Petition for Writ of Certiorari — WG/Welch Mechanical Contractors, LLC, Petitioner v. International Association of Sheet Metal, Air, Rail & Transportation Workers, Local Union 100 - Sheet Metal Division, et al.

No. 25In the

Supreme Court of the United States

WG/WELCH MECHANICAL CONTRACTORS, LLC,

Petitioner,

v.

INTERNATIONAL ASSOCIATION OF SHEET

METAL, AIR, RAIL & TRANSPORTATION

WORKERS, LOCAL UNION 100-SHEET METAL

DIVISION; RICHARD LABILEE, III;

CHARLES SEWELL; DAVID GOETZKE,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Steven M. Toprani

2259 State Route 88

Finleyville, PA 15332

Richard J. Cromer

Counsel of Record

Leech Tishman Fuscaldo

& Lampl, LLC

525 William Penn Place,

Floor 28

Pittsburgh, PA 15219

(412) 261-1600

rcromer@leechtishman.com

Attorneys for Petitioner

120644

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

Whether the plaintiff of a malicious defamation claim must

plead facts that directly reveal a defendant’s subjective

state of mind, or whether the pleading standard is satisfied

when the complaint plausibly alleges that the defendant

was the likely organizer of inherently malicious attacks.

Whether a defamation claim may be dismissed on the

ground that the contested speech comprised individual

statements that are individually true or opinion, even

when that speech implies false and defamatory facts about

the plaintiff.

ii

PARTIES TO THE PROCEEDINGS

W.G./Welch Mechanical Contractors, LLC, Petitioner

International Association of Sheet Metal, Air, Rail &

Transportation Workers, Local Union 100-Sheet Metal

Division, Richard Labilee, III, Charles Sewell, David

Goetzke, Respondents

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure

26.1, W.G./Welch Mechanical Contractors, LLC, who is

Petitioner, makes the following disclosure:

Petitioner is not a publicly held corporation or other

publicly held entity. A publicly held corporation or other

publicly held corporation does not own 10% or more of the

stock of Petitioner.

iv

RELATED PROCEEDINGS

U.S. Court of Appeals for the Fourth Circuit:

• WG/Welch Mech. Contractors, LLC v. Int’l Ass’n

of Sheet Metal, Air, Rail, & Transp. Workers, Loc.

Union 100-Sheet Metal Div., No. 24-2067, 2025 WL

1672862 (4th Cir. June 13, 2025).

U.S. District Court for the District of Maryland

• WG/Welch Mech. Contractors, LLC v. Int’l Ass’n

of Sheet Metal, Air, Rail, & Transp. Workers, Loc.

Union 100-Sheet Metal Div., No. 8:22CV02296, 2024

WL 4264914 (D.Md. September 23, 2024)

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

A. Original Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 2

B. Facts and Proceedings Below . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE PETITION . . . . . 7

vi

Table of Contents

Page

I.

Certiorari should be granted because

Welch alleged sufficient factual matter

to state a plausible claim for relief, yet

the complaint was dismissed based on

the Court of Appeals’ holding that the

plausibility of malice must be based on

specific factual knowledge of the defendants’

state of mind rather than inference drawn

from the surrounding circumstances . . . . . . . . . 8

II. Certiorari should be granted because

Welch alleged sufficient factual matter to

state a plausible claim for relief, yet the

complaint was dismissed based on the Court

of Appeals’ implicit view that falsity may

not be pleaded when isolated, technically

accurate statements imply defamatory

content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED JUNE 13, 2025 . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DI S T R IC T OF M A RY L A N D, F I L ED

SEPTEMBER 23, 2024 . . . . . . . . . . . . . . . . . . . . . . . 8a

APPENDIX C — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED SEPTEMBER 23, 2024 . . . . . . . . . . . . . . . 10a

viii

TABLE OF CITED AUTHORITIES

Cases

Page

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

Batson v. Shiflett,

602 A.2d 1191, 325 Md. 684 (Md. 1992) . . . . . . . . . . . 12

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Hearst Corp. v. Hughes,

466 A.2d 486, 297 Md. 112 (Md. 1983) . . . . . . . . . . . 13

Linn v. United Plant Guard Workers of Am.,

383 U.S. 53 (1966) . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 14

Milkovich v. Lorain Journal Co.,

497 U.S. 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Old Dominion Branch No. 496, Nat’l Ass’n

of Letter Carriers v. Austin,

418 U.S. 264 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

San Diego Bldg. Trades Council, Millmen’s

Union, Loc. 2020 v. Garmon,

359 U.S. 236 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

ix

Cited Authorities

Page

Statutory Provisions

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 U.S.C. § 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

29 U.S.C. § 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8

29 U.S.C. § 187(8)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other Authorities

Fed. R. Civ. P. 9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Restatement (Second) of Torts § 566 (1977) . . . . . . . . 13

1

PETITION FOR WRIT OF CERTIORARI

Petitioner WG/Welch Mechanical Contractors, LLC

respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fourth Circuit (“Court of Appeals”).

OPINION BELOW

The Fourth Circuit’s decision is not reported but

available at 2025 WL 1672862 and is included in the

Appendix at 1a. The United States District Court for the

District of Maryland’s Memorandum Opinion is available

at 2024 WL 4264914 as a slip copy and is included in the

Appendix at 10a. The United States District Court for the

District of Maryland’s Order is not reported and included

in the Appendix at 8a.

JURISDICTION

This Court has jurisdiction of this petition to review

the judgment of the Court of Appeals pursuant to 28

U.S.C. §1254. This petition is timely submitted. The

Court of Appeals’ affirmation of the District Court’s order

was entered on June 13, 2025.

STATUTORY PROVISIONS

This case involves the application of 29 U.S.C. § 158(b),

which states in relevant part:

It shall be an unfair labor practice for a labor

organization or its agents…

2

(4)(ii) to threaten, coerce, or restrain any

person engaged in commerce or in an industry

affecting commerce, where in either case an

object thereof is…

(B) forcing or requiring any person to cease

using, selling, handling, transporting, or

otherwise dealing in the products of any other

producer, processor, or manufacturer, or to

cease doing business with any other person,

or forcing or requiring any other employer to

recognize or bargain with a labor organization

as the representative of his employees unless

such labor organization has been certified as

the representative of such employees under the

provisions of section 159 of this title: Provided,

That nothing contained in this clause (B) shall

be construed to make unlawful, where not

otherwise unlawful, any primary strike or

primary picketing[.]

STATEMENT OF THE CASE

A. Original Jurisdiction

Jurisdiction in the court of first instance, the United

States District Court for the District of Maryland, was

pursuant to 28 U.S.C. § 1331.

B. Facts and Proceedings Below

WG/Welch Mechanical Contractors, LLC (“Welch”) is

a mechanical contractor that performs work in Maryland,

Virginia and Washington, the District of Columbia. Pet.

