Local Lodge 1297, Intern. Ass'n of Machinists & Aerospace Workers v. Allen, 85-176

• Decision Date: 19 March 1986
• Docket Number: No. 85-176,85-176
• Court: Ohio Supreme Court
• Parties: , 121 L.R.R.M. (BNA) 3467, 54 USLW 2559, 122 Lab.Cas. P 56,981, 22 O.B.R. 407 LOCAL LODGE 1297, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS et al., Appellants, v. ALLEN et al., Appellees.

Page 228

22 Ohio St.3d 228

490 N.E.2d 865, 121 L.R.R.M. (BNA) 3467, 54 USLW 2559,

122 Lab.Cas. P 56,981, 22 O.B.R. 407

LOCAL LODGE 1297, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS et al., Appellants, v. ALLEN et al., Appellees.

No. 85-176.

Supreme Court of Ohio.

March 19, 1986.

Syllabus by the Court

1. Where an employee has reason to know of his legal option merely to tender dues rather than to join a union and the employee proceeds to join the union, the member is thereby bound by union rules and regulations.

2. Although the National Labor Relations Act does not pre-empt a state's recognition of causes of action for intentional infliction of emotional distress or invasion of privacy, neither cause of action may be predicated on the mere use of federally protected language in the context of a labor dispute.

In 1980, Local Lodge 1297, International Association of Machinists & Aerospace Workers ("the Union") conducted a lawful strike against the F.E. Myers Pump Company. Appellee union members initially honored the strike, but later crossed picket lines and returned to work. During the remainder of the strike and for some time after the strike ended, individual appellees suffered several incidents of property damage and each was repeatedly called a "scab" by appellant union officers and various union members.

At the conclusion of the strike, the Union levied fines against appellees for conduct unbecoming a union member, namely, crossing the Union's picket line during a lawful strike. Those fines were levied pursuant to the Union's constitution, which permits the discipline of members for accepting employment in any capacity where a strike is in progress.

This action began as the Union's attempt to collect those fines. Defendant union members answered, denying liability for the fines on the ground that defendants were not voluntary members of the Union and were thus not bound by the Union's constitution. In addition, defendant union members brought counterclaims against the Union and appellant union officers, alleging invasion of privacy, intentional infliction of emotional distress, and breach of the Union's duty of fair representation.

The trial court rendered judgment based on a jury verdict against the Union on the complaint in the Union's original action to collect fines, and judgment in the total amount of more than $72,000 against the Union and its officers on all counterclaims. The court of appeals reversed the judgment as to the Union's breach of the duty of fair representation, but affirmed the judgment of the trial court as to all other issues. No appeal to this court was taken as to the Union's duty of fair representation.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Gaines & Stern Co., L.P.A., and David Roloff, Cleveland, for appellants.

Calhoun, Benzin, Kademenos & Heichel and James A. Calhoun, Nat. Right to Work Legal Defense Foundation, Inc., Mansfield, and Glenn M. Taubman, Roslyn, N.Y., for appellees.

CLIFFORD F. BROWN, Justice.

This appeal requires us to review a jury verdict which dealt with the Union's claims for fines and certain union members' counterclaims for invasion of privacy and intentional infliction of emotional distress. We address those issues in reverse order.

I

The first issue for review is the lawfulness of the jury's verdict on the various counterclaims. By their counterclaims, defendants sought to state claims against the Union and several union officers, inter alia, for invasion of privacy and intentional infliction of emotional distress. The trial court granted judgment on the jury's verdict against the Union and its officers as to all such claims, and the court of appeals affirmed. In support of these purported claims, counterclaimants (appellees) offered two types of evidence: evidence that several counterclaimants suffered certain property damage; and evidence that all counterclaimants had suffered verbal abuse related to their crossing of the Union's lawful picket line. The Union and its officers (appellants) urge, on several bases, that the judgment is contrary to law. In essence, appellants first claim that the vast majority of evidence of verbal abuse constituted the mere use of the epithet "scab," which is federally protected speech, and second, appellants claim that insufficient evidence was presented to link any property damage to the Union or any of its officers.

