Tosti v. Ayik

• Decision Date: 10 April 1985
• Parties: , 108 Lab.Cas. P 55,856
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 928

476 N.E.2d 928

394 Mass. 482, 108 Lab.Cas. P 55,856

Augustino TOSTI v. Henry AYIK et al. ¹ Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 3, 1984.

Decided April 10, 1985.

Gary R. Greenberg, Boston, for defendants.

Robert L. Bouley, Boston (Karen M. Thursby, Boston, with him), for plaintiff.

Before HENNESSEY, C.J., and LIACOS, ABRAMS and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

This is an appeal by the defendants Henry Ayik and United Auto Workers, Local 422 (union), from judgments entered against them in the Superior Court. In that action the plaintiff alleged that he was the subject of a defamatory article, written by Ayik and published in the union's newspaper. The article, which appears in the margin, ² alleged that the plaintiff, who was employed as a foreman for General Motors Corporation (G.M.), was engaging in "bargaining unit" work, i.e., union work, contrary to the provisions of the union's contract with the company. Specifically, the article accused the plaintiff of punching vehicle repair tickets without performing the requisite repair work. ³ The newspaper was distributed to union and management personnel on June 15, 1971. The plaintiff was suspended on the morning following the distribution, after being called to the plant manager's office, where mention of the article was made. On June 18, 1971, G.M. discharged the plaintiff for allegedly punching the vehicle repair tickets of unrepaired vehicles.

In 1973, the plaintiff brought an action against several representative officers and members of the union for libel and tortious interference with an employment relationship. ⁴ The jury returned verdicts against the union and against two of the individual defendants, Henry Ayik and Baheege Ayik. ⁵ The defendants appealed and this court reversed the judgments and ordered a new trial. Tosti v. Ayik, 386 Mass. 721, 437 N.E.2d 1062 (1982) (Tosti I).

Upon retrial, the jury found for all defendants on the plaintiff's claim of tortious interference with an employment relationship. It further found for the defendant Baheege Ayik on the libel claim. However, the jury returned verdicts for libel against Henry Ayik in the amount of $5,000, and against the union in the amount of $495,000. ⁶ Ayik and the union unsuccessfully moved for judgment notwithstanding the verdicts and for a new trial on the libel counts. Both defendants appealed and we granted their application for direct appellate review.

On appeal, the defendants argue that (1) the subject matter jurisdiction of the State court was preempted by Federal labor law; (2) the judge erred in failing to require "clear and convincing evidence" of the union's liability for Ayik's actions; (3) various evidentiary rulings constituted reversible errors; (4) the plaintiff failed to prove Ayik's malice by clear and convincing evidence and therefore the defendants were entitled to directed verdicts; (5) the judge erred in denying their motions for judgments notwithstanding the verdicts or, alternatively, for a new trial; (6) the damage awards were inconsistent and the award against the union was excessive; (7) interest on the awards was erroneously computed due to the judge's misinterpretation of G.L. c. 231, § 6B. We affirm the judge's rulings on all issues, except as regards the excessive damages awarded against the union.

1. Preemption.

The defendants contend that State courts lack subject matter jurisdiction over the plaintiff's libel claim as a result of the recent United States Supreme Court decision in Local 926, Int'l Union of Operating Eng'rs v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983). We disagree. In previously considering the defendants' preemption claim, we stated that "Federal labor law preempts State libel law to the extent that defamatory statements made in the context of a labor dispute are actionable only if made with knowledge of their falsity or with reckless disregard of the truth. Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 273, 94 S.Ct. 2770, 2775, 41 L.Ed.2d 745 (1974). Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 61, 86 S.Ct. 657, 662, 15 L.Ed.2d 582 (1966). In other words, State courts may grant relief in such defamation actions only if the defamatory statements were made with actual malice, as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964)." Tosti I, supra, 386 Mass. at 723, 437 N.E.2d 1062. ⁷ The Supreme Court's decision in Local 926, Int'l Union of Operating Eng'rs, supra, did not change, but rather reaffirmed, this rule. There the Court held that a cause of action against a union for tortious interference with an employment relationship was preempted because the claim was not "so deeply rooted in local law" as to outweigh "the interference with the federal labor law that prosecution of the state action would entail." 460 U.S. 669, 683, 103 S.Ct. 1453, 1462, 75 L.Ed.2d 368 (1983). At the same time, however, the Court distinguished and reaffirmed its earlier holding in Linn v. Plant Guard Workers, Local 114, supra, "that an action for a malicious and injurious libel in the course of a labor dispute ... was not pre-empted since it was unprotected conduct and since remedying injury to reputation was of only slight concern to the national labor policy and was a matter deeply rooted in state law." Local 926, Int'l Union of Operating Eng'rs, supra at 681 n. 11, 103 S.Ct. at 1461 n. 11. We therefore see no reason to reconsider the defendants' preemption claim and conclude that our decision in Tosti I, supra, 386 Mass. at 723, 437 N.E.2d 1062, remains controlling.