3

App. 11a. Welch is a non-union employer, as it is not

party to any collective bargaining agreement and does

not employ union labor or source workers through union

halls. Pet. App. 11a. The International Association of

Sheet Metal, Air, Rail & Transportation Workers, Local

Union 100 – Sheet Metal Division (“SMART”) is a trade

union that represents sheet-metal trades workers in the

jurisdiction in which Welch conducts business. Pet. App.

11a.

In early 2020, Welch noticed that SMART “began

taking direct action against Welch and its customers.”

Pet. App. 11a. (citations omitted). While SMART’s

conduct initially consisted of handbilling, it escalated to

the promulgation of formal letters addressed to Welch’s

customers, general contractors, and neutral third parties.

Pet. App. 11a–12a. This campaign included “false[] and

defamatory materials” and was “designed to cause

reputational and financial damage.” Pet. App. 12a.

Welch filed a complaint on September 12, 2022. On

August 18, 2023, Welch filed its amended complaint. Welch

brought the following claims against all Defendants:

1) Violation of § 8(b) of the National Labor

Relation Act (“NLRA”), as amended § 303 of the

Labor Management Relations Act (“LMRA”),

29 U.S.C. § 187.

2) Civil Conspiracy to Violate the National

Labor Relations Act.

3) Defamation / Defamation Per Se under

Maryland Law.

4

The United States Court of Appeals for the Fourth

Circuit, summarized the allegations contained in the

amended complaint as follows:

At first, according to Welch, SMART passed

out ‘leaflets, handbills and other materials at

jobsites.’ But then things heated up.

Welch says that SMART started ‘supplying’

Welch’s ‘customers and general contractors’ with

‘accusatory, false and defamatory materials.’…

[Welch] ‘aver[s]’ that SMART acted ‘solely to

cause [Welch] financial and reputational harm.’

Welch suspects SMART catalyzed related

legal troubles. One of Welch’s subcontractors,

Reyes Plumbing, sued Welch and reported its

alleged labor law violations to the D.C. Attorney

General’s Office. Welch says the accusations are

false, and knowingly so.

Welch pleads…that SMART hired Reyes

Plumbing’s attorneys and ‘prompted, aided

or abetted’ Reyes’s lawsuit and report. The

owner of another of Welch’s subcontractors

also accused Welch of violating labor laws.

Welch alleges that SMART was behind that

accusation, too.

…

SMART also mailed a letter to Welch’s clients

saying that Welch had ‘a concerning record of

potential [labor] law violations,’ since it had ‘been

5

accused of’ underpaying and misclassifying its

employees…Welch claims that SMART ‘sent

this letter with intent, purpose and malice, so

as to damage an existing business relationship,’

and it maintains its innocence.

Pet. App. 2a–4a (citations omitted).

SMART’s letter to Welch’s clients states, in relevant

part:

Please be aware that W. G. /Welch Mechanical

Contractors LLC - a contractor working on

the construction of your Sunrise Senior living

center on 1515 Chain Bridge Road, McLean,

VA[] and Sunrise Senior living center 308

Maple Avenue East, Vienna, VA[] - has a

concerning record of potential employment law

violations. Specifically, W.G./Welch has been

accused of failing to pay area standard wages,

not paying employees in a timely manner,

and misclassifying employees as independent

contractors.

The Attorney General’s office for the District

of Columbia is currently investigating W.G./

Welch and one of its subcontractors, Mechanical

Plumbing Crew Co., for alleged violations of

D.C. employment laws, including the Minimum

Wage Revision Act, the Sick and Safe Leave

Act, the Living Wage Act, the Workplace

Fraud Act, and/or the Wage Theft Prevention

Amendment Act. These laws protect employees

from wage and safety abuses, as well as from

being misclassified as independent contractors.

6

W.G./Welch is also being sued in the Superior

Court for the District of Columbia for allegedly

violating the D.C. Minimum Wage Law, failing

to timely pay wages, and misclassifying

employees as independent contractors in

violation of the D.C. Workplace Fraud Act.

The Washington Hispanic recently reported on

W. G. /Welch’s actions. That article is attached.

We want to make sure you are aware that W. G.

/Welch has a concerning record when it comes

to the treatment of its workers. If you have any

questions or would like to discuss this issue in

more detail, please do not hesitate to contact

me.

Pet. App. 13a–14a.

In its amended complaint, Welch alleged that SMART

sent the foregoing letter with “intent, purpose, and malice,

so as to damage an existing business relationship.” Pet.

App. 14a. Additionally, SMART “sent similar letters

to other neutral third parties to damage existing and

prospective business relationships.” Pet. App. 14a.

On September 15, 2023, Defendants moved to dismiss

for lack of jurisdiction and failure to state a claim. Pet.

App. 17a. On September 23, 2024, Judge Deborah K.

Chasanow of the United States District Court for the

District of Maryland granted the motion in an order

accompanied by a memorandum opinion. Pet. App. B;

Pet. App. C.

7

On appeal, the Court of Appeals reasoned that Linn

v. United Plant Guard Workers of Am. “resolves this

case” with respect to Welch’s defamation claim. 383 U.S.

53 (1966); Pet. App. 6a. In short, the Court of Appeals

cited Linn and concluded that “the National Labor

Relations Act preempts defamation claims arising from

labor disputes, except in cases where” there was malice.

Pet. App. 5a (citing Linn, 383 U.S. at 64–65). The Court

of Appeals determined that Welch only pleaded malice

via conclusory allegations, which “merit no presumption

of truth.” Pet. App. 6a. Additionally, the Court of Appeals

maintained that the content in SMART’s letter were

“substantially correct” and thus non-defamatory. Pet.

App. 7a. (citations omitted).

Accordingly, on June 13, 2025, the United States Court

of Appeals for the Fourth Circuit affirmed the district

court’s order. Pet. App. 7a. This petition for a writ of

certiorari follows.

REASONS FOR GRANTING THE PETITION

Welch, a non-union employer, brought this action in

response to what it alleges was a deliberate campaign

by SMART to inflict financial and reputational damage.

Pet. App. 12a. Welch contends that SMART knowingly

distributed false and defamatory materials to its customers

and contractors to “coerc[e] WELCH’s customers not

to work with Welch.” Pet. App. 14a. Welch denies the

misconduct contained in the defamatory materials, but

Welch suffered tremendous losses. Welch suffered an

actual loss of $10.5 million in fiscal year 2022 alone. Pet.

App. 15a. SMART’s campaign was a success.

8

Although Welch seeks an appropriate remedy, its

action has been dismissed. The Court of Appeals appears

to require that Welch plead with specific, detailed

knowledge of SMART’s state of mind during the alleged

defamatory campaign, an apparent departure from

Federal Rule of Civil Procedure 9(b) and elevation of the

general plausibility standard applied to pleadings. See Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007); See Ashcroft

v. Iqbal, 556 U.S. 662 (2009). In affirming the District

Court’s dismissal for failure to state a claim, the Court of

Appeals also has, implicitly, resolved a significant question

of federal law that warrant this Court’s review.

