In this case, we consider: (1) whether a defamatory-statement concerning the work-related conduct of one employee, made by another employee of the same corporate employer to their mutual supervisor, may be actionable; and (2) whether, for the purposes of vicarious liability, an agent of a union simultaneously can be the agent of his or her employer. The Court of Appeals held that such a statement is actionable and that an agent of the union simultaneously can be the agent of the employer.
Wallulis v. Dymowski,
The trial court granted defendants’ motion for summary judgment, ORCP 47,
1
on plaintiffs defamation claims.
2
In that procedural context, this court views the evidence that was before the trial court on summary judgment, and all reasonable inferences to be drawn from it, in the light most favorable to the nonmoving party.
Fields v. Jantec, Inc.,
In 1989, plaintiff, a supervisor with American Telephone and Telegraph Company (AT
Plaintiffs supervisor at AT&T was Rick Potter. Potter’s immediate supervisor was Bill Kastning.
A few months after plaintiff began working at the AT&T facility in Beaverton, Dymowski observed behavior that led him to believe that plaintiff abused alcohol. Dymowski noticed that plaintiff came to work late, was hard to contact during the day, and often looked as if he had a hangover. Also, other members of the work crew had complained to Dymowski about plaintiffs behavior.
Plaintiff and Dymowski did not have a congenial relationship. In February 1990, Dymowski filed a grievance against plaintiff. During that same month, Dymowski had an altercation with plaintiff concerning a matter unrelated to the grievance. Dymowski filed a second grievance against plaintiff. Management resolved both grievances.
Dymowski continued to receive complaints about plaintiff from members of plaintiffs crew. A crew member asked Dymowski to forward the crew’s complaints about plaintiffs behavior to Potter. In addition, Booze, an employee whom plaintiff had supervised at another location, told Dymowski that plaintiff was a “substance abuser.” Plaintiff presented evidence in the summary judgment record that he was not a substance or alcohol abuser.
In September 1990, AT&T required Dymowski to attend a two-day training seminar in Seattle. Potter and Kastning attended the seminar, too. Sometime during the seminar, Dymowski told Potter that he had been receiving complaints about plaintiff from members of plaintiffs crew. Dymowski told Potter that plaintiff was hard to contact during the work day and that plaintiff took long lunch hours or failed to show up at work until late in the afternoon. Dymowski also told Potter about his discussion with Booze, including Booze’s assertion that plaintiff was a substance abuser.
Kastning was present during the conversation between Dymowski and Potter. Kastning overheard everything that Dymowski said to Potter.
After that conversation, Kastning and Potter questioned other crew members about plaintiffs work performance. In October 1990, AT&T removed plaintiff from his position at the Beaverton facility. AT&T offered plaintiff another position in California. Plaintiff did not accept that offer.
Plaintiff then brought this action against Dymowski and CWA, asserting claims for intentional interference with economic relations, defamation, and “defamation with actual malice.” CWA brought a third-party action against AT&T for contribution and indemnity.
Dymowski and CWA moved for summary judgment against plaintiff. AT&T moved to dismiss CWA’s third-party complaint for failure to state a claim, ORCP 21. The trial court granted both motions.
Plaintiff appealed, and CWA cross-appealed. The Court of Appeals held, as now pertinent, that the trial court erred when it dismissed plaintiff’s claim against Dymowski and CWA for “defamation with actual malice” and that the trial court erred when it dismissed CWA’s cross-complaint against AT&T for contribution. The court otherwise affirmed the judgment of the trial court.
AT&T petitioned this court for review, arguing that the trial court did not err when it granted Dymowski’s and CWA’s motion for summary judgment and AT&T’s motion to dismiss. We allowed review. 3
To establish a claim for defamation, a plaintiff must show, first, that the defendant made a defamatory statement
about the plaintiff.
Andreason v. Guard Publishing Co.,
AT&T, CWA, and Dymowski argue that the statements made by Dymowski to Potter were not “published” and, therefore, are not actionable. Defendants assert that “a statement is not published when an employee speaks or otherwise communicates the statement to the employer’s managers or supervisors and the statement solely concerns the work behavior of another employee.” Defendants argue that that rule — dubbed in other jurisdictions the “intracor-porate nonpublication rule” — “is consistent with the logic that corporations do not publish communications to themselves.” They ask us to adopt that rule in this jurisdiction.