At the outset, appellants admit that they failed to raise below any argument that their speech was federally protected. Appellees strongly urge this court to decline review on that basis here. However, where, as here, the record reveals that the overwhelming majority of evidence presented to the jury consisted of federally protected speech, the failure of both the trial and appellate courts to recognize the character of the evidence is, as appellants insist, plain error which requires review by this court to remedy a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804 ; Reichert v. Ingersoll (1985), 18 Ohio St.3d 220, 480 N.E.2d 802.

Thus, the threshold issue is whether use of the epithet "scab" may underpin a state tort action. In Old Dominion Branch No. 496 v. Austin (1974), 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745, non-union letter carriers brought a libel action against local and national letter carrier unions based on union publications which labeled the plaintiffs as "scabs." The United States Supreme Court overturned judgments in favor of the non-union letter carriers, holding that use of the epithet "scab" was protected by federal law. The court observed that Section 7 of the NLRA protects a union's freedom of speech, particularly in an organizational context. Thus, although Linn v. United Plant Guard Workers (1966), 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582, held that federal labor law does not completely pre-empt the application of state laws to libels published during labor disputes, such state tort actions simply cannot be founded upon use of language which is federally protected, such as the epithet "scab." In the words of the court: "[i]t should be clear that the newsletter's use of the epithet 'scab' was protected under federal law and cannot be the basis of a state libel judgment. * * * To be sure, the word is most often used as an insult or epithet. But Linn recognized that federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point." Old Dominion, 418 U.S. at 282-283, 94 S.Ct. at 2780. In Farmer v. United Brotherhood of Carpenters & Joiners (1977), 430 U.S. 290, 305-306, 97 S.Ct. 1056, 1066, 51 L.Ed.2d 338, the court further observed that " * * * [t]he 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. * * * "

When this court recognized torts for invasion of privacy and for intentional infliction of emotional distress, we emphasized that not every indignity would be actionable. Because it arose in the context of a labor dispute, our opinion in Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 453 N.E.2d 666, is particularly instructive. There, at 375, 453 N.E.2d 666, we observed that " ' * * * liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. * * * ' " Certainly, appellees must be required to endure the use of language which enjoys federal protection. Therefore, we hold that although the National Labor Relations Act does not pre-empt a state's recognition of causes of action for intentional infliction of emotional distress or invasion of privacy, neither cause of action may be predicated on the mere use of federally protected language in the context of a labor dispute. See Farmer, supra.

Appellees' assertion that the language at issue lost its protected character at the end of the strike is also without merit. The term "labor dispute," as defined in Section 152(9), Title 29, U.S.Code, is certainly broad enough to encompass the name-calling in this case. Much as a glass of water may be viewed by some as half-full and by others as half-empty, what appellees would characterize as post-strike activity, appellants insist is ongoing organization in preparation for future contract negotiations. This court recognizes that to be repeatedly called a "scab" is, to say the least, unpleasant. However, in a union context, that name-calling simply does not rise to an actionable tort.

Appellees would argue that this case does not present an issue of pure speech; rather, the Union's conduct of shrieking and jeering, coupled with frequent threats and property damage, together form the basis of appellees' tort action. The record belies appellees' argument. The overwhelming majority of testimony regarding this "shrieking and jeering" involves use of the federally protected epithet "scab." The remainder of the record is legally insufficient to support either of appellees' causes of action.

Appellants admit that several appellees suffered from incidents of property damage. However, appellees have provided no direct evidence which links the union to that damage, nor which shows that the Union or its officers authorized, condoned, or ratified such incidents of actual property damage. The most that appellees proved was that after appellee Stephen Glass accepted a new job as a police officer, the Union sent a letter to...