I.

Certiorari should be granted because Welch alleged

sufficient factual matter to state a plausible

claim for relief, yet the complaint was dismissed

based on the Court of Appeals’ holding that the

plausibility of malice must be based on specific

factual knowledge of the defendants’ state of mind

rather than inference drawn from the surrounding

circumstances.

State law claims that arise from speech, presumably

protected by § 7 of the National Labor Relations Act, are

typically preempted by that act. San Diego Bldg. Trades

Council, Millmen’s Union, Loc. 2020 v. Garmon, 359

U.S. 236, 244 (1959); 29 U.S.C.A. §§ 157, 158. Garmon

establishes that in cases involving § 7 protection, “due

regard for the federal enactment requires that state

jurisdiction must yield.” 359 U.S. at 244.

However, this well-established principle does not

preclude all state law claims arising from protected

conduct. A state law claim may be pursued when the

9

matter involves a compelling local interest. Specifically,

Garmon allows such a claim “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.” Id. at 243–44.

Linn considers one such exception to Garmon

preemption: cases involving malicious libel. In Linn, the

Court reasoned 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.” Linn, 383 U.S. at 62 (1966).

Linn permits a state law defamation claim where “the

defamatory statements were circulated with malice.” Id.

at 64–65. In this context, malice refers to “knowledge of

falsity or reckless disregard for the truth.” Old Dominion

Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin,

418 U.S. 264, 281 (1974) (citing New York Times Co. v.

Sullivan, 376 U.S. 254, 280 (1964)).

Applied to the present case, Welch’s defamation claim

should survive a motion to dismiss if it sufficiently pleads

the elements of a state law defamation claim in addition

to malice. See Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007); See Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Welch alleges that it faced “false reports [filed] with

oversight agencies and in court filing,” had the Office of

Attorney General of the District of Columbia investigate

its employment practices, and was the subject of a critical

article in the Washington Hispanic. Pet. App. 12a,

13a–15a. Welch maintains its innocence. Typically, when

an innocent party faces a sudden barrage of accusations,

10

it reasonably suspects a coordinated campaign behind

the effort. Often, the identity of those orchestrating

such a campaign remains unknown. Here, however,

Welch had grounds for confidence. When SMART began

distributing letters to Welch’s clients, calling attention to

the pending legal proceedings and public chastisement,

Welch reasonably concluded that the orchestrator had

effectively revealed its hand. Pet. App 11a–12a. Fittingly,

Welch alleged that SMART aided in “advancing false

and malicious claims” while “kn[owing] that Welch did

not commit any … employment law violations.” Pet. App.

12–13a.

Despite the clear, fact-intensive, and reasonably

crafted narrative in Welch’s amended complaint, the Court

of Appeals maintained that malice was not sufficiently

pleaded for the defamation claim to survive a motion to

dismiss. Pet. App. 5a–7a. Rather than accept as true the

averments made by Welch, the Court of Appeals preferred

SMART’s own account that “its goal was to improve

working conditions for [Welch]’s employees” instead of

giving deference to Welch’s complaint. Pet. App. 6a. This

approach runs afoul of the principle that “[m]alice…may

be alleged generally,” while still respecting the plausibility

requirement of Iqbal. Fed. R. Civ. P. 9(b); Iqbal, 556 U.S.

662 (2009). The Court of Appeals in this case reasoned

that the allegation of malice was merely “conclusory” and

therefore “merit[s] no presumption of truth.” Pet. App. 6a.

This approach, however, is flawed. When a company

endures what it reasonably believes to be false accusations,

investigations, and baseless lawsuits, and subsequently

receives notice that a union has summarized and

disseminated this information to its valued clients and

11

neutral third parties, an allegation of malice is sufficiently

supported. Moreover, without the benefit of discovery,

Welch cannot obtain further evidence regarding SMART’s

alleged malice.

Perhaps, alternatively, the Court of Appeals did not

intend to raise the pleading standard, but rather simply

overlooked SMART’s concerning pattern of behavior,

which was factually pled in Welch’s amended complaint.

This could be so, as the court equated Welch’s pleading

of malice with SMART’s assertion that “its goal was to

improve working conditions for Welch’s employees.” Pet.

App. 6a. The Court of Appeals deemed both allegations

“bare” and preferred the statements of the party accused

of defamation, rather than deferring to Welch and its

detailed allegations of a coordinated campaign of baseless

attacks and resultant millions of dollars in net losses.

The Court of Appeals’ holding on malice has significant

implications. By rejecting Welch’s narrative demonstrating

that SMART likely orchestrated and publicized attacks

damaging its reputation, the court effectively required

Welch to plead direct knowledge of SMART’s state of

mind. This, as a matter of course, cannot be reasonably

ascertained prior to discovery, if ever. The Court of

Appeals reduces viable defamation claims to those where

the complaint speaks directly to the defendant’s subjective

state of mind, rather than permitting malice to be inferred

from a coherent narrative of the defendant’s actions.

12

II. Certiorari should be granted because Welch alleged

sufficient factual matter to state a plausible claim

for relief, yet the complaint was dismissed based on

the Court of Appeals’ implicit view that falsity may

not be pleaded when isolated, technically accurate

statements imply defamatory content.

The Court of Appeals continued its analysis of

Welch’s amended complaint, asserting that “[e]ven if

Welch plausibly alleged malice, it would still lose: the

pleaded ‘defamation’ isn’t false.” Pet. App. 6a. The Court

of Appeals explained that SMART’s letter contained only

truthful information: “that Welch ‘has been accused of’

various acts; that Welch ‘is also being sued’; and that ‘[t]

he Washington Hispanic recently reported’ on Welch’s

acts.” Pet. App. 6a. Surely the quoted statements are

factual, as, individually, each was carefully worded as to

be descriptive rather than conclusive. However, SMART’s

letter contained a clear statement of opinion, which, when

taken together with the whole of the letter, renders the

content of this letter sufficient grounds for a defamation

claim.

Not only did SMART’s letter imply a clear negative

narrative, but it explicitly became a vessel of accusation

when it stated the following: “[w]e want to make sure

you are aware that W.G./Welch has a concerning record

when it comes to the treatment of its workers.” Pet. App.

14a. In principle and by its effect, this letter “manifest[s]

a tendency to seriously injure” Welch’s “reputation,

exposing [it] to public scorn, hatred, contempt or ridicule”

and is thus “capable of defamatory meaning.” Batson v.

Shiflett, 602 A.2d 1191, 1211, 325 Md. 684, 724 (Md. 1992).

Describing a suspect course of conduct and labeling it as

13

“concerning” constitutes more than a factual statement,

contrary to the Court of Appeals’ conclusion.