Plaintiff counters that the intracorporate nonpubli-cation rule is rooted in an untenable legal fiction that a corporation is a single person for purposes of the tort of defamation. Plaintiff proposes instead that a “communication made by one agent to another agent of the same principal” is published.
This court never before has addressed the specific question whether a defamatory, work-related statement by
one corporate employee about another employee to those employees’ supervisors is “published.”
See Rice v. Comteck Mfg. of Oregon, Inc.,
In some states, courts have adopted an intracorporate nonpublication rule. Those courts have concluded that, for the purpose of defamation law, agents of an employer cannot be considered third parties in relation to that employer. In
Prins v. Holland-North America Mortgage Co.,
107 Wash 206,
“Agents and employes of [the same principal] are not third persons in their relations to the corporation, within the meaning of the laws pertaining to the publication oflibels. For the time being, they are a part and parcel of the corporation itself, so much so, indeed, that their acts within the limits of their employment are the acts of the corporation. For a corporation, therefore, acting through one of its agents or representatives, to send a libelous communication to another of its agents or representatives, cannot be a publication of the libel on the part of the corporation. It is but communicating with itself.”
Nine states, including Washington, have adopted the intra-corporate nonpublication rule.
See Dixon v. Economy Co.,
477 So 2d 353, 354 (Ala 1985) (applying intracorporate nonpubli-cation rule);
Williams v. Cook,
192 Ga App 811,
On the other hand, nine states have rejected the intracorporate nonpublication rule.
See Kelly v. General Telephone Company,
136 Cal App 3d 278, 285, 186 Cal Rptr 184 (Cal App 1982) (“publication may involve internal corporate statements”);
Southern Bell Tel. & Tel. Co. v. Barnes,
443 So 2d 1085, 1086 (Fla App 1984) (holding that “publication of [defamation] can occur in intra-corporation communications”);
Welch v. Chicago Tribune Company,
34 Ill App 3d 1046,
In Lutterell, the Court of Appeals of Kansas gave a representative explanation of the decision to reject the intra-corporate nonpublication rule:
“[I]t ignores the nature of the civil injury sought to be protected in a defamation action. Damage to one’s reputation is the essence and gravamen of an action for defamation. It is reputation which is defamed, reputation which is injured, reputation which is protected by the laws of libel and slander. Certainly, damage to one’s reputation within a corporate community may be just as devastating as that effected by defamation spread to the outside. Thus, the injury caused by intracorporate defamation should not be disregarded simply because the corporation can be sued as an individual entity.”683 P2d at 1294 (citation omitted).
Commentators have not embraced the intracorporate nonpublication rule. For example, the American Law Institute has not endorsed that rule. The Restatement (Second) of Torts § 577, comment i, provides:
“The communication within the scope of his employment by one agent to another agent of the same principal is a publication not only by the first agent but also by the principal and this is true whether the principalis an individual, a partnership or a corporation.”
See also Keeton, Prosser and Keeton on the Law of Torts, § 113, at 798 (“There may be publication to any third person. It may be made to * * * the plaintiffs agent or employee. It may be made to the defendant’s own agent, employee or officer, even where the defendant is a corporation.” (footnotes omitted)). One author has written:
“The criticisms of this * * * no publication rule are well-reasoned, indeed, unanswerable. The intracorporate non-publication * * * rule ignores the fact that distinct personalities are involved within the corporate structure, that reputational damage therein ‘may be just as devastating as that effected by defamation spread to the outsider,’ and that the nonliability rule may open the door to serious abuse. Moreover, this view arbitrarily mandates differential treatment based on the adventitious choice of business associational form.” David A. Elder, Defamation: A Lawyer’s Guide, § 1:6[b], p 66 (1993) (footnotes omitted; some internal quotation marks omitted).
We are persuaded by the cited criticisms of the intracorporate nonpublication rule. The interest protected by the law of defamation is an
individual’s
interest in his or her reputation, both in the community at large and in that individual’s professional community.
