Linn v. United Plant Guard Workers of America, Local 114/Opinion of the Court

The case before us presents the question whether, and to what extent, the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C. § 141 et seq. (1964 ed.), bars the maintenance of a civil action for libel instituted under state law by an official of an employer subject to the Act, seeking damages for defamatory statements published during a union organizing campaign by the union and its officers. The District Court dismissed the complaint on the ground that the National Labor Relations Board had exclusive jurisdiction over the subject matter. It held that such conduct 'would arguably constitute an unfair labor practice under Section 8(b)' of the Act and that San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), compelled a dismissal on preemption grounds. The Court of Appeals affirmed, 337 F.2d 68, assuming without deciding that the statements in question were 'false, malicious, clearly libelous and damaging to plaintiff, Linn, albeit they were relevant to the union's campaign.' At p. 69. We granted certiorari, 381 U.S. 923, 85 S.Ct. 1558, 14 L.Ed.2d 682. We conclude that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him. The judgment is, therefore, reversed.

Petitioner Linn, an assistant general manager of Pinkerton's National Detective Agency, Inc., filed this suit against the respondent union, two of its officers and a Pinkerton employee, Leo J. Doyle. The complaint alleged that, during a campaign to organize Pinkerton's employees in Detroit, the respondents had circulated among the employees leaflets which stated inter alia:

'(7) Now we find out that Pinkerton's has had a large volume     of work in Saginaw they have had it for years.

'United Plant Guard Workers now has evidence

'A. That Pinkerton has 10 jobs in Saginaw, Michigan.

'B. Employing 52 men.

'C. Some of these jobs are 10 yrs. old!

'(8) Make you feel kind sick & foolish.

'(9) The men in Saginaw were deprived of their right to vote     in three N.L.R.B. elections. Their names were not summitted     (sic). These guards were voted into the Union in 1959! These     Pinkerton guards were robbed of pay increases. The Pinkerton     manegers (sic) were lying to us-all the time the contract was      in effect. No doubt the Saginaw men will file criminal     charges. Somebody may go to Jail!'

The complaint further alleged that Linn was one of the managers referred to in the leaflet, and that the statements in the leaflet were 'wholly false, defamatory and untrue' as respondents well knew. It did not allege any actual or special damage but prayed for the recovery of $1,000,000 on the ground that the accusations were libelous per se. Federal jurisdiction was based on diversity of citizenship.

All respondents, save Doyle, moved to dismiss, asserting that the subject matter was within the exclusive jurisdiction of the Board. The record indicates that prior to the institution of this action Pinkerton had filed unfair labor practice charges with the Regional Director of the Board, alleging that the distribution of the leaflets, as well as other written material, had restrained and coerced Pinkerton's employees in the exercise of their § 7 rights, in violation of § 8(b)(1)(A) of the Act. The Regional Director refused to issue a complaint. Finding that the leaflets were circulated by Doyle, who was 'not an officer or member of the charged union, nor was there any evidence that he was acting as an agent of such union,' he concluded that the union was not responsible for the distribution of the leaflets and that the charge was, therefore, 'wholly without basis.' This ruling was sustained by the General Counsel of the Board some two months after this suit was filed.

In an unpublished opinion the District Judge dismissed the complaint holding, as we have already noted, that even if the union were responsible for distributing the material the case was controlled by Garmon, supra. The Court of Appeals affirmed, limiting its holding 'to a suit for libelous statements growing out of and relevant to a union's campaign to organize the employees of an employer subject to the National Labor Relations Act.' At 72.

The question before us has been a recurring one in both state and federal tribunals, involving the extent to which the National Labor Relations Act, as amended, supersedes state law with respect to libels published during labor disputes. Its resolution entails accommodation of the federal interest in uniform regulation of labor relations with the traditional concern and responsibility of the State to protect its citizens against defamatory attacks. The problem is aggravated by the fact that the law in many States presumes damages from the publication of certain statements characterized as actionable per se. Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language. Cafeteria Employees Union, etc. v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 127, 88 L.Ed. 58 (1943). It is therefore necessary to determine whether libel actions in such circumstances might interfere with the national labor policy.

Our task is rendered more difficult by the failure of the Congress to furnish precise guidance in either the language of the Act or its legislative history. As Mr. Justice Jackson said for a unanimous Court in Garner v. Teamsters, etc., Union, 346 U.S. 485, 488, 74 S.Ct. 161, 164, 98 L.Ed. 228 (1953): 'The * *  * Act *  *  * leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.'