By accusing Welch of having a “concerning” record,

SMART subjected itself to a defamation claim. Milkovich

v. Lorain Journal Co. makes clear that there is not a

“wholesale defamation exemption for anything that might

be labeled ‘opinion.’” 497 U.S. 1, 18 (1990). The reason

undergirding this principle is best demonstrated by way

of example:

If a speaker says, “In my opinion John Jones is a

liar,” he implies a knowledge of facts which lead

to the conclusion that Jones told an untruth.

Even if the speaker states the facts upon which

he bases his opinion, if those facts are either

incorrect or incomplete, or if his assessment of

them is erroneous, the statement may still imply

a false assertion of fact. Simply couching such

statements in terms of opinion does not dispel

these implications[.]

Id. at 18-19.

Indeed, Hearst Corp. v. Hughes references the

Restatement to clarify that “‘[a] defamatory communication

may consist of a statement in the form of an opinion, but

a statement of this nature is actionable only if it implies

the allegation of undisclosed defamatory facts as the

basis for the opinion.’” 466 A.2d 486, 496, 297 Md. 112,

131 (1983)(quoting Restatement (Second) of Torts § 566

(1977). Opinions that contain such factual implications are

deemed mixed opinions and are actionable. Hearst Corp.,

466 A.2d at 486.

14

Just as a speaker that recites “[i]n my opinion John

Jones is a liar” may be held liable for defamation, so

too may SMART be held liable when it promulgates a

prejudicial narrative and ultimately concludes that “W.G./

Welch has a concerning record when it comes to the

treatment of its workers.” Milkovich, 497 U.S. at 18 (1990);

Pet. App. 14a. Through this letter, SMART effectively

implied to numerous clients and third parties that Welch

was culpable in the proceedings described therein, which

Welch alleged SMART itself initiated.

The Court of Appeals’ holding allows malicious actors

to orchestrate a campaign of baseless claims and widely

publicize inherently negative legal actions without facing

liability for defamation. This Court should clarify the

pleading standard for the falsity element of a defamation

claim, reaffirm the Linn Doctrine and correct this error.

15

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests the issuance of a writ of certiorari.

Respectfully submitted,

Steven M. Toprani

2259 State Route 88

Finleyville, PA 15332

Richard J. Cromer

Counsel of Record

Leech Tishman Fuscaldo

& Lampl, LLC

525 William Penn Place,

Floor 28

Pittsburgh, PA 15219

(412) 261-1600

rcromer@leechtishman.com

Attorneys for Petitioner

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED JUNE 13, 2025 . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DI S T R IC T OF M A RY L A N D, F I L ED

SEPTEMBER 23, 2024 . . . . . . . . . . . . . . . . . . . . . . . 8a

APPENDIX C — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED SEPTEMBER 23, 2024 . . . . . . . . . . . . . . . 10a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT, FILED JUNE 13, 2025

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 24-2067

WG/WELCH MECHANICAL CONTRACTORS, LLC,

Plaintiff - Appellant,

V.

INTERNATIONAL ASSOCIATION OF SHEET

METAL, AIR, RAIL & TRANSPORTATION

WORKERS, LOCAL UNION 100-SHEET METAL

DIVISION; RICHARD LABILLE, III; CHARLES

SEWELL; DAVID GOETZKE,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, Senior District Judge.

(8:22-cv-02296-DKC)

Submitted: April 8, 2025

Decided: June 13, 2025

Before DIAZ, Chief Judge, KING, Circuit Judge, and

Thomas E. JOHNSTON, United States District Judge

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Appendix A

for the Southern District of West Virginia, sitting by

designation.

Affirmed by unpublished opinion. Chief Judge Diaz wrote

the opinion, in which Judge King and District Judge

Johnston joined.

Unpublished opinions are not binding precedent in this

circuit.

DIAZ, Chief Judge:

WG/Welch Mechanical Contractors, LLC, runs a

nonunion shop. A local union’s sharp-elbowed organizing

tactics frustrated Welch. In response, Welch sued for

damages. The district court dismissed Welch’s complaint.

We affirm.

I.

Welch, a Maryland mechanical contractor, doesn’t hire

union workers, and it’s never signed a collective bargaining

agreement. The International Association of Sheet Metal,

Air, Rail and Transportation Workers, Local 100 (which

represents sheet metal workers in the greater D.C. area,

and which we call “SMART”), disapproves.

SMART began to butt heads with Welch. At first,

according to Welch, SMART passed out “leaflets, handbills

and other materials at jobsites.” But then things heated

up. Welch says that SMART started “supplying” Welch’s

“customers and general contractors” with “accusatory,

3a

Appendix A

false and defamatory materials.” Although Welch doesn’t

plead the content of these materials, it “aver[s]” that

SMART acted “solely to cause [Welch] financial and

reputational harm.” J.A. 9.

Welch suspects SMART catalyzed related legal

troubles. One of Welch’s subcontractors, Reyes Plumbing,

sued Welch and reported its alleged labor law violations

to the D.C. Attorney General’s Office. Welch says the

accusations are false, and knowingly so.

Welch pleads on “information and belief’ that SMART

hired Reyes Plumbing’s attorneys and “prompted, aided

or abetted” Reyes’s lawsuit and report. J.A. 9. The owner

of another of Welch’s subcontractors also accused Welch

of violating labor laws. Welch alleges that SMART was

behind that accusation, too.

On top of that, the Washington Hispanic (a local

Spanish-language newspaper) published an article about

Welch’s purported misdeeds. See Nelly Carrion, Par Falta

de Pagos Protestan Operarios de Construcci6n en DC,

Wash. Hisp., Apr. 1, 2022, at A7 [https://perma.cc/U8ZNCX9Z]. Once more, Welch pins the blame on SMART.

SMART also mailed a letter to Welch’s clients saying

that Welch had “a concerning record of potential [labor]

law violations,” since it had “been accused of’ underpaying

and misclassifying its employees. The letter, which Welch

attached to its complaint, explained that the D.C. Attorney

General’s Office was “currently investigating” Welch, that

Welch was “also being sued,” and that the Washington

4a

Appendix A

Hispanic had “recently reported” on Welch’s activities.

J.A. 16. Welch claims that SMART “sent this letter with

intent, purpose and malice, so as to damage an existing

business relationship,” and it maintains its innocence.

J.A. 11.

Welch sued SMART in federal court. It pleaded (1)

that SMART violated the National Labor Relations Act;

(2) that SMART and its leaders had conspired to violate

the same; and (3) that SMART had defamed Welch. The

district court dismissed the complaint.1 WG/Welch Mech.

Contractors, LLC v. Int’l Ass’n of Sheet Metal, Air, Rail

& Transp. Workers, Loe. Union 100 - Sheet Metal Div.,

No. DKC 22-2296, 2024 WL 4264914, at *l (D. Md. Sept.

23, 2024).

This appeal followed.

II.

