Dale v. Ohio Civil Service Employees Ass'n

• Decision Date: 30 January 1991
• Docket Number: No. 89-2047,AFL-CI,A,89-2047
• Parties: , 136 L.R.R.M. (BNA) 2898 DALE, Appellee, v. OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION et al.; American Federation of State, County and Municipal Employees,ppellant.
• Court: Ohio Supreme Court

Page 112

57 Ohio St.3d 112

567 N.E.2d 253, 136 L.R.R.M. (BNA) 2898

DALE, Appellee, v. OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION et al.; American Federation of State, County and Municipal Employees, AFL-CIO, Appellant.

No. 89-2047.

Supreme Court of Ohio.

Submitted Nov. 28, 1990.

Decided Jan. 30, 1991.

Syllabus by the Court

1. A "labor dispute" is any controversy over the terms and conditions of employment, or the representation of employees for collective bargaining purposes, regardless of whether the disputants stand in the relation of employer and employee, and regardless of whether the dispute is subject to the jurisdiction of the National Labor Relations Board, the State Employment Relations Board, or some other administrative agency. (Yeager v. Local Union 20 [1983], 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666, applied and followed.)

2. The "actual malice" standard of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, applies to defamation claims founded upon statements made by and about participants in a public-sector labor dispute. (Linn v. United Plant Guard Workers of America [1966], 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 and Yeager v. Local Union 20 [1983], 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666, applied and followed.)

Plaintiff-appellee Larry Dale was employed by the National Union of Hospital and Health Care Employees, District 1199-P (known colloquially as "1199"), as a union organizer. His job was to visit employees, talk to them about the advantages of membership in 1199, and assist them in forming local unions.

1199 competed with defendant Ohio Civil Service Employees Association ("OCSEA"), an affiliate of defendant-appellant American Federation of State, County and Municipal Employees ("AFSCME") in an election conducted by the State Employment Relations Board ("SERB") to determine the exclusive bargaining representative for the employees of Apple Creek Developmental Center in Wooster. Apple Creek is a residential treatment facility for mentally retarded persons operated by the Department of Mental Retardation and Developmental Disabilities. 1199 and AFSCME actively campaigned at Apple Creek from sometime in 1984 until the election held on October 15, 1985.

There was a lull in the Apple Creek organizing campaign in early 1985. Dale's supervisors at 1199 assigned him to attempt to organize the Wayne County Care Center ("Wayne County"), a nearby nursing home. Dale initially attempted to organize the Wayne County employees as members of 1199. Officials of 1199 eventually decided that the Wayne County employees had not shown sufficient support to justify 1199's involvement, and declined to petition SERB for a representation election. Dale met with the union supporters at Wayne County and convinced them to form an independent union which, once established, could affiliate with 1199. Dale also promised that he would act as their negotiator even if they did not affiliate with 1199.

The Wayne County employees formed the Independent Union of Care Center Workers, which was certified by SERB as their exclusive bargaining representative. The Independent Union wanted to affiliate with 1199. Tom Woodruff, an 1199 official, met with the Independent Union's members. He told them that 1199 would not affiliate with the Independent Union, and that Dale would not assist them in negotiations.

Mary Ann Lozier, the Independent Union's president, testified that the union members felt angry and betrayed after the meeting with Woodruff. They held discussions with Bill Otten, a representative of AFSCME, and eventually voted to join Ohio Council 8, an affiliate of AFSCME.

Otten later told Sandy Swank, an AFSCME organizer working at Apple Creek, about the situation at Wayne County. At Otten's urging, Swank telephoned Lozier to learn Lozier's version of events. During this conversation, Swank drafted what has become known as the "Larry Dale Lied" leaflet. A reproduction of the leaflet is appended to this opinion.

With Lozier's authorization, Swank signed Lozier's name to the leaflet and distributed copies of it. A copy was posted in a locked, glassed-in bulletin board at Apple Creek reserved for union notices. The leaflet was left on display for several days before the election.

In 1986, Dale filed an action against OCSEA, AFSCME, and two Apple Creek officials, alleging that he had been defamed by the "Larry Dale Lied" leaflet. The trial court granted summary judgment for the Apple Creek officials, and directed a verdict for OCSEA. The jury returned a verdict for Dale against AFSCME, awarding $1,000 nominal and $14,000 punitive damages. The Court of Appeals for Franklin County affirmed.

