No Claim For Libel When Union Compiles List of "Scabs"
January 1, 2000
The Eleventh Circuit Court of Appeals added its voice to the increasingly
sensitive arena of federal labor law and state law libel/defamation. The
Eleventh Circuit, in Dunn v. Air Line Pilots Association, (11th Cir., Oct. 25,
1999), outlined the applicable analysis in evaluating allegations that one side
used words, not as a legitimate tool, but as an unfair weapon in a labor
dispute.
In Dunn, the pilot's union called a sympathy strike against Eastern Airlines
in 1989. While most of Eastern's pilots refused to work, a substantial number
crossed the picket line and flew during the strike. The pilot's union compiled a
"scabs" list, a list of pilots who worked during the sympathy strike,
and distributed 50,000 copies of the list after the strike ended. A group of
airline pilots who flew during the strike sued the pilot's union alleging, among
other causes of action, that the union libeled them when the union listed them
as "scabs."
The United State Supreme Court held in Old Dominion Branch No. 496, Nat'l.
Ass'n of Letter Carriers v. Austin (1974) that state libel and defamation law is
partially preempted by federal labor law when the state libel/defamation claim
is asserted in the context of a labor dispute. The rationale for the preemption
rule is that labor policy "favors free speech, open communication and
robust debate...."
The Dunn court recognized that the U.S. Supreme Court has addressed several
questions about how the pre-emption rule in labor-defamation cases has changed
the litigation landscape. Most importantly, the Court incorporated the actual
malice test into labor libel analysis that was originally used in defamation
cases involving public figures and issues of public concern and first adopted in
New York Times v. Sullivan (1964). The Court also consistently expanded the type
of labor activities included in the pre-emption doctrine. Currently, almost all
organized labor or union activities fall within the labor preemption rule when
evaluating state libel claims.
To prevail on a libel/defamation claim in a labor dispute, a plaintiff must
show that the person or organization such as a union or company acted with
actual malice. Actual malice means that one must have made the statement
"with knowledge that it was false or with reckless disregard or whether it
was false or not." The plaintiff also must make this showing by clear and
convincing evidence.
In Dunn, the Court of Appeals held that labeling the pilots who crossed the
picket line "scabs" was factually true (i.e., the pilots did cross the
picket line to work). In addition, the court in Dunn found no evidence that the
defendants subjectively believed that the pilots labeled "scabs" were
not really "scabs." In the end, the Dunn court affirmed summary
judgment for the union and dismissed the libel claim.
The Dunn case has repercussions for corporations that face ongoing labor
issues and strong unions. The Dunn case, in the name of promoting free speech,
gives both management and labor great latitude in advancing their causes
directly and indirectly in labor negotiations. However, often the issue for
corporations and management is how to stop, or at least minimize, the unfair use
of strong language and allegations of corporate misconduct that often typify
labor activities during strikes or periods of labor conflict. The Dunn case
limits the ability of a company to use state libel claims to reign in overly
aggressive and vocal labor organizations. The clear message of Dunn is that
federal labor preemption in the area of libel law is alive and well in the
Eleventh Circuit.
For more information please call Michael McAuliffe at 1-888-688-8500.
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