Fulghum v. United Parcel Service, Inc

378 N.W.2d 472, 424 Mich. 89, 1985 Mich. LEXIS 1003

• Court: Michigan Supreme Court
• Decided: December 10, 1985
• Docket: 73092, (Calendar No. 23)
• Status: Published

Opinion

Boyle, J.

We agree with the result suggested by the minority, but for the reasons stated by the Court of Appeals in its disposition of this case.

Where a collective-bargaining agreement provides a method by which disputes are to be resolved, there is a strong policy in favor of deference to that method of resolution. Hines v Anchor Motor Freight, Inc, 424 US 554; 96 S Ct 1048; 47 L Ed 2d 231 (1976). This policy can only be effectuated "if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” United Steelworkers of America v American Mfg Co, 363 US 564, 566; 80 S Ct 1343; 4 L Ed 2d 1403 (1960). Indeed, the United States Supreme Court has held that the decisions of joint management-labor grievance committees, such as was employed in this case, are entitled to the same deference as the decisions of independent arbitrators. General Drivers, Warehousemen & Helpers, Local Union No 89 v Riss & Co, Inc, 372 US 517; 83 S Ct 789; 9 L Ed 2d 918 (1963).

Although the Supreme Court recognized an exception to the rule of finality in the context of a Title VII employment discrimination claim in Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), it has no application to this case. Here, the finding of the grievance committees that plaintiffs seek to avoid is not one of constitutional magnitude or statutory construction; rather, it is a simple question of fact clearly within the competence of the grievance committees. See, also, Ivery v United States, 686 F2d 410 (CA 6, 1982), especially Jones, J., concurring. [130 Mich App 375, 377-378; 343 NW2d 559 (1983).]

Affirmed.

Ryan, Brickley, Cavanagh, and Riley, JJ., concurred with Boyle, J.

Levin, J.

Plaintiffs Cleo Fulghum and Robert Morin, employees of defendant United Parcel Service, Inc., were suspended and later discharged after defendants Ed Mastay and Marvin Shevrovich, other employees of ups, accused them of stealing a small quantity of homemade sausage sent to ups for shipping. Fulghum and Morin were members of Local 243 of the Teamsters Union.

Pursuant to the collective bargaining agree ment, 1 Fulghum and Morin filed grievances against ups. At both the local level and on appeal to the state committee, consisting of ups and union representatives, the representatives deadlocked. The agreement provided that a discharge was deemed to be upheld in the event of deadlock. A further appeal was taken to the ups joint-area committee in Chicago. The joint-area committee reached a decision, denied the grievances, and sustained the discharges.

The parties agree that Fulghum’s and Morin’s grievances were properly submitted under the grievance procedure provided in the agreement and that the decision reached in Chicago is final and binding on the issue whether their discharge was for "cause.”

Fulghum and Morin then filed this action in circuit court against their former employer, ups, and Mastay and Shevrovich. The complaint stated three counts; the first and third counts were based on statements made at the time of, and following, the suspension of Fulghum and Morin, accusing them of dishonesty. In the first count, Fulghum and Morin claimed that Mastay and Shevrovich, in the course and scope of their employment with ups, falsely accused Fulghum and Morin of stealing "and/or” misappropriating merchandise belonging to ups or one of its customers and that the statements were subsequently repeated to other persons. Further, written documents were prepared by ups, publishing such false statements. The second count, for invasion of privacy arising from the surveillance and filming of Fulghum and Morin’s work activity, was subsequently withdrawn. The third count alleges intentional infliction of emotional distress resulting from the wrongful accusation and discharge of Fulghum and Morin.

Extensive discovery depositions were taken, and on that basis the circuit court granted defendants’ motion for summary judgment. The Court of Appeals affirmed, 2 stating that "[defendants ups and Shevrovich were granted summary judgment because the grievance process comported with 'elementary fairness’; therefore, plaintiffs were bound by the factual determinations made by the grievance tribunals. Defendant Mastay was granted summary judgment on the basis of collateral estoppel.”