Welch’s National Labor Relations Act claim proceeds

under 29 U.S.C. § 187(b), which gives employers a private

right of action to recover for certain unfair labor practices

by unions. One of those practices is “threaten[ing],

coerc[ing], or restrain[ing] any person” to “forc[e] or

requir[e]” that person “to cease doing business with” an

employer. 29 U.S.C. § 158(b)(4).

The Supreme Court, seeking to avoid potential First

Amendment problems, has emphasized that “more than

1. Welch’s brief on appeal doesn’t mention its conspiracy claim,

so neither do we.

5a

Appendix A

mere persuasion is necessary to prove a violation of

[§ 158(b)(4)].” Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 578

(1988); see id. at 584. The union’s actions must resemble

“violence, picketing, or patrolling” to count as threatening,

coercing, or restraining for § 158(b)(4) purposes. Id. at 578.

None of SMART’s acts, as pleaded, come close to

the line drawn in DeBartolo. Sending a letter, even one

packed with alleged lies, is peaceful activity. And so are

distributing materials and filing lawsuits. SMART can’t

be held liable for such purely expressive acts. Whether

those acts were part of a “malicious[] . . . campaign” is

beside the point. Appellant’s Br. at 10.

Welch’s defamation claim also fails. Under Maryland

law (which the parties agree governs), defamation requires

“(1) that the defendant made a defamatory statement to a

third person, (2) that the statement was false, (3) that the

defendant was legally at fault in making the statement,

and (4) that the plaintiff thereby suffered harm.” Piscatelli

v. Van Smith, 35 A.3d 1140, 1147 (Md. 2012) (cleaned

up). What’s more, the National Labor Relations Act

preempts defamation claims arising from labor disputes,

except in cases where “the complainant can show that

the defamatory statements were circulated with malice

and caused him damage.” Linn v. United Plant Guard

Workers of Am., 383 U.S. 53, 64-65 (1966).

Malice, as used in Linn, means “knowledge of falsity

or reckless disregard for the truth.” Old Dominion

Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin,

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Appendix A

418 U.S. 264, 281 (1974) (cleaned up). And “any publication

made during the course of union organizing efforts, which

is arguably relevant to that organizational activity, is

entitled to the protection of Linn.” Id. at 279.

Linn resolves this case. SMART’s alleged actions

related to a labor dispute (that is, a “controversy

concerning . . . conditions of employment,” 29 U.S.C.

§ 152(9)). As SMART’s own letter makes plain, its goal

was to improve working conditions for Welch’s employees.

Welch’s attempts to plead otherwise run aground on

our general rule that attached exhibits trump “bare

allegations” when the two conflict. Goines v. Valley Cmty.

Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (cleaned up).

And though Welch purports to plead malice, its allegations

are conclusory and merit no presumption of truth. 2 See,

e.g., J.A. 11 (“Local 100 sent this letter with intent, purpose

and malice.”).

Even if Welch plausibly alleged malice, it would still

lose: the pleaded “defamation” isn’t false. SMART’s letter

said that Welch “has a . . . record of potential employment

law violations”; that Welch “has been accused of’ various

acts; that the D.C. Attorney General’s Office “is currently

investigating” Welch; that Welch “is also being sued”; and

that “[t]he Washington Hispanic recently reported” on

Welch’s acts. J.A. 16. All of which is true.

2. It’s true that “[m]alice . . . may be alleged generally.” Fed.

R. Civ. P. 9(b). “But ‘generally’ is a relative term,” and Welch must

still plead facts to make the inference of malice plausible. Ashcroft

v. Iqbal, 556 U.S. 662, 686-87 (2009). Welch’s request for a lighter

pleading standard ignores Iqbal’s holding. See Appellant’s Br. at

10-12.

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Appendix A

Welch pleads that SMART’s statements were false

because Welch “did not commit any, let alone numerous,

employment law violations.” J.A. 9. But SMART’s letter

didn’t say otherwise. The letter said that Welch was

accused, investigated, sued, and reported on. SMART’s

statements are “substantially correct,” so none qualify as

“a false statement.” Piscatelli, 35 A.3d at 1147 (quotation

omitted).

***

Welch’s complaint doesn’t plausibly plead a claim on

which relief can be granted, so we affirm the district

court’s judgment dismissing the case. We also dispense

with oral argument because the facts and contentions of

the parties are adequately presented in the materials

before us, and oral argument would not aid in our decision.

AFFIRMED

8a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE DISTRICT

OF MARYLAND, FILED SEPTEMBER 23, 2024

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MARYLAND

Civil Action No. DKC 22-2296

WG/WELCH MECHANICAL CONTRACTORS, LLC

v.

INTERNATIONAL ASSOCIATION OF SHEET

METAL, AIR, RAIL & TRANSPORTATION

WORKERS, LOCAL UNION 100 – SHEET METAL

DIVISION, ET AL.

ORDER

For the reasons stated in the foregoing Memorandum

Opinion, it is this 23rd day of September, 2024, by the

United States District Court for the District of Maryland,

ORDERED that:

1.

The motion to dismiss filed by Defendants

Richard LaBille, III; Charles Sewell; David

Goetzke; and International Association of Sheet

Metal, Air, Rail & Transportation Workers, Local

Union 100-Sheet Metal Division (ECF No. 32)

BE, and the same hereby IS, GRANTED;

2.

The amended complaint filed by Plaintiff WG/

Welch Mechanical Contractors, LLC BE, and

the same hereby IS, DISMISSED; and

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Appendix B

3.

The clerk will transmit copies of the Memorandum

Opinion and this Order to counsel for the parties

and CLOSE this case.

/s

DEBORAH K. CHASANOW

United States District Judge

10a

C

APPENDIX C — Appendix

MEMORANDUM

OPINION

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND, FILED

SEPTEMBER 23, 2024

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MARYLAND

Civil Action No. DKC 22-2296

WG/WELCH MECHANICAL CONTRACTORS, LLC

v.

INTERNATIONAL ASSOCIATION OF SHEET

METAL, AIR, RAIL & TRANSPORTATION

WORKERS, LOCAL UNION 100 – SHEET METAL

DIVISION, ET AL.

MEMORANDUM OPINION

Presently pending and ready for resolution in this

labor law case is the motion to dismiss filed by Defendants

Richard LaBille, III (“Mr. LaBille”); Charles Sewell (“Mr.

Sewell”); and David Goetzke (“Mr. Goetzke”) (collectively,

“Individual Defendants”); and International Association of

Sheet Metal, Air, Rail & Transportation Workers, Local

Union 100-Sheet Metal Division (“Local 100”) (collectively

with Individual Defendants, “Defendants”). (ECF No. 32).

The issues have been briefed, and the court now rules,

no hearing being deemed necessary. Local Rule 105.6.

For the following reasons, the motion to dismiss will be

granted.

11a

Appendix C

I.

