Linn v. United Plant Guard Workers of America, Local 114/Dissent Fortas

Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.

In my opinion, the Court's decision in the present case opens a major breach in the wall which has heretofore confined labor disputes to the area and weaponry defined by federal labor law, except where violence or intimidation is involved. By arming the disputants with the weapon of libel suits and the threat of punitive damages the Court jeopardizes the measure of stability painstakingly achieved in labor-management relations. It introduces a potentially disruptive device into the comprehensive structure created by Congress for resolving these disputes. In so doing, the Court not only sanctions an arrangement inconsistent with the intent of Congress, but, I think, departs from its own decisions narrowly limiting the occasions on which the disputants may, outside of the statutory framework, litigate issues arising in labor disputes.

In my judgment, the structure provided by Congress for the handling of labor-management controversies precludes any court from entertaining a libel suit between parties to a labor dispute or their agents where the allegedly defamatory statement is confined to matters which are part of the fabric of the dispute. The present controversy is just such a case.

Petitioner Linn is an officer of the employer sought to be organized by respondent union. The allegedly defamatory statements, set out in the opinion of the Court, relate to management conduct during the course of the dispute. The leaflets in question allegedly accuse management of lying both to the NLRB and to employees in order to deprive some employees of their right to vote in NLRB elections and to certain pay increases.

As an illustration of the kind of hyperbole characteristic of labor-management strife, this 'libel' is hardly incendiary. To the experienced eye, it is pale and anemic when compared with the rich and colorful charges freely exchanged in the heat of many labor disputes.

In response to such a pallid 'libel,' the Court today holds that petitioner, perceiving himself the target of a purportedly false and defamatory statement, may sue the union and several of its officers for damages-so long as he pleads that the statement is defamatory, was made with malice, and caused some injury to him. Should he succeed in clearing the hurdles thus set in his path, he may recover not only compensation for his 'injuries,' but punitive or exemplary damages as well. These requirements that petitioner plead and prove both malice and special damages-arising from what I regard as the Court's well-founded concern that libel suits might otherwise 'pose a threat to the stability of labor unions and smaller employers'-may be cold comfort to the potential defendant in a libel suit. 'Malice,' which the Court defines as a deliberate intention to falsify or a malevolent desire to injure, is, after all, a largely subjective standard, responsive to the ingenuity of trial counsel and the predilections of judge and jury. And 'injury' resulting from words is not limited to tangible trauma. These requirements afford dubious defense on a battlefield from which the qualified umpire-the NLRB has been removed. In a libel suit, the outcome is determined by standards alien to the subject matter of labor relations, by considerations which do not take into account the complex and subtle values that are at stake, and by a jury unfamiliar with the quality of rhetoric customary in labor disputes. The outcome, in fact, is more apt to reflect immediate community attitudes toward unionization than appreciation for the underlying, long-term perplexities of the interplay of management and labor in a democratic society.

Until today, the decisions of this Court have consistently held that the federal structure for resolving labor disputes may not be breached or encumbered by state remedies where the tortious conduct allegedly involved is either protected or prohibited by federal labor legislation, or even 'arguably subject to' federal law -and despite the inability of the NLRB to redress the pecuniary harm suffered by the victime. In Garner v. Teamsters, etc., Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228, the Court held that state courts may not enjoin peaceful picketing where plaintiff's grievance is within the jurisdiction of the NLRB. In Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601, the Court held that even where the NLRB declines to exercise its conceded jurisdiction over a labor dispute 'affecting commerce,' a parallel remedy before a state board is nonetheless pre-empted. And in San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the Court concluded that state courts may not award damages for peaceful picketing, although the conduct involved was only 'arguably subject' to the federal statute and despite the NLRB's decision not to exercise jurisdiction. See also Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347; Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; Local No. 438, Constr. & General Laborers' Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514. Today marks the first departure from what has become a well-established rule that only where the public's compelling interest in preventing violence or the threat of violence is involved can the exclusiveness of the federal structure for resolving labor disputes be breached. As was said in Garmon, 359 U.S., at 247, 79 S.Ct., at 780: 'Even the States' salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme.' The majority's opinion fails to make clear why the participant's interest in protecting his reputation from the sting of words uttered as part of a labor dispute is a compelling concern which this Court must allow the States to protect, while his interest in preserving his economic well-being from illegal picketing is not.

By narrowly restricting the permissible exceptions to the general rule of preemption and by excluding generally the right to compensation for purely private wrongs, the Court has contributed to the Nation's success in domesticating the potentially explosive warfare between labor and management. The decision announced today threatens the degree of equilibrium which has been achieved. I think that the Court's decision both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.

I find support for my view in the evidence as to the intent of Congress. As the majority concedes, Congress has in unmistakable terms recognized the importance of labor-management dialogue untrammelled by fear of retribution for strong utterances. It has manifested awareness that lusty speech provides a useful safety valve for the tensions which often accompany these controversies. For example, Congress has provided that an unfair labor practice charge may not be based on the 'expressing of any views, argument, or opinion * *  * if such expression contains no threat of reprisal or force or promise of benefit.' 29 U.S.C. § 158(c) (1964 ed.). And one of its statutes, 29 U.S.C. § 411(a)(2) (1964 ed.), has been construed to prevent unions from disciplining members who utter defamatory statements during the course of internal union disputes. Salzhandler v. Caputo, 316 F.2d 445 (C.A.2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275; Cole v. Hall, 339 F.2d 881 (C.A.2d Cir.); Stark v. Twin City Carpenters Dist. Council, 219 F.Supp. 528 (D.C.D.Minn.). Where Congress wishes to create an exception to the general rule of exclusive NLRB jurisdiction, it does so explicitly. See 29 U.S.C. § 187 (1964 ed.), authorizing suits for damages arising out of violations of 29 U.S.C. § 158, and 29 U.S.C. § 164, authorizing judicial remedies where the NLRB declines to assert jurisdiction under 29 U.S.C. § 151 (1964 ed.).

The foregoing considerations do not apply to the extent that the use of verbal weapons during labor disputes is not confined to any issue in the dispute, or involves a person who is neither party to nor agent of a party to the dispute. In such instances, perhaps the courts ought to be free to redress whatever private wrong has been suffered. But this is not such a case. The fact that the Court today rules that, after appropriate amendment of the complaint, a libel action may be maintained on the basis of the circumscribed accusation contained in the leaflet in question demonstrates how very substantial is the breach opened in the wall which has heretofore insulated labor disputes from the vagaries of lawsuits. I would affirm the decision below.