Fulghum and Morin do not claim that ups breached the collective bargaining agreement; nor do they claim that the union violated its duty of fair representation. They claim rather that the decision of the ups joint-area committee affirming their discharge does not bar their common-law claims for defamation and intentional infliction of emotional distress. They rely on Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), and assert that the policy considerations that justify a dual remedy for violation of a statutory right should also govern when a common-law right is involved. Second, they assert that, in the absence of mutuality of estoppel, the decision of the joint-area committee cannot preclude litigation of the issues in the instant action. Third, even if the mutuality of estoppel requirement is satisfied, they contend that the findings of the joint-area committee do not preclude the claims for defamation and intentional infliction of emotional distress because Fulghum and Morin were not accorded minimal due process in the grievance proceedings.

The defendants contend that the summary judgment should be affirmed because of the preclusive effect of the grievance determination. They also argue that since the allegedly defamatory statements were made solely within the scope of Mastay and Shevrovich’s employment, and were made leading up to and within the context of grievance proceedings, the statements are absolutely privileged as a matter of federal labor law. The statements complained of relate to the charges of dishonesty which were the basis of the suspensions and discharges and the grievance filed pursuant to the collective bargaining agreement.

I

Fulghum and Morin allege that the accusations of dishonesty made at the time they were suspended and their wrongful discharge constitute "outrageous” behavior sufficient to support a cause of action for the intentional infliction of emotional distress. Assuming, without deciding, that the tort of intentional infliction of emotional distress is recognized in this state, 3 Fulghum and Morin cannot maintain such a claim on evidence that their employer did no more than inform them of its belief that they had stolen property and, on that basis, they were suspended and later discharged. There is no evidence that ups, Mastay, or Shevrovich held Fulghum and Morin up to obloquy in a manner such as to bring them within the scope of the tort of intentional infliction of emotional distress. On the basis of Fulghum’s and Morin’s deposition testimony, it appears that the accusations related solely to the reason for the discharge, albeit a reason accusing them of dishonesty and theft and locker room language was used. 4 _

A discharge ordinarily involves a communication to the employee of the reason for discharge. If an employer who explains the basis of discharge were subject to an action for mental distress damages on the basis of the explanation, every employee asserting wrongful discharge might claim that the reason or cause stated by the employer is untrue and seek, on that basis, mental distress damages.

Fulghum and Morin have job security only because of the provision in the collective bargaining agreement providing that they may not be discharged except for "just cause.” The question of "cause” for discharge has been decided in the final and binding grievance proceedings conducted pursuant to the collective bargaining agreement. To permit plaintiffs to maintain an action for intentional infliction of mental distress on the basis of the allegation that the accusations were false would be tantamount to allowing them to bring in a different form and forum, a claim for wrongful discharge.

II

Fulghum and Morin’s count in defamation has two components: 1) statements made in the course of and during the grievance procedure, and 2) communications to co-workers.

We hold that accusations of dishonesty made during grievance proceedings provided for in the collective bargaining agreement cannot be the basis of a common-law action for defamation. Federal and state courts have uniformly held that communications made in the course of, or in con nection with, grievance or arbitration proceedings provided for by a collective bargaining agreement, are, at least in some degree, privileged under the law of defamation. 5

Defendants argue that as a matter of federal law the statements are absolutely privileged. In a leading case from the United States Court of Appeals for the Tenth Circuit, General Motors Corp v Mendicki, 367 F2d 66 (CA 10, 1966), the plaintiff was discharged for misappropriation of company property. The alleged slanderous statement was made by a General Motors representative at a grievance meeting between gm and the union. The court held that the statements complained of were protected by an absolute privilege:

We think Congress intended that the respective representatives of employer and employee at such conferences and bargaining sessions should feel free to express their respective contentions as to the pertinent facts and the issues involved fully and frankly and to strongly support their positions with -respect to the controversy . . . "untrammelled by fear of retribution . . . .” Moreover, such actions . . . would tend to impair the chance for a peaceful settlement of labor controversies .... [Id. at 71.]