Background

The following facts and allegations are set forth in

the amended complaint and construed in the light most

favorable to Plaintiff.

Plaintiff WG/Welch Mechanical Contractors, LLC

(“WGW”) is a mechanical contractor that provides

construction services to residential property developers, or

through general contractors managing such construction

services, in Maryland, Virginia, and the District of

Columbia. (ECF No. 29 ¶ 8). WGW is a non-union employer

in that it does not employ any union workers, does not

draw labor from local union halls, and has never been a

signatory to any collective bargaining agreement. (Id.

¶ 9). Local 100 is the union for sheet-metal trades workers

in the Maryland, Virginia, and District of Columbia

jurisdictions. (Id. ¶ 11).

“Beginning in the early months of 2020, [] Local 100

began taking actions directed at WGW, first, and later at

its customers. WGW had no actual labor or organizing

dispute with Local 100 during times relevant to this

action.” (Id. ¶ 13). WGW “believe[s] and aver[s]” that Local

100’s agents, Mr. LaBille, Mr. Sewell, and Mr. Goetzke,

“conspired together to cause reputational harm to WGW

and to interfere with its existing and prospective business

relationships.” (Id. ¶ 14). Initially, Local 100 passed out

“leaflets, handbills, and other materials at jobsites,” but

its actions soon “evolved into more concerted, unlawful

acts.” (Id. ¶ 15). “By the end of 2020, Local 100 . . . began

targeting WGW’s customers and general contractors by

12a

Appendix C

supplying them with accusatory, false[,] and defamatory

materials and information. Local 100 also targeted

WGW’s lower tier subcontractors that supplied labor and

services on various construction sites.” (Id. ¶ 16). These

actions “were not designed to foster union participation

or affiliation, but were instead made to demonize a

legitimate business and harm its existing and prospective

relationships with its customers, development project

owners and general contractors.” (Id . ¶ 17). “[T]hese

actions have also been directed at causing investigations

with the Office of Attorney General of the District of

Columbia and civil litigation.” (Id.). WGW asserts “[i]t is

believed . . .” that the following actions were “taken solely

to cause WGW financial and reputational harm[:]”

Local 100 began soliciting a subcontractor,

Reyes Plumbing, which had defaulted on

the performance of its contracted work with

WGW. Upon information and belief, Local 100

engaged attorneys for Reyes and prompted,

aided or abetted them, in filing false reports

with oversight agencies and in court filings.

These efforts were an attempt by Local 100 to

falsely paint WGW as using “labor brokers” to

misclassify workers and avoid wage and hour

and tax liabilities. It is believed and averred

that Local 100 also aided and abetted Abriel

Hernandez, owner of Mechanical Plumbing

Crew, a lower-tier subcontractor, in advancing

false and malicious claims against WGW for

labor brokering.

(Id. ¶ 18).

13a

Appendix C

Although “Defendants knew that WGW did not

commit any . . . employment law violations, on or about

April 27, 2022, Defendants mailed notices to WGW’s

customers which have construction contracts with WGW.”

(Id. ¶ 19). This constituted an “effort to maximize financial

harm to WGW and followed their campaign to vilify and

malign WGW in the media, to the business community[,]

and with government agencies.” (Id.). The letter states,

in relevant part:

Please be aware that W.G./Welch Mechanical

Contractors LLC – a contractor working on

the construction of your Sunrise Senior living

center on 1515 Chain Bridge Road, McLean,

VA[] and Sunrise Senior living center 308

Maple Avenue East, Vienna, VA[] – has a

concerning record of potential employment law

violations. Specifically, W.G./Welch has been

accused of failing to pay area standard wages,

not paying employees in a timely manner,

and misclassifying employees as independent

contractors.

The Attorney General’s office for the District

of Columbia is currently investigating W.G./

Welch and one of its subcontractors, Mechanical

Plumbing Crew Co., for alleged violations of

D.C. employment laws, including the Minimum

Wage Revision Act, the Sick and Safe Leave

Act, the Living Wage Act, the Workplace

Fraud Act, and/or the Wage Theft Prevention

Amendment Act. These laws protect employees

14a

Appendix C

from wage and safety abuses, as well as from

being misclassified as independent contractors.

W.G./Welch is also being sued in the Superior

Court for the District of Columbia for allegedly

violating the D.C. Minimum Wage Law, failing

to timely pay wages, and misclassifying

employees as independent contractors in

violation of the D.C. Workplace Fraud Act.

The Washington Hispanic recently reported on

W.G./Welch’s actions. That article is attached.

We want to make sure you are aware that W.G./

Welch has a concerning record when it comes

to the treatment of its workers. If you have any

questions or would like to discuss this issue in

more detail, please do not hesitate to contact

me.

(Id. ¶ 21; see also ECF No. 29-1). Local 100 sent this

letter with “intent, purpose, and malice, so as to damage

an existing business relationship.” (ECF No. 29 ¶ 22).

“Local 100 sent similar letters to other neutral third

parties to damage existing and prospective businesses

relationships.” (Id. ¶ 22). WGW believes and avers that

Local 100 itself “directly initiated” “the legal matters

which [it] relates in the letter[,]” rendering “Local 100’s

relation of these matters . . . disingenuous, false[,] and done

with the specific intention of coercing WGW’s customers

not to work with WGW.” (Id. ¶ 23).

15a

Appendix C

WGW alleges upon information and belief that “Local

100 caused Aluira and Moreno[]1 to initiate the legal

proceedings from the Superior Court for the District of

Columbia by targeting potential plaintiffs, arranging for

their legal counsel and advancing payment for litigation

expenses, and contriving material misstatements of fact

that were include[d] in pleadings filed in that litigation.”

(Id. ¶ 24). WGW believes and avers that “Local 100 initiated

the complaint with the Office of Attorney General to give

facial appearance of legitimacy to the false claims asserted

in the letter[]” and “coordinated and otherwise arranged

for the story related in the article in the Washington

Hispanic.” (Id. ¶ 25).

WGW has “suffered loss of business opportunities[,]”

“incurred significant financial losses to defend against

the orchestrated and false legal proceedings fund[ed] and

directed by Local 100[,]” and “suffered an actual loss of

$10,563,883.00 in annual revenue for the Fiscal Year 2022

due to declining sales attributable to Local 100’s malicious

campaign to damage WGW’s financial relations.” (Id. ¶ 26).

WGW filed a complaint against Defendants on

September 12, 2022, alleging exclusively state law claims

and asserting diversity jurisdiction. (ECF No. 1). On

December 16, 2022, Defendants filed a motion to dismiss

for failure to state a claim. (ECF No. 18). WGW filed

an opposition on December 29, 2022, (ECF No. 20), and

Defendants filed a reply on January 12, 2023, (ECF No.

1. The amended complaint does not provide full names for

“Aluira and Moreno” or explain who they are.

