NOT FOR PUBLICATION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

3 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

-2- 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,

-3- 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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