The federal policy governing statements made during the course of a grievance proceeding has been clearly and repeatedly articulated. 6

Other state courts that have addressed this issue have divided on whether a qualified, 7 rather than an absolute, privilege should be accorded to communications made in the course of, or during, grievance proceedings. 8

We choose to follow Mendicki 9 and accord an absolute privilege to communications during griev anee proceedings because we are of the opinion that such protection is necessary to protect the process. The rationale is the same as underlies the absolute privilege that protects statements made during and germane to judicial proceedings. 10

The potential for interference with the federal scheme of labor regulation is sufficient to "preempt” the interest of the state in protecting its citizens from defamatory statements during grievance proceedings. 11 The decision of the United States Supreme Court in Linn v United Plant Guard Workers of America, 383 US 53; 86 S Ct 657; 15 L Ed 2d 582 (1966), that the nlra does not bar a civil action for libel under state law where the defamatory statements were published during a union organizing campaign by the union and its officers, is not controlling.

The basis of the discharges in the instant case, the accusation that the plaintiffs were dismissed because they stole sausage, was necessarily repeated in the grievance proceedings. A determination whether Fulghum and Morin were discharged for "just cause,” as provided for in the collective bargaining agreement, could not be made without a consideration of the employer’s reasons for the discharge. The exception recognized in Linn is inapposite. 12

In contrast to the recognized exceptions to federal preemption of state law, 13 a common-law ac tion for defamation based on statements germane to the discharge of an employee during a grievance proceeding would directly and severely impair the functioning of the agreed-upon grievance procedure which has been repeatedly sustained by the United States Supreme Court. 14 Whatever deficiencies, if any, there may be in the Teamsters grievance procedure, it is the chosen mechanism under the collective bargaining agreement for the resolution of disputes. A rule of state law that would frustrate the efforts to adjust grievances through the process of collective bargaining would strike at the core of federal labor policy.

The alleged defamatory statements in the in stant case, made within the limited confines of the grievance proceeding, are absolutely privileged. Ups, Mastay, and Shevrovich are absolutely privileged from a defamation action based on what they said, including accusations of dishonesty and theft, during the course of the grievance proceedings.

Ill

Fulghum and Morin also allege that the defamatory accusations of dishonesty and theft were published and communicated to others. The record is sparse on these claims, 15 and Fulghum and Morin acknowledged during their deposition testimony that the circumstances in which the information about their discharge was communicated to others is unknown to them.

It is unrealistic to expect an employer and all of its employees to maintain confidentiality about the discharge of a coemployee where there is an ongoing grievance proceeding, so perfectly that word cannot get out. In many situations it will be difficult to determine the person — the discharged employee, the employer, or union representative— responsible for the information becoming known.

It is critical for a company like ups — the essence of whose business is the careful transport of other people’s goods — to have honest people in its employ. In the instant case, the employer has an interest in informing other ups employees that discharge is the penalty for stealing even sausage. Further, the employees have an interest in knowing how the disciplinary process works in practice. In light of the ultimate holding of the joint committee, the plaintiffs were not damaged by any premature communication of the reason for discharge before its, decision was rendered.

An employer is not privileged to communicate needlessly to the world at large, including fellow employees, the reason for discharge if it is of a character that would hold the discharged employee up to opprobrium. An employer does have a qualified privilege 16 to publish statements to other employees whose duties interest them in the subject. Sias v General Motors Corp, 372 Mich 542; 127 NW2d 357 (1964). In some situations there could be a genuine issue of material fact for the jury regarding a plaintiff’s claim that the employer abused the qualified privilege through excessive publication of the defamatory statement or by proof that the defamatory statement was made with actual malice.

This Court has said that publication of the reason for discharging an employee to his coemploy ees is outside of the qualified privilege. Id. In Sias, the employer told the fellow employees that the discharge of an employee in the protection department was for his misappropriation of company property — a charge that the jury found to be false. Sias and the cases following Sias are not controlling because there the publication was of a false statement. 17 In the instant case, the grievance proceedings implicitly determined, in upholding the discharge, that the communicated statement of dishonesty was true.

If an employee invokes the agreed-upon grievance procedure, the determination of an arbitrator or joint committee that the discharge was for "cause” establishes the defense of truth to a defamation action premised on statements which explain the reason for the discharge. To permit Fulghum and Morin to litigate the truth or falsity of the alleged defamatory statements would, again, be tantamount to allowing them to obtain a redetermination of the wrongfulness of their discharge.

