was the Marine Carpenters Pension Fund, which shares adjoining office space with the union at 117–119 Broadway in Oakland.   For purposes of brevity we refer to both entities as “the union.”

2.   Civil Code section 47, subdivision 3 provides:  “A privileged publication or broadcast is one made—[¶] ․  [¶] In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.”

3.   We reject the contentions of the union made by its petition for rehearing.The union offers a variation of its argument that appellant's claims are preempted because they would allegedly require interpretation of contractual language in the collective bargaining agreement regarding prevailing wages and conditions, in order to resolve tort claims which do not arise under that agreement or require its interpretation;  i.e., preemption is urged because the same set of facts must be addressed under both state law and the language of the collective bargaining agreement.   However, we must reject this argument since here, as in Lingle, supra, “even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other hand, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.”  (486 U.S. at p. ––––, 108 S.Ct. at p. 1883, emphasis added, fn. omitted.)The union reasserts the benefit of an absolute privilege which applies as between the parties to a labor contract under federal law, while citing no decision in which any court has held such a privilege applicable to bar the claims of third parties.   The union cites only cases in which the victim of the alleged tortious conduct was an employee-party to the agreement, such as Scott v. Machinists Automotive Trades D. Lodge 190 (9th Cir.1987) 827 F.2d 589 and DeTomaso v. Pan American World Airways, Inc., supra.   While parties to the labor agreement may invoke its grievance procedure and are barred from recasting their grievances as tort claims, third parties cannot invoke the grievance procedure and are not governed by it.   We have held nevertheless that the union was conditionally, not absolutely, privileged to make the assertions to Southwest Marine it made here;  and the union does not challenge our conclusion that sufficient evidence was presented below to preclude summary judgment in its favor on the issue of malice.Finally, the union explicitly asserts a novel preemption argument;  i.e., appellant's claims against it are within the exclusive jurisdiction of the NLRB under the National Labor Relations Act (29 U.S.C. § 151 et seq.), rather than being preempted under section 301.   We reject this contention since, as the Supreme Court noted in Lingle, supra, “§ 301 pre-emption is all that is at issue in this case ․”  (486 U.S. at p. ––––, fn. 8, 108 S.Ct. at p. 1883, fn. 8.)   If appellant had contended the prevailing wage subcontracting provision of the labor contract was illegal, such a claim could well be within the exclusive jurisdiction of the NLRB.   However, as the union concedes in its petition for rehearing, “No contention is made by Seaview that the subcontracting clause involved herein is unlawful.”   It is a non sequitur to assert that, since a claim of illegality of the collective bargaining agreement not made here would be preempted, the claim actually made here are preempted.   This union argument in any event was flatly rejected by the U.S. Supreme Court in Linn v. Plant Guard Workers, supra [malicious libel claim brought against union by person not a party to labor contract not barred by exclusive jurisdiction of NLRB].  (383 U.S. at p. 55, 86 S.Ct. at p. 659.)   As Linn demonstrates, the fact that a union may be exercising a right accorded by federal law (union organizing in Linn, or preparations for the filing of a grievance in support of a presumably lawful subcontracting clause here) does not mean that a state law action is barred when the union maliciously commits alleged torts against third parties during the exercise of those federal rights.

PETERSON, Associate Justice.

SMITH, Acting P.J., and BENSON, J., concur.

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