See Adamson v. Bonesteele,
In summary, we reject defendants’ argument that this court should adopt the intracorporate nonpublication rule. Instead, we hold that a defamatory communication from one corporate employee to another corporate employee concerning the job performance of a third employee is “published” for the purpose of a defamation claim.
Our conclusion that Dymowski’s statements were published does not end our inquiry in this case, however. We still must determine whether those statements are (or may be) “privileged” and, if so, to what extent.
There are two forms of privilege that may apply in a defamation action; a defamatory statement may be either “absolutely privileged” or “qualifiedly privileged.”
5
An “absolute privilege” bars a claim for defamation.
See Moore v. West
Lawn Mem’l Park,
This court previously has stated that “the question of whether or not a defamatory statement is privileged, either absolutely or conditionally, depends upon the balance that the court strikes between competing interests.”
Lee v. Paulsen,
First, statements that are made as part of judicial and quasi-judicial proceedings are absolutely privileged.
See, e.g., Ducosin v. Mott,
In addition, this court has held that “there is an absolute privilege for publications that are consented to
”Lee,
“The reason for the imposition of the privilege when the plaintiff consents or requests the publication is based upon the unwillingness of the courts to let the plaintiff lay the foundation of a lawsuit for his own pecuniary gain.”273 Or at 106 (citations omitted; internal quotation marks omitted).
Christensen
suggested that a third situation gives rise to an absolute privilege — when statements are made to carry out a statutory requirement.
See
In the first kind of situation — when statements are made as part of judicial, quasi-judicial, or legislative proceedings — this court has concluded that the public’s interest in the unhampered operation of the government, when exercising such functions, outweighs an individual’s interest in the preservation of reputation. In the second kind of situation— when the plaintiff has consented to the publication — this court has found that the judicial branch of government has an interest in preventing parties from manipulating the legal system for their own gain by consenting to, but then suing on, a particular defamatory statement. That interest, too, stems from a need to preserve the integrity of the judicial function and, likewise, outweighs individuals’ reputational interests. The third kind of situation — when statements are required by statute — similarly relies on
Defamatory statements made by employees in the private sector to other employees in the private sector are unrelated to a judicial, quasi-judicial, or legislative function. Nor do the statements made here arise from plaintiffs consent or fulfill a statutory requirement. The alleged defamatory statements in this case do not fall within the classes of absolutely privileged statements previously recognized by this court.
Moreover, we are not convinced that there is a policy justification for extending an absolute privilege to the present situation. On the one hand, employees and their private employers have a legitimate interest in free communications on work-related matters, especially when reporting actual or suspected wrongdoing. On the other hand, an absolute privilege would immunize a falsehood designed to harm the object of a disgruntled employee’s wrath. When we balance the competing interests, we believe that a qualified privilege adequately protects the kinds of interests involved.
As we have stated above, a qualified privilege, unlike an absolute privilege, does not bar a defamation claim. In
Wattenburg v. United Medical Lab.,
“A statement is conditionally privileged if: (1) it was made to protect the interests of defendants; (2) it was made to protect the interests of plaintiffs employer; or (3) it was on a subject of mutual concern to defendants and the persons to whom the statement was made.” (Citing Restatement of Torts, §§ 594-96 (1938).) 6
See also Walsh v. Consolidated Freightways,
A defamatory work-related statement made by an employee to that employee’s supervisor concerning another employee’s work performance falls into either the second or third category delineated by the court in Wattenburg. Such a statement could be made to protect the interests of the employer, or it could be on a subject — such as workplace harmony — of mutual concern to the defamer and the supervisor to whom the statement was made.
As noted, this case comes to us on review of a summary judgment. Although the record on summary judgment is sufficient to establish that defendant Dymowski published a defamatory statement about plaintiff to supervisors Potter and Kastning, there remain genuine issues of material fact, ORCP 47 C, for example, as to whether defendant Dymowski lost the qualified privilege by abusing the privileged occasion.
7
Accordingly,
We next address the issue of contribution. The trial court granted AT&T’s motion to dismiss CWA’s contribution claim for failure to state a claim.
8
The Court of Appeals
reversed, concluding that both AT&T and CWA could be liable for Dymowski’s alleged defamatory statements about plaintiff, “because an agent may simultaneously serve two principals.”
