Tosti v. Ayik

• Decision Date: 09 July 1982
• Citation: 437 N.E.2d 1062,386 Mass. 721
• Parties: , 114 L.R.R.M. (BNA) 2558, 98 Lab.Cas. P 55,405 Augustino TOSTI v. Baheege AYIK et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1062

437 N.E.2d 1062

386 Mass. 721, 114 L.R.R.M. (BNA) 2558,

98 Lab.Cas. P 55,405

Augustino TOSTI v. Baheege AYIK et al. ¹

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 3, 1982.

Decided July 9, 1982.

Michael P. Angelini, Worcester (Vincent F. O'Rourke, Jr., Worcester, with him) for defendants.

Robert L. Bouley, Boston (James W. Luby, Framingham, and Karen M. Thursby, with him) for plaintiff.

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

NOLAN, Justice.

This action arises out of the publication by the defendants of an article in a local union newspaper. The article, which appears in the margin, ² made two intertwining allegations about the plaintiff. One was that he was engaged in bargaining unit work contrary to the contract then in force between the employer, General Motors, and the union, United Auto Workers, Local 422. The other was that he was punching repair tickets without the requisite work having been done. ³ The newspaper was distributed to both union and management personnel. On the morning following distribution, the plaintiff was called to the plant manager's office, where mention of the article was made. Two days later the plaintiff was fired.

The defendant Baheege Ayik was shop chairman of the local union at all times material to this action. The defendant Henry Ayik, who wrote the article based on his witnessing the purported events described therein, was a union member at all times pertinent to this action.

The plaintiff brought an action claiming that he was libelled by the article and that the defendants tortiously interfered with his employment by publishing the article. A jury found for the plaintiff, and the trial judge denied motions for a new trial and judgment notwithstanding the verdict. The defendants appealed and this court granted their application for direct appellate review. For reasons which will appear below, we are ordering that a new trial be held on both the libel claim and the tortious interference claim.

1. Preemption of the libel claim. 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, National 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, 725-26, 11 L.Ed.2d 686 (1964).

The question as to whether instructions on actual malice need be given in this case turns, then, on whether the allegedly defamatory article was published in the context of a labor dispute. The term "labor dispute" includes "any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." 29 U.S.C. § 152(9) (1976). We note that "[r]arely have courts found concerted union activity to fall outside this broad definition. Where the union acts for some arguably job-related reason and not out of pure social or political concerns, a 'labor dispute' exists." Hasbrouck v. Sheet Metal Workers Local 232, 586 F.2d 691, 694 n.3 (9th Cir. 1978). The term "labor dispute" should be broadly and liberally construed. United Electric Coal Cos. v. Rice, 80 F.2d 1, 5 (7th Cir. 1935), cert. denied, 297 U.S. 714, 56 S.Ct. 590, 80 L.Ed. 1000 (1936).

We hold that the article in question here was published in the context of a labor dispute. There were, arguably, two reasons why the article was published. One was to call attention to a supervisory employee doing bargaining unit work, to the harm of union members. The other was to injure the reputation of the plaintiff by alleging that he claimed to have done repair work that he knew had not been done. Evidence adduced at trial was that the former was an important concern of the union. A dispute over supervisory personnel doing bargaining unit work is a controversy concerning terms and conditions of employment. Cf. Aladdin Indus., Inc., 22 N.L.R.B. 1195, 1216 & n.11 (1940) (dispute involving discharge or demotion of supervisor who is objectionable to employees is a labor dispute). We cannot separate the allegedly defamatory statement from the protected activity concerning the terms and conditions of employment. Whether the Federal labor law "partial pre-emption of state libel remedies is applicable obviously cannot depend on some abstract notion of what constitutes a 'labor dispute'; rather, application of [the actual malice standard] must turn on whether the defamatory publication is made in a context where the policies of the federal labor laws leading to protection for freedom of speech are significantly implicated." Old Dominion Branch No. 496, National Ass'n of Letter Carriers v. Austin, supra, 418 U.S. at 279, 94 S.Ct. at 2778. Those policies were summed up by the Supreme Court in Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 58, 86 S.Ct. 657, 660-61, 15 L.Ed.2d 582 (1966): "Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, [labor disputes] 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." Such use of language was approved by Congress. Old Dominion Branch No. 496, National Ass'n of Letter Carriers v. Austin, supra, 418 U.S. at 272, 94 S.Ct. at 2775. To protect this freewheeling use of language, the United States Supreme Court mandated that the New York Times malice standard be pleaded and proved by plaintiffs in cases alleging defamation in the context of a labor dispute. Linn v. Plant Guard Workers Local 114, supra, 383 U.S. at 64-65, 86 S.Ct. at 663-64.

The plaintiff, responding to this argument, maintains that, as this issue was not raised at trial, the defendants are precluded from raising it here. See Royal Indem. Co. v. Blakely, 372 Mass. 86, 88, 360 N.E.2d 864 (1977). Further, the plaintiff argues that, since the defendants requested instructions that did not contain the New York Times standard, and these requests for jury instructions were granted, they should not be allowed to raise this error on appeal. Cf. Korb v. Albany Carpet Cleaning Co., 301 Mass. 317, 318, 17 N.E.2d 150 (1938).

The United States Supreme Court has made it clear that, because the policy evidenced by the Federal labor laws is so important, a court only has "jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him." Linn v. Plant Guard Workers Local 114, supra, 383 U.S. at 55, 86 S.Ct. at 659. The judge's instructions in this case were not a mere error of law. Rather, Congress, in passing the Federal labor laws, "deprived the States of the power to act," id. at 59, 86 S.Ct. at 661, in a defamation case arising from a labor dispute absent the correct application of the New York Times standard. Subject matter jurisdiction may be raised for the first time on appeal, as it "cannot be conferred by consent, conduct or waiver." Litton Business Sys., Inc. v. Commissioner of Revenue, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1207, 1210, 420 N.E.2d 339. See Allard v. Estes, 292 Mass. 187, 196, 197 N.E. 884 (1935).

Thus, the judge's charge, lacking as it did an instruction that for the plaintiff to prevail on the defamation counts he would have to prove actual malice, constituted reversible error which requires a new trial. ⁴

Our holding that the plaintiff may recover in a State court only if he proves that the defendants published their statements knowing the defamatory matter to be false, or with reckless disregard as to its truth or falsity, negates any necessity to discuss whether the judge's charge as to conditional privilege was correct. The defendants claim that the statements published in the union newspaper were, even if defamatory, privileged. A conditional privilege, however, is lost if abused. One manner of such abuse is publication with knowledge of falsity or with reckless disregard of the truth. Restatement (Second) of Torts § 600 (1977). See Vigoda v. Barton, 348 Mass. 478, 485, 204 N.E.2d 441 (1965); J. R. Nolan, Tort Law § 101 (1979). Since that is the same standard as must be satisfied for liability to arise in this case, it follows that if "actual malice" is proved, any conditional privilege is thereby proven lost. Wright v. Haas, 586 P.2d 1093, 1097 (Okla.1978).

2. Preemption of the tortious interference claim. The defendants argue that the plaintiff's claim of tortious interference with employment is preempted by Federal labor law. Although labor law preemption is a difficult field, a careful analysis of Federal law leads to the conclusion that we should hold that in this case Federal labor law does not preempt the plaintiff's cause of action for tortious interference with an employment relationship if the jury finds that a libel made with actual malice was the basis of such interference.

"The question whether federal law 'preempts' state action, largely one of statutory construction, cannot be reduced to general formulas. In evaluating patterns of statutory interaction, the Supreme Court has declared generally that whether challenged state action has been pre-empted...