We accept the determination of the joint committee for the limited purpose of deciding whether an employer’s communications to his employees are outside of the qualified privilege because we are of the opinion that such effect should be given to the determination of an independent arbitrator or the joint committee. The United States Supreme Court has given the same effect to the resolution of a grievance when the parties’ chosen instrument for resolving disputes is a joint committee as when it is to submit the matter to an independent arbitrator. 18 Recognizing the differences in process, we follow the lead of the United States Supreme Court in declining to draw a distinction.

IV

In sum, the determination of an independent arbitrator, or of a joint committee, that a discharged employee was guilty of misconduct (and thus that there was cause for discharge) bars an action alleging conduct by the employer incidental to and directly related to the discharge and, in effect, that the employee was not guilty of misconduct 19 because the question whether he is guilty of misconduct has been decided adversely to the employee and may not be litigated in another form or forum.

Williams, C.J., concurred with Levin, J.

1 Article 5 of the supplemental agreement to the National Master Panel Service Agreement, provides in relevant part:

"A grievance is hereby jointly defined to be any controversy, complaint, misunderstanding, or dispute arising as to interpretation, application or observance of any of the provisions of this Agreement or any Supplement or Rider hereto.

"In the event of any grievance, complaint, or dispute on the part of any employer, it shall be handled in the following manner, and a decision reached at any stage shall be ñnal and binding on both parties. (Emphasis supplied.)

"(c) If the parties fail to reach a decision or agree upon a settlement in the matter, it shall be submitted to the State Committee or ups Joint Area Committee, whichever is applicable within fifteen (15) days. Any cases not resolved at the state level should then be submitted to the ups Joint Area Committee within fifteen (15) days.

2 Fulghum v United Parcel Service, Inc, 130 Mich App 375; 343 NW2d 559 (1983).

Mastay suspended Fulghum and Morin; Shevrovich conducted the surveillance. Mastay and Shevrovich testified at the local and state hearings; only Shevrovich appeared before the ups joint-area committee.

3 See Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985).

4 Morin testified on deposition that Ed Mastay said to him upon entering the security office, "Where is the sausage? ... I am not going to fuck around with you, Bob Morin. Where is that God damn sausage?” To which Morin replied, "I told him if he could find any sausage on me that I would take him downtown and kiss his ass on the City Hall stairs.” The gist of the discussion in the office was that the employee had "messed up” — the use of the "f-word” does not justify a finding that this conduct was "outrageous.”

Fulghum testified on deposition to the following exchange when he went to Mastay’s office:

"Q. What did Mastay say to you during that meeting?

"A. 'Where is the sausage?’ I said, 'What sausage?’ — 'You know what the hell I am talking about. Where is the sausage you took home last night, Cleo? You took 35 pounds of sausage out of here.’ I said, 'Man, I don’t know what you are talking about.’

"A. He said, 'Is this the box you took the sausage out of?’ He threw the box on the table. I said, 'No.’ So the union steward started to say something and he said, 'You just shut up. Fuck off.’ So she finally got things quieted down and told him, 'Hey, I am here to represent the man. You don’t tell me to shut up. I am trying to defend this man. I am trying to get this in order.’ He said, 'Well, the hell with you.’ So then he got back to me and he said, 'This carton here, is the carton you took the sausage out of. You took the sausage home.’ I said, 'Hey, man, I don’t know what you are talking about.’ He said, 'You took 35 pounds of sausage out of here. This is the box. Right?’ I said, 'No. I don’t know what you are talking about, man.’ So it went on back and forth. And he started cursing Kathy like she was not a lady, like she was not trying to represent anybody. He went wild. Finally he said, 'To hell with it. I am terminating Cleo until further investigation.’

”Q. Did you say anything during this meeting other than what you told me?

"A He just insisted I took some sausage. I said no.”

5 Anno: Libel and slander: Privileged nature of communications made in course of grievance or arbitration procedure provided for by collective bargaining agreement, 60 ALR3d 1041.