The Court has dealt with specific pre-emption problems arising under the National Labor Relations Act on many occasions, going back as far as Allen-Bradley Local No. 1111, etc. v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942). However, in framing the pre-emption question before us we need look primarily to San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). There in most meticulous language this Court spelled out the 'extent to which the variegated laws of the several States are displaced by a single, uniform, national rule * *  * .' At 241, 79 S.Ct. at 777. The Court emphasized that it was for the Board and the Congress to define the 'precise and closely limited demarcations that can be adequately fashioned only by legislation and administration,' while '(o)ur task is confined to dealing with classes of situations.' At 242, 79 S.Ct. at 778. In this respect, the Court concluded that the States need not yield jurisdiction 'where 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.' At 243-244, 79 S.Ct. at 779. In short, as we said in Local 100 of United Ass'n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 693-694, 83 S.Ct. 1423, 1425, 10 L.Ed.2d 638 (1963):

'(I)n the absence of an overriding state interest such as     that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of      the National Labor Relations Board in cases in which the      activity that is the subject matter of the litigation is      arguably subject to the protections of § 7 or the      prohibitions of § 8 of the National Labor Relations Act. This     relinquishment of state jurisdiction *  *  * is essential 'if      the danger of state interference with national policy is to      be averted,' *  *  * and is as necessary in a suit for damages      as in a suit seeking equitable relief. Thus the first     inquiry, in any case in which a claim of federal preemption      is raised, must be whether the conduct called into question      may reasonably be asserted to be subject to Labor Board      cognizance.'

We note that the Board has given frequent consideration to the type of statements circulated during labor controversies, and that it has allowed wide latitude to the competing parties. It is clear that the Board does not 'police or censor propaganda used in the elections it conducts, but rather leaves to the good sense of the voters the appraisal of such matters, and to opposing parties the task of correcting inaccurate and untruthful statements.' Stewart-Warner Corp., 102 N.L.R.B. 1153, 1158 (1953). It will set aside an election only where a material fact has been misrepresented in the representation campaign; opportunity for reply has been lacking; and the misrepresentation has had an impact on the free choice of the employees participating in the election. Hollywood Ceramics Co., 140 N.L.R.B. 221, 223-224 (1962); F. H. Snow Canning Co., 119 N.L.R.B. 714, 717-718 (1957). Likewise, in a number of cases, the Board has concluded that epithets such as 'scab,' 'unfair,' and 'liar' are commonplace in these struggles and not so indefensible as to remove them from the protection of § 7, even though the statements are erroneous and defame one of the parties to the dispute. Yet the Board indicated that its decisions would have been different had the statements been uttered with actual malice, 'a deliberate intention to falsify' or 'a malevolent desire to injure.' E.g., Bettcher Mfg. Corp., 76 N.L.R.B. 526 (1948); Atlantic Towing Co., 75 N.L.R.B. 1169, 1170-1173 (1948). In sum, although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false. See Maryland Drydock Co. v. National Labor Relations Board, 183 F.2d 538 (C.A.4th Cir. 1950). In such case the one issuing such material forfeits his protection under the Act. Walls Manufacturing Co., 137 N.L.R.B. 1317, 1319 (1962).

In the light of these considerations it appears that the exercise of state jurisdiction here would be a 'merely peripheral concern of the Labor Management Relations Act,' provided it is limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false. Moreover, we believe that 'an overriding state interest' in protecting its residents from malicious libels should be recognized in these circumstances. This conclusion is buttressed by our holding in United Construction Workers, etc. v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954), where Mr. Justice Burton writing for the Court held:

'To the extent * *  * that Congress has not prescribed      procedure for dealing with the consequences of tortious      conduct already committed, there is no ground for concluding      that existing criminal penalties or liabilities for tortious      conduct have been eliminated. The care we took in the Garner case to     demonstrate the existing conflict between state and federal      administrative remedies in that case was, itself, a      recognition that if no conflict had existed, the state      procedure would have survived.' At 665, 74 S.Ct. at 838.

In International Union, United Automobile, etc. Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958), we again upheld state jurisdiction to entertain a compensatory and punitive damage action by an employee for malicious interference with his lawful occupation. In each of these cases the 'type of conduct' involved, i.e., 'intimidation and threats of violence,' affected such compelling state interests as to permit the exercise of state jurisdiction. Garmon, supra, 359 U.S. at 248, 79 S.Ct. at 781. We similarly conclude that a State's concern with redressing malicious libel is 'so deeply rooted in local feeling and responsibility' that it fits within the exception specifically carved out by Garmon.