16a

Appendix C

21). On June 23, 2023, the court ordered the parties to

provide the states of citizenship of Local 100’s members

and for each of the individual Defendants to determine

whether diversity jurisdiction exists. (ECF No. 22). On

June 30, 2023, Defendants filed a response stating that 34

of its 2,761 members reside in Pennsylvania, where WGW’s

members hold citizenship, but that “[e]ven if diversity

is lacking, the Court has subject matter jurisdiction

under 28 U.S.C. § 1331 because Section 303 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 187,

completely preempts [WGW’s] state-law claims and

transforms them into claims arising under federal law.”

(ECF No. 23, at 1, 2). On July 6, 2023, the court directed

WGW to respond to Defendants’ arguments. (ECF No. 24).

On July 20, 2023, WGW filed a response asserting

that it is unable to ascertain citizenship of Local 100’s

members who reside in Pennsylvania and that its claims

raise a federal question of potential preemption. (ECF No.

26, at 2-4). WGW requested that the court “issue an order

directing Defendants to provide sufficient information

concerning the citizenship of the purported twenty-one

Pennsylvanians, or, in the alternative, to grant [it] leave

to amend its complaint.” (Id. at 4). On July 28, 2023, the

court issued a memorandum opinion and order dismissing

the complaint because WGW had failed to establish subject

matter jurisdiction on either diversity or federal question

grounds and granting leave to file an amended complaint

that sufficiently alleges the basis for federal jurisdiction.

(ECF Nos. 27; 28).

On August 18, 2023, WGW filed an amended complaint

alleging at least one federal claim. (ECF No. 29). On

17a

Appendix C

September 15, 2023, Defendants filed a motion to dismiss

for lack of jurisdiction and failure to state a claim. (ECF

No. 32). WGW filed a response in opposition on October

13, 2023, (ECF No. 35), and Defendants filed a reply on

October 27, 2023, (ECF No. 36).

II. Standard of Review

A motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) tests the sufficiency of the complaint.

Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th

Cir. 2006). “[T]he district court must accept as true all

well-pleaded allegations and draw all reasonable factual

inferences in plaintiff’s favor.” Mays v. Sprinkle, 992 F.3d

295, 299 (4th Cir. 2021). A plaintiff’s complaint needs only

satisfy the standard of Rule 8(a)(2), which requires a “short

and plain statement of the claim showing that the pleader

is entitled to relief.” “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)

(2)).A Rule 8(a)(2) “showing” requires “stat[ing] a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550U.S. 544, 570 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that

defendant is liable for the misconduct alleged.” Mays, 992

F.3d at 299-300 (quoting Iqbal, 556 U.S. at 663). Legal

conclusions couched as factual allegations are insufficient,

Iqbal, 556 U.S. at 678, as are conclusory factual allegations

devoid of any reference to actual events, United Black

18a

Appendix C

Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th

Cir. 1979).

III. Analysis

WGW brings the following claims in the amended

complaint, each against all Defendants:

1)

Violation of § 8(b) of the National Labor Relation

Act (“NLRA”), as amended § 303 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C.

§ 187

2)

Civil Conspiracy to Violate the National Labor

Relations Act

3)

Defamation/Defamation Per Se

(ECF No. 29).

A.

Information and Belief Pleading

Many of WGW’s allegations are “believed and averred”

and made “on information and belief.” As has been stated

before: “Under the pleading standard the Supreme Court

of the United States articulated in Twombly and Iqbal,

a complaint’s conclusory allegations based solely ‘upon

information and belief’ are ‘insufficient to defeat a motion

to dismiss.’” Van Buren v. Walmart, Inc., 611 F.Supp.3d

30, 36-37 (D.Md. 2020), aff’d, 855 F.App’x 156 (4th Cir.

2021) (quoting Harman v. Unisys Corp., 356 F.App’x 638,

640–41 (4th Cir. 2009)). Further,

19a

Appendix C

As Judge Grimm has noted, it is important

to differentiate “between a case in which

pleading ‘upon information and belief’ is used

as an inadequate substitute for providing detail

as to why the element is present in an action ...

[and the] proper use of ‘upon information and

belief,’ where a plaintiff does not have personal

knowledge of the facts being asserted.” Malibu

Media, 2014 WL 7188822, at *4 (citations and

internal quotation marks omitted). “‘[P]leading

on the basis of information and belief is

generally appropriate’ where information is

‘particularly within defendants’ knowledge and

control.’” Kajoshaj v. N.Y.C. Dept. of Educ., 543

F.App’x 11, 16 (2d Cir. 2013) (quoting Boykin v.

KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008)).

Id. at 37.

Even if information is “particularly within defendants’

knowledge and control,” conclusory pleading is not

permitted: “Pleading on information and belief is a desirable

and essential expedient when matters that are necessary

to complete the statement of a claim are not within the

knowledge of the plaintiff but he has sufficient data to

justify interposing an allegation on the subject.” 5 C.

Wright & A. Miller, Federal Practice and Procedure

§ 1224 (3d ed., April 2019 update) (emphasis added).

As will be discussed below, WGW’s amended complaint

relies far too heavily on “information and belief” without

20a

Appendix C

including sufficient substantive facts to support the

information and beliefs alleged.

B. Count I: NLRA Section 303

In Count I, WGW alleges that Defendants violated

§ 8(b)(4)(B) of the NLRA by “engag[ing] in conduct

specifically intended and directed to third parties to

damage [WGW’s] existing and prospective business

relationships, so as to cause economic harm.” (ECF No.

29 ¶ 31).

Section 158(b)(4)(ii)(B) of the NLRA provides that

[i]t shall be an unfair labor practice for a labor

organization or its agents . . . to threaten, coerce,

or restrain any person engaged in commerce or

in an industry affecting commerce, where . . .

an object thereof is . . . forcing or requiring

any person to cease using, selling, handling,

transporting, or otherwise dealing in the

products of any other producer, processor, or

manufacturer, or to cease doing business with

any other person[.]

29 U.S.C. § 158(b)(4)(ii)(B). Section 303(a) of the LMRA, in

turn, provides that “[i]t shall be unlawful . . . for any labor

organization to engage in any activity or conduct defined

as an unfair labor practice” under § 8(b)(4) of the NLRA.

29 U.S.C.§ 187(a). Section 303(b) provides a private right

of action for “[w]hoever shall be injured in his business

or property by reason or any violation of subsection (a)[.]”

29 U.S.C. § 187(b).

21a

Appendix C

Defendants argue that Count I must be dismissed

against the Individual Defendants either because Section

303 does not provide the court with subject matter

jurisdiction over such claims against individuals, or

because the statute does not provide a remedy against

individuals and thus WGW fails to state a claim. (ECF

No. 32-1, at 9-11). In its opposition, WGW concedes that

individuals are not subject to section 303 claims and

stipulates that the Individual Defendants should be

dismissed from Count I. (ECF No. 35, at 9).