This cause is before the court upon the allowance of a motion to certify the record.

Larry Dale, pro se.

Linda K. Fiely, Kirschner, Weinberg & Dempsey, Richard Kirschner and Robert D. Lenhard, for appellant.

HERBERT R. BROWN, Justice.

In this case, we must determine what standard applies to a defamation claim founded on statements made in the course of a union election, and whether Dale may recover under the appropriate standard. For the reasons which follow, we conclude that an "actual malice" standard applies, and that Dale has not presented sufficient evidence to recover under this standard. Accordingly, we reverse the courts below and enter judgment for AFSCME.

I Standard of Proof Required in Defamation Claims Arising From Statements Made During Union Representation Elections Conducted Under SERB Jurisdiction

At common law, a defendant was strictly liable for publishing a defamatory statement unless he could prove that the statement was true or that it was protected by some privilege. Prosser & Keeton, Torts (5 Ed.1984) 804, Section 113. In response to First Amendment concerns, American courts substantially altered the common-law standard of liability. The plaintiff in a defamation case now has the burden of proving both that the statement was false and the defendant was at least negligent in publishing it. See Lansdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio St.3d 176, 178-180, 512 N.E.2d 979, 982-983, and cases therein cited. In Lansdowne, supra, we took the further step of imposing a "clear and convincing" standard of proof on plaintiffs in all defamation cases. Id. at 180-181, 512 N.E.2d at 983-985.

In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the United States Supreme Court established an even stricter rule for certain defamation cases. The stricter rule has come to be known as the "actual malice" standard. New York Times involved a suit by an elected city official of Montgomery, Alabama, over an allegedly defamatory political advertisement criticizing the city's treatment of civil rights protestors. Id. at 256-258, 84 S.Ct. at 713-714. The court held that the First Amendment limits "a State's power to award damages for libel in actions brought by public officials against critics of their official conduct." Id. at 283, 84 S.Ct. at 727. In order to protect the "vigor and * * * variety of public debate," the Constitution "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-280, 84 S.Ct. at 726.

Where the "actual malice" standard is applicable, and the trial results in a verdict for the plaintiff, appellate courts are required to independently review the evidence. Id. at 284-286, 84 S.Ct. at 728-729; Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 510-511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502; see, also, State, ex rel. Pizza, v. Strope (1990), 54 Ohio St.3d 41, 560 N.E.2d 765 (judgment in trial court which, if erroneous, would not result in suppression of protected speech does not receive de novo review); Lansdowne, supra, 32 Ohio St.3d at 181, 512 N.E.2d at 985 (independent review not required where "actual malice" standard does not apply). Here, we must first decide whether the "actual malice" standard applies to the alleged defamation.

A Application of the "Actual Malice" Standard to Private-Sector Labor Disputes

In Linn v. United Plant Guard Workers (1966), 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582, the court imposed the "actual malice" standard on state law defamation claims arising out of labor disputes subject to the jurisdiction of the National Labor Relations Board ("NLRB"). To achieve this end, the court specifically incorporated the standards set in New York Times v. Sullivan, supra. The court did so, not out of constitutional necessity, but as a means of accommodating the sometimes competing policies of the National Labor Relations Act ("NLRA") and state defamation law. Id. at 65, 86 S.Ct. at 664. A major objective of the NLRA is to encourage free and vigorous discussion of labor-management issues. Id. at 62, 86 S.Ct. at 663. State defamation law is intended to redress injuries to personal reputations. Id. at 63-64, 86 S.Ct. at 663-664. In order to balance these interests, and to prevent the use of threatened defamation suits as economic weapons, the court held that the plaintiff in such a suit must show that the defamatory statement was published with actual malice and caused the plaintiff actual damage. Id. at 64-65, 86 S.Ct. at 664; see, also, Farmer v. United Brotherhood of Carpenters & Joiners of America (1977), 430 U.S. 290, 305-306, 97 S.Ct. 1056, 1066, 51 L.Ed.2d 338 ("The potential for undue interference with federal regulation would be intolerable if state tort recoveries could be based on the type of robust language and clash of strong personalities that may be commonplace in various labor contexts."); Old Dominion Branch No. 496 v. Austin (1974), 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (applying Linn rule to labor dispute involving...