AT&T asserts that the Court of Appeals erred, because “it did not take into account federal labor law in general, and the [National Labor Relations Act] in particular.” AT&T argues that, under the National Labor Relations Act (NLRA), the following rule applies: “Where * * * the ostensible agent is a union vice-president and shop steward and the two ostensible principals are a union and an employer engaged in a labor dispute, that agent can serve but one principal — the union.” (Emphasis in original.)
AT&T’s argument is premised on the assumption that, when Dymowski made the alleged defamatory statements to Potter, CWA was engaged in a “labor dispute” with AT&T. Under the NLRA:
“The term labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” 29 USC § 152(9).
From the assumption that there was a labor dispute, AT&T reasons that, “[u]nder the plain terms of the NLRA,” Dymowski, “as union vice-president and shop steward, had to have been working for CWA and its members exclusively.”
We need not address whether CWA’s third-party complaint pleaded facts to establish that a “labor dispute” existed between AT&T and CWA when Dymowski allegedly made the defamatory statements at issue in this case. AT&T’s argument fails even if a labor dispute between the parties existed at that time.
AT&T bases its conclusion — that Dymowski was working exclusively for CWA when he made the alleged defamatory statements — on its reading of the definition of “employer” contained in the NLRA. Under the NLRA, an “employer” is defined as
“any person acting as an agent of an employer, directly or indirectly, but shall not include * * * any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.” 29 USC § 152(2).
From that definition, AT&T concludes that a union’s agent cannot also be an employer’s agent. In effect, AT&T argues that the NLRA prevents a person who is both a corporate employee and a union member from acting simultaneously as the agent of the union and the agent of the employer. The United States Supreme Court recently rejected a substantially similar argument in
NLRB v. Town & Country Electric, Inc.,
516 US_,
In
Town & Country,
the Supreme Court held that a worker may be a company’s employee, within the terms of the NLRA, even if, at the same time, a union pays that worker to help the union organize employees of the company.
In Town & Country, the Court explicitly rejected the argument that “the common law of agency” required an interpretation of “employee” that excluded paid union organizers. That “argument fails, quite simply, because, in our view * * * it lacks sufficient support in common law.” Id. at 379-80. The Court went on to explain:
“Common sense suggests that as a worker goes about his ordinary tasks during a working day, say, wiring sockets or laying cable, he or she is subject to the control of the company employer, whether or not the union also pays the worker. The company, the worker, the union, all would expect that to be so. And, that being so, that union and company interests or control might sometimes differ should make no difference.” Id. at 380 (emphasis in original).
The situation presented in this case raises similar issues. In Town & Country, the union members were serving the interests of their union when they applied for employment with the company. Even though the union members were acting on behalf of the union when they applied for work (and thus were agents of the union), they also were acting as “employees” for the company. Neither the NLRA nor the common law of agency precluded dual agency.
In this case, Dymowski’s alleged comments to Potter concerning plaintiffs work-related behavior could be viewed as statements concerning “work conditions,” giving rise to a “labor dispute.” Dymowski made those statements to management at the request of his coworkers who were members of CWA and in his capacity as a union steward. Thus, he made those statements as an agent of CWA. CWA alleged, however, that Dymowski made those statements at the behest of his superiors while in the course and scope of his employment with AT&T; thus, CWA alleged facts that would be sufficient to establish that Dymowski also was acting as AT&T’s agent when he made the defamatory statements. When Dymowski spoke with Potter, he may have done so as an agent of both CWA and AT&T.
Under federal law, a union member may serve simultaneously as an agent of both a union and an employer. That is, a communication can serve two purposes, and an agent can serve two principals. The law of this jurisdiction is to the same effect.
See Blair v. United Finance Co.,
AT&T also argues that — regardless of Town & Country and common law principles of agency — if Dymowski is treated as being both AT&T’s and CWA’s agent, Dymowski and AT&T would have colluded improperly against the interests of CWA and its members, in violation of the NLRA. AT&T reasons that “employers and unions” must be “on opposite sides of any labor dispute.” That, according to AT&T, precludes the simultaneous, dual agency that CWA alleges in this case.
In support of that argument, AT&T points to two sections of the NLRA. The NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise” of their organizing rights. 29 USC § 158(a)(1).