The annotation discusses different bases for finding a privilege: 1) the collective bargaining agreement gives rise to a privilege as to communications made pursuant to its provisions; 2) the mutual interest or duty of the parties; 3) the duty of the publisher to communicate; 4) the federal or state labor policy which favors settlement of labor grievances through bargained upon processes. Other courts have found that the communication is absolutely privileged because the employee, in effect, consented to the publication at a meeting between management and union officials since the union representative was acting as the employee’s agent. See, e.g., Brockman v Detroit Diesel Allison Div, 174 Ind App 240; 366 NE2d 1201 (1977).

See also Anno: Libel and slander: Privileged nature of communication to other employees or employees’ union of reasons for plaintiffs discharge, 60 ALR3d 1080.

6 In Joftes v Kaufman, 324 P Supp 660, 662 (D DC, 1971), the court stated the principle

"that notices of dismissal for cause which are contemplated by a collective bargaining agreement and which are published by the employer only to those with a legitimate interest in the subject matter may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal.” (Emphasis added.)

7 The difference is that complete protection is afforded by absolute privilege, while a qualified or conditional privilege affords protection only in the absence of ill motive or malice in fact. 50 Am Jur 2d, Libel and Slander, § 192.

8 The New Mexico Court of Appeals adopted the doctrine of absolute immunity from liability for defamation during labor grievance arbitration proceedings in Neece v Kantu, 84 NM 700, 706; 507 P2d 447 (1973), on the rationale that the procedure is a quasi-judicial proceeding. Absolute immunity has consistently been accorded to statements made in the course of judicial proceedings. The New Mexico court quoted from a law review article discussing Mendicki:

"The grievance proceeding under a collective bargaining agreement is quite similar to a judicial or quasi-judicial proceeding. The Supreme Court has stated that the grievance procedure is 'an effort to erect a system of industrial self-government’ in which 'a new common law— the common law of a particular industry or of a particular plant’ is fashioned and applied. The grievance procedure is merely an agreed-upon substitute for legal action in a judicial forum and is actually quasi-judicial in nature.” Comment: The availability of defamation remedies for statements made during the course of labor grievance-arbitration proceedings, 15 Univ Kan L R 553, 561 (1967).

The District of Columbia Court of Appeals also found an absolute privilege applicable to testimony of a witness in an arbitration proceeding in Sturdivant v Seaboard Service System, Ltd, 459 A2d 1058, 1060 (DC App, 1983). The court explained that it favored an absolute privilege because it

"enables participants to state and support their positions without instilling a fear of retaliation, i.e., an action for damages .... To deny an absolute privilege to witnesses, parties, arbiters and counsel who participate in these proceedings, would chill the effect of the [arbitration rules]. Clearly if parties in arbitration hearings were given less protection than those in purely judicial proceedings, a disincentive would be built into the system.”

Accord Brockman v Diesel Allison Div, n 5 supra at 248, n 8, which concludes that an absolute privilege should apply to statements made at the grievance conference for the reasons stated in Mendicki.

In Rougeau v Firestone Tire & Rubber Co, 274 So 2d 454, 457, n 1 (La App, 1973), while the court’s holding was based on the plaintiff’s failure to prove the defendant had published any defamatory statement, the court similarly noted that "[e]ven if defendant [company] did publish written accusations or did make oral accusatory statements involving plaintiff [to union officials], they enjoy an unqualified privilege which does not give rise to an action for damages.”

Other states have accorded a qualified privilege to communications made in the course of, and relevant to, a federal labor grievance proceeding. In the leading case of Bird v Meadow Gold Products Corp, 60 Mise 2d 212; 302 NYS2d 701 (1969), a New York Supreme Court, looking both to New York law and to other state court decisions under the Railway Labor Act, held that statements made during grievance proceedings are protected by a qualified privilege. Bird was followed by the Alabama Supreme Court in Dunning v Boyes, 351 So 2d 883, 884 (Ala, 1977), cert den 436 US 917 (1978), where it was held to be a jury question whether the qualified privilege was abused by writing in a letter in connection with a grievance proceeding that the employee was a "known Bigot.” The Supreme Judicial Court of Massachusetts also followed Bird in Ezekiel v Jones Motor Co, Inc, 374 Mass 382; 372 NE2d 1281 (1978). A former employee sought damages for an allegedly slanderous statement made by a witness during a hearing before a joint management-union grievance board to the effect that the plaintiff had stolen a rod and reel from the employer. The Supreme Judicial Court held that where the defendants had a duty to communicate to the grievance board the reasons for terminating the employee, they enjoyed a qualified privilege.