2. Union Liability.

The defendants claim that the judge erred in instructing the jury that, in order to hold the union liable for Ayik's article, "the plaintiff must prove by the greater weight of the believable evidence that either or both defendants were acting on behalf of the local and within the scope of their responsibilities for the local when the material in question was published." They contend that G.L. c. 149, § 20B, which is modeled after § 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106 (1982), requires proof of a union's vicarious tort liability by clear and convincing evidence.

General Laws c. 149, § 20B, inserted by St.1935, c. 407, § 1, states: "No officer or member of any association or organization, and no association or organization, participating or interested in a labor dispute ... shall be held responsible or liable in any court for the unlawful acts of individual officers, members or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof." In Tosti I, supra at 723-724, 437 N.E.2d 1062, we noted that the article in question was "published in the context of a labor dispute" because "[a] dispute over supervisory personnel doing bargaining unit work is a controversy concerning terms and conditions of employment." See G.L. c. 149, § 20C (c). We stated that "[w]e cannot separate the allegedly defamatory statement from the protected activity concerning the terms and conditions of employment." Tosti I, supra at 724, 437 N.E.2d 1062.

General Laws c. 149, § 20B, however, was intended to govern union liability in actions arising from violent labor disputes, such as injunction and contempt proceedings. The statute was originally enacted as § 1 of St. 1935, c. 407, "An Act relative to injunction and contempt procedure in labor disputes." "While the title to an act cannot control the provisions of the statute, the title may be used for the purpose of ascertaining its proper limitation." Commonwealth v. Graham, 388 Mass. 115, 120, 445 N.E.2d 1043 (1983), and cases cited. We have noted in the past that the enactment of c. 407 "followed a recommendation of the Governor that the laws relating to injunctions in labor disputes 'should be liberalized and strengthened,' and ... that the Norris-LaGuardia Act should be adopted 'as a basis for the drafting of the required state legislation.' " Simon v. Schwachman, 301 Mass. 573, 581, 18 N.E.2d 1 (1938), quoting 1935 Senate Doc. 1. See Fashioncraft, Inc. v. Halpern, 313 Mass. 385, 389, 48 N.E.2d 1 (1943); Mengel v. Superior Court, 313 Mass. 238, 245, 47 N.E.2d 3 (1943).

Our interpretation of the scope of G.L. c. 149, § 20B, is bolstered by the United States Supreme Court's discussion of the purpose of the Norris-LaGuardia Act. "[T]he simple concern of Congress was that unions had been found liable for violence and other illegal acts occurring in labor disputes which they had never authorized or ratified and for which they should not be held responsible .... The straightforward answer was § 6, with its requirement that when illegal acts of any individual are charged against one of the major antagonists in a labor dispute--whether employer or union--the evidence must clearly prove that the individual's acts were authorized or ratified." Ramsey v. UMW, 401 U.S. 302, 310, 91 S.Ct. 658, 663, 28 L.Ed.2d 64 (1971). See United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 403, 67 S.Ct. 775, 780, 91 L.Ed. 973 (1947).

Other jurisdictions which have enacted legislation patterned after the Norris-LaGuardia Act have held that their analogous statutes do not apply to cases charging unions with tort liability. See, e.g., Nelson v. Haley, 232 Ind. 314, 318, 112 N.E.2d 442 (1953); Buchanan v. International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers, 94 Wash.2d 508, 511, 617 P.2d 1004 (1980). While the Connecticut cases relied upon by the defendants do involve union tort liability, there too the alleged torts arose in the context of a violent labor dispute. In Benoit v. Amalgamated Local 299 United Elec. Radio & Mach. Workers, 150 Conn. 266, 274-275, 188 A.2d 499 (1963) and United Aircraft Corp. v. International Ass'n of Machinists, 161 Conn....