See Garment Workers v. Quality Mfg. Co.,
As an abstract proposition, we agree with AT&T that an employer’s collusion with or domination of a union and its members would constitute an unfair labor practice in violation of the NLRA. However, that possibility simply does not arise under the particular facts alleged by CWA in this case. AT&T’s interest in learning about plaintiffs job performance, and Dymowski’s interest as a shop steward in reporting his observations about plaintiffs job performance, present no clash of employer/employee interests within the meaning of the cited statutes. Therefore, we find AT&T’s argument unpersuasive.
The decision of the Court of Appeals is affirmed. The summary judgment of the circuit court for defendants Dymowski and CWA on plaintiffs claim for defamation with actual malice is reversed. The judgment of the circuit court dismissing CWA’s claim against AT&T for contribution is reversed. The judgment is otherwise affirmed, and the case is remanded to the circuit court.
Notes
ORCP 47 B provides that a party against whom a claim is asserted may move for summary judgment. ORCP 47 D provides that, when a motion for summary judgment is made, the party adverse to that motion “must set forth specific facts showing that there is a genuine issue as to any material fact for trial.”
In his defamation claim, plaintiff alleged in part that Dymowski “published false and defamatory statements to Plaintiffs employer of and concerning Plaintiff.” That claim contains no allegation about Dymowski’s state of mind. In his separate “defamation with actual malice” claim, plaintiff incorporated by reference the gravamen of the defamation claim and also alleged that “Dymowski knew that allegations of substance abuse about Plaintiff were false, or acted in reckless disregard for the truth or falsity of those allegations.”
The Court of Appeals also held that plaintiffs claims for defamation (in the absence of actual malice) and intentional interference with economic relations were preempted by the National Labor Relations Act, 29 USC § 151
et seq.
In addition, the Court of Appeals held that CWA’s third-party complaint for contribution and indemnity against AT&T failed to state a claim for indemnity. Id. at 232-33. Accordingly, the Court of Appeals affirmed the trial court’s judgment dismissing CWA’s claim for indemnity. CWA has not appealed that aspect of the Court of Appeals’ decision, nor has CWA argued before this court that that holding was erroneous. We do not consider that aspect of the Court of Appeals’ decision on review.
Compare McGanty v. Staudenraus,
Each tort must be considered on its own terms. The interest protected by a defamation claim does not hinge on that party’s economic relationship with the defamer.
In some cases, the term “conditional privilege” is used, while in others the term “qualified privilege” is used. In this context those terms have the same meaning. In this opinion, we use “qualified privilege.”
In Wattenburg, the court adopted the concept of “conditional privilege” as embraced in the Restatement of Torts. After Wattenburg was decided, the pertinent sections of the Restatement (Second) of Torts concerning defamation were published. Except for a few changes in wording and grammar, Restatement (Second) of Torts, §§ 594-96 (1977), are identical to Restatement of Torts, §§ 594-96 (1938).
Genuine issues of material fact arise from two types of evidence that plaintiff presented in the summary judgment record.
First, plaintiff presented evidence that Dymowski was extremely angry with plaintiff over a work-related disagreement in which plaintiff told Dymowski that he had failed to follow company procedure in connection with an expense voucher. Dymowski became enraged, using obscenities and telling others that he would “tear [plaintiffs] head right off his shoulders.” Dymowski also told a member of the crew that he would “get” plaintiff.
See Wattenburg,
Second, plaintiff presented evidence that Dymowski’s personal observations had led him to believe that plaintiff had only a
drinking
problem. However, Dymowski reported to the supervisors Booze’s statement that plaintiff had a
substance abuse
problem, without verifying the accuracy of that statement. It would be permissible to infer from his belief that plaintiff had only a drinking problem that Dymowski acted recklessly when he reported Booze’s statement as to a substance abuse problem. The distinction may matter, because a substance abuse problem may imply illicit drug use, whereas alcohol abuse does not.
See Marr et al. v. Putnam et al.,
In reviewing a trial court’s grant of a motion to dismiss, we assume the truth of all well-pleaded facts alleged in the complaint and give the nonmoving party the benefit of all favorable inferences that may be drawn from those facts.
Stringer v. Car Data Systems, Inc.,