9 The Court of Appeals, in Merritt v Detroit Memorial Hospital, 81 Mich App 279, 286; 265 NW2d 124 (1978), held that defamatory statements about an employee to a union representative communicated during grievance proceedings pursuant to a collective bargaining agreement are absolutely privileged. The union representative was acting "more or less as the agent of the plaintiff” and the plaintiff never objected to his presence. The Court viewed Merritt’s action as the equivalent of consent and the communication was therefore absolutely privileged. In contrast, publication of the reason for Merritt’s dismissal to supervisory personnel was qualifiedly privileged.

10 See Prosser, Torts (4th ed), § 114, p 777.

11 The general rule of preemption of state regulation of conduct actually or arguably prohibited as an unfair labor practice has two notable exceptions: "[W]here the activity regulated was a merely peripheral concern of the Labor Management Relations Act . . . [o]r where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” San Diego Building Trades Council v Garmon, 359 US 236, 243-244; 79 S Ct 773; 3 L Ed 2d 775 (1959). See, generally, Gorman, Labor Law, Unionization & Collective Bargaining, ch XXXII.

12 The Tenth Circuit reaffirmed Mendicki after the United States Supreme Court’s decisions in Linn and Farmer v Carpenters, 430 US 290; 97 S Ct 1056; 51 L Ed 2d 338 (1977). In Hasten v Phillips Petroleum Co, 640 F2d 274 (CA 10, 1981), Linn was distinguished in the language of Mendicki:

"The question in the Linn case was whether a libel action in the circumstances of that case 'might interfere with the national labor policy.’ The question in the instant case is whether an action for damages on account of the statement upon which the instant case is predicated, made in a conference and bargaining session to adjust an employer’s grievance, and which was clearly germane to the issue involved, would interfere with the national labor policy, and whether it is necessary to hold such statements unqualifiedly privileged to prevent impairment of that policy.” 367 F2d 71-72.

Linn was also distinguished in Brooks v Solomon, 542 F Supp 1229, 1233 (ND Ala, 1982):

"In Linn exclusive jurisdiction was unsuccessfully sought on the basis of statements arguably made during the course of what the law forbids or discourages; an unfair labor practice. While the nlkb has jurisdiction over claims of unfair labor practice, there is no federal policy reason to shield the alleged libeler from a libel made during the course of an unfair labor practice. Here the statements were made during a proceeding which, rather than being discouraged by federal law, is encouraged by federal law; federal policy being to encourage the peaceful disposition of grievance issues. While the libelous statements considered in Linn, and the context in which they were uttered, constituted conduct which was merely a 'peripheral concern’ of the nlrb, the circumstances giving rise to the action at bar involve interests which necessarily require the uniform employment of federal law in order to prevent the impairment of national labor policy.”

The district court for the District of Columbia distinguished Linn in Joftes v Kaufman, 324 F Supp 660, 664 (D DC, 1971), where the employee brought a libel action for statements in the letters of notice of dismissal, saying:

"The rationale of the Court’s decision [in Linn] was that the remedial provisions of labor law offered no possibility of relief for the injury allegedly suffered by the official .... Here, on the other hand, Joftes had available to him an opportunity through the grievance machinery to secure personal relief and vinification, and by way of an action for wrongful discharge if the grievance procedure were held not to be an exclusive remedy under the terms of the agreement. To allow him to proceed instead by way of a burdensome, expensive, vexatious libel suit against individuals who did no more than fulfill their duty to inform him of reasons for his discharge would indeed be subversive of procedures and remedies for employment disputes.”