We acknowledge that the enactment of § 8(c) manifests a congressional intent to encourage free debate on issues dividing labor and management. And, as we stated in another context, cases involving speech are to be considered 'against the background of a profound * *  * commitment to the principle that debate *  *  * should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.' New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). Such considerations likewise weigh heavily here; the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in any context. After all, the labor movement has grown up and must assume ordinary responsibilities. The malicious utterance of defamatory statements in any form cannot be condoned, and unions should adopt procedures calculated to prevent such abuses.

Nor should the fact that defamation arises during a labor dispute give the Board exclusive jurisdiction to remedy its consequences. The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the Board might find that an employer or union violated § 8 by deliberately making false statements, or that the issuance of malicious statements during an organizing campaign had such a profound effect on the election as to require that it be set aside, it looks only to the coercive or misleading nature of the statements rather than their defamatory quality. The injury that the statement might cause to an individual's reputation-whether he be an employer or union official-has no relevance to the Board's function. Cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940). The Board can award no damages, impose no penalty, or give any other relief to the defamed individual.

On the contrary, state remedies have been designed to compensate the victim and enable him to vindicate his reputation. The Board's lack of concern with the 'personal' injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for pre-emption. As stressed by The Chief Justice in his dissenting opinion in Russell, supra:

'The unprovoked infliction of personal injuries during a     period of labor unrest is neither to be expected nor to be      justified, but economic loss inevitably attends work      stoppages. Fruthermore, damages for personal injuries may be     assessed without regard to the merits of the labor      controversy *  *  * .' At 649, 78 S.Ct. at 941.

Judicial condemnation of the alleged attack on Linn's character would reflect no judgment upon the objectives of the union. It would not interfere with the Board's jurisdiction over the merits of Furthermore, damages for personal

But it has been insisted that not only would the threat of state libel suits dampen the ardor of labor debate and truncate the free discussion envisioned by the Act, but that such suits might be used as weapons of economic coercion. Moreover, in view of the propensity of juries to award excessive damages for defamation, the availability of libel actions may pose a threat to the stability of labor unions and smaller employers. In order that the recognition of legitimate state interests does not interfere with effective administration of national labor policy the possibility of such consequences must be minimized. We therefore limit the availability of state remedies for libel to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused him damage.

The standards enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), are adopted by analogy, rather than under constitutional compulsion. We apply the malice test to effectuate the statutory design with respect to pre-emption. Construing the Act to permit recovery of damages in a state cause of action only for defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false guards against abuse of libel actions and unwarranted intrusion upon free discussion envisioned by the Act.

As we have pointed out, certain language characteristic of labor disputes may be held actionable per se in some state courts. These categories of libel have developed without specific reference to labor controversies. However, even in those jurisdictions, the amount of damages which may be recovered depends upon evidence as to the severity of the resulting harm. This is a salutary principle. We therefore hold that a complainant may not recover except upon proof of such harm, which may include general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law. The fact that courts are generally not in close contact with the pressures of labor disputes makes it especially necessary that this rule be followed. If the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial. Likewise, the defamed party must establish that he has suffered some sort of compensable harm as a prerequisite to the recovery of additional punitive damages.

Since the complaint here does not make the specific allegations that we find necessary in such actions, leave should be given Linn on remand to amend his complaint, if he so desires, to meet these requirements. In the event of a new trial he, of course, bears the burden of proof of such allegations.

Finally, it has been argued that permitting state action here would impinge upon national labor policy because the availability of a judicial remedy for malicious libel would cause employers and unions to spurn appropriate administrative sanctions for contemporaneous violations of the Act. We disagree. When the Board and state law frown upon the publication of malicious libel, albeit for different reasons, it may be expected that the injured party will request both administrative and judicial relief. The Board would not be ignored since its sanctions alone can adjust the equilibrium disturbed by an unfair labor practice. If a malicious libel contributed to union victory in a closely fought election, few employers would be satisfied with simply damages for 'personal' injury caused by the defamation. An unsuccessful union would also seek to set the election results aside as the fruits of an employer's malicious libel. And a union may be expected to request similar relief for defamatory statements which contribute to the victory of a competing union. Nor would the courts and the Board act at cross purposes since, as we have seen, their policies would not be inconsistent.

As was said in Garrison v. State of Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125: '(T)he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.' We believe that under the rules laid down here it can be appropriately redressed without curtailment of state libel remedies beyond the actual needs of national labor policy. However, if experience shows that a greater curtailment, even a total one, should be necessary to prevent impairment of that policy, the Court will be free to reconsider today's holding. We deal here not with a constitutional issue but solely with the degree to which state remedies have been pre-empted by the Act.

Reversed and remanded.

Mr. Justice BLACK, dissenting.