13 The exceptions to federal preemption of state law involve actions that can be adjudicated without regard to the merits of the underlying labor controversy. Thus, in Linn, there was little risk that the state cause of action would interfere with the effective administration of national labor policy. The board’s § 8 unfair labor practice proceeding would focus only on whether the statements were misleading or coercive; whether the statements also were defamatory would be of no relevance to the board’s performance of its functions. Similarly, state court actions to redress injuries caused by violence or threats of violence are consistent with effective administration of the federal scheme. See, e.g., United Construction Workers v Laburnum Construction Corp, 347 US 656; 74 S Ct 833; 98 L Ed 1025 (1954); Youngdahl v Rainfair, Inc, 355 US 131; 78 S Ct 206; 2 L Ed 2d 151 (1957); UAW v Russell, 356 US 634; 78 S Ct 932; 2 L Ed 2d 1030 (1958) . There is no risk that state damage actions will fetter the exercise of rights protected by the nlra or procedures pursuant to the cba governed by the nlra. The Supreme Court’s holding that the claim of intentional infliction of emotional distress based on the "outrageous conduct” of union officers consisting of "frequent public ridicule,” "incessant verbal abuse,” and refusals to refer him to jobs in accordance with the rules of the hiring hall could be brought in state court does not require that we apply state law in the instant case. See, e.g., Farmer v Carpenters, 430 US 290; 97 S Ct 1056; 51 L Ed 2d 338 (1977).

14 In Teamsters Local 174 v Lucas Flour Co, 369 US 95, 104; 82 S Ct 571; 7 L Ed 2d 593 (1962), the United States Supreme Court recognized the importance of a single body of substantive law in the area embracing the adjustment of issues between employers and their employees by the peaceful process of conference and collective bargaining, and further said:

"The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy.”

15 Fulghum stated in his deposition:

"A. Well, one of the guys in the Over Goods Room asked me, 'What happened?’ I said, 'What do you mean?’ He said, 'We heard you got fired. For what?’

”Q. Did they tell you what they had heard?

"A. Yes.

"Q. What did they say?

"A. They said they heard that I got fired because of taking some sausage.

"Q. Did he tell you who told him that?

"A. No. They said they had heard.”

Morin similarly testified:

"Q. Do you know of anyone who has told you that they were told by ups that you had been discharged for dishonesty?

"A. Well, the full-time people all knew it. I imagine word got around. I don’t know how.”

16 "A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest. The essential elements thereof are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty.” 50 Am Jur 2d, Libel & Slander, § 195, pp 698-699.

17 The Court said in Sias:

"On the question of the publication of the statement we hold that in calling in fellow employees of plaintiff and 'explaining’ the circumstances of his separation, defendant corporation was serving its own particular interest. That interest, as described by defendant’s representatives, was to restore morale in the plant protection force and to quiet rumors that were circulating among its members, adversely affecting the company. These men were not supervisors, personnel department representatives, or company officials. They were simply fellow employees in the identical work. No privilege extended to the communication to them and the trial court properly so held.” Id. at 548.

Accord Poledna v Bendix Aviation Corp, 360 Mich 129, 141-142; 103 NW2d 789 (1960); Tumbarella v The Kroger Co, 85 Mich App 482, 493-494; 271 NW2d 284 (1978), lv den 406 Mich 939 (1979); Haddad v Sears, Roebuck & Co, 526 F2d 83, 85 (CA 6, 1975).

18 See General Drivers, Local 89 v Riss & Co, 372 US 517; 83 S Ct 789; 9 L Ed 2d 918 (1963), holding that, as long as the determination of the grievance procedure is contractually final and binding, it is enforceable under § 301 in federal court and the court cannot reweigh the merits of the grievance. See also Denver-Chicago Trucking Co, Inc v Kirk, 132 NLRB 1416 (1961), in which the nlrb stated it will defer to the joint committee decision if the procedures adopted meet the standards that are applied to private arbitration as set forth in Spielberg Mfg Co v Gruenberg, 112 NLRB 1080, 1082 (1955):

"[T]he proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act.”

19 Where the discharged employee files a grievance, a claim that the employer’s accusation of misconduct was communicated to other employees is based on employer conduct incidental and directly related to the discharge. A claim that an accusation of misconduct was defamatory alleges in effect that the employee was not guilty of misconduct.