Because only a labor organization can violate § 303(a),

an individual member of a union cannot be held liable

under § 303(b). See, e.g., Lab. Ready Mid-Atl., Inc., v.

Tri-State Bldg. & Constr. Trades Council, No. 2:99-cv0037, 2001 WL 1358708, at *7 (S.D.W.Va. Sept. 21, 2001)

(explaining that section 303 “liability is limited to labor

unions, not individual members[]”); Retail Prop. Tr. v.

United Bhd. of Carpenters & Joiners of Am., 768 F.3d

938, 945 (9th Cir. 2014) (noting that “a § 303 claim cannot

be brought against a union member in his individual

capacity[]”); Prater v. United Mine Workers of Am.,

Districts 20 & 23, 793 F.2d 1201, 1207 (11th Cir. 1986)

(“Section 303 . . . limits recovery against the union to the

organization and its assets and forbids any recovery from

the individual union members.”). Hence, Count I will be

dismissed against Individual Defendants.

WGW also alleges Count I against Local 100.

Defendants argue that the means allegedly utilized by

Local 100 are purely expressive in nature and are not

proscribed by § 8(b)(4), and that WGW has not alleged

22a

Appendix C

that Local 100 engaged in any threatening, coercive,

or restraining conduct. (ECF No. 32-1, at 11-18). WGW

responds that the determination of whether a union’s

objective was forcing others to cease doing business with

a company is a question of fact inappropriate on a motion

to dismiss. (ECF No. 35, at 11) (citing F.A. Wilhelm Const.

Co. v. Ky. State Dist. Council of Carpenters, AFL-CIO,

293 F.3d 935, 940 (6th Cir. 2002); N.L.R.B. v. Int’l Bhd. of

Elec. Workers, Loc. 265, 604 F.2d 1091, 1097–98 (8th Cir.

1979); R.L. Coolsaet Const. Co. v. Loc. 150, Int’l Union of

Operating Engineers, 177 F.3d 648, 655 (7th Cir. 1999);

Fid. Interior Const., Inc. v. Se. Carpenters Reg’l Council

of United Bhd. of Carpenters & Joiners of Am., 675 F.3d

1250, 1259-60 (11th Cir. 2012)). WGW also asserts that

Local 100’s activities were coercive because “Local 100

engaged in a maliciously contrived campaign to publish

false accusations of labor law violations, wage theft and

other illegal conduct to specific customers to strategically

damage Welch, which is conduct prohibited under [Edward

J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 578 (1988)].” (Id. at 12).

To state a claim for violation of § 8(b)(4)(ii)(B), a

plaintiff must allege facts plausibly showing that a labor

organization “threaten[ed], coerce[d], or restrain[ed]” a

neutral person where “an object thereof is . . . forcing or

requiring [that] person . . . to cease doing business with”

the primary employer. 29 U.S.C. § 158(b)(4)(ii)(B). A union

does not violate Section 8(b)(4)(ii)(B) if its conduct is not

threatening, coercive, or restraining, regardless of its

objectives. DeBartolo, 485 U.S. at 578 (“[M]ore than mere

persuasion is necessary to prove a violation of § 8(b)(4)(ii)

23a

Appendix C

(B): that section requires a showing of threats, coercion,

or restraints.”).

WGW alleges that Local 100: (1) passed out leaflets,

handbills, and other materials at jobsites; (2) solicited

Reyes Plumbing, a subcontractor, and engaged attorneys

and prompted, aided, or abetted them in filing reports

with oversight agencies on behalf of Reyes Plumbing;

(3) aided and abetted Abriel Hernandez, the owner of a

subcontractor, in advancing claims for labor brokering;

(4) mailed notices to WGW’s customers; (5) initiated

the legal matters relayed in the notice including by

causing Aluira and Moreno to initiate legal proceedings

in the Superior Court of the District of Columbia by

targeting potential plaintiffs, arranging for their legal

counsel, advancing payment for litigation expenses, and

contriving misstatements of fact included in pleadings,

and by initiating the complaint with the Office of Attorney

General; and (6) coordinated and otherwise arranged for

the story relayed in the Washington Hispanic article.

(ECF No. 29 ¶¶ 15-25). WGW has not alleged that Local

100’s actions were accompanied by violence, picketing,

patrolling, or that Local 100 in any way engaged in threats,

coercion, or restraint.

First, some of these alleged actions are attributed

to Local 100 only on “information and belief.” There are

absolutely no underlying substantiating facts alleged.

Second, leaf letting or handbilling in order to

persuade customers not to do business with a company

does not by itself constitute coercion. DeBartolo, 485

24a

Appendix C

U.S. at 580-81, 588. Handbilling is only actionable if it

“‘threaten[ed], coerce[d], or restrain[ed] any person’ to

cease doing business with another.” Id. at 578. Thus, for

example, handbilling accompanied by “violence, picketing,

patrolling, or other intimidating conduct” is actionable.

Id.; see also 520 S. Mich. Ave. Assocs., Ltd. v. Unite Here

Loc. 1, 760 F.3d 708, 719 (7th Cir. 2014) (“[H]andbilling

involves ‘no violence, picketing, or patrolling and only an

attempt to persuade customers not to shop.’ Such violence,

picketing, or patrolling against neutral actors in a labor

dispute is not protected under federal law or the First

Amendment.” (quoting DeBartolo, 485 U.S. at 580)). Even

if Local 100’s alleged handbilling caused customers or

potential customers not to do business with WGW, “[t]he

loss of customers because they read a handbill urging

them not to patronize a business, and not because they

are intimidated by a line of picketers, is the result of mere

persuasion,”—not coercion. DeBartolo, 485 U.S. at 580.

WGW does not allege any facts regarding the

handbilling other than that Local 100 “pass[ed] out

leaflets, handbills and other materials at jobsites[.]” (ECF

No. 29 ¶ 15). It has not alleged any facts showing that

the handbilling was accompanied by violence, picketing,

or patrolling. See All-City Metal, Inc. v. Sheet Metal

Workers’ Int’l Ass’n Loc. Union 28, No. 18-cv-958-RRMSJB, 2020 WL 1502049, at *7 (E.D.N.Y. Feb. 18, 2020),

report and recommendation adopted, No. 18-cv-958RRM-SJB, 2020 WL 1466017 (E.D.N.Y. Mar. 25, 2020)

(“Without any information about what the flyers say,

how the flyers were used, or when they were distributed,

there is no basis to infer that their use by Local 28 had

25a

Appendix C

any coercive or threatening effect.”); Compass Const.

v. Indiana/Kentucky/Ohio Reg’l Council of Carpenters

of United Bhd. of Carpenters & Joiners of Am., 890

F.Supp.2d 836, 844 (S.D.Ohio 2012) (“[P]laintiffs have not

alleged, apart from threadbare, conclusory recitals, that

defendants’ handbilling, bannering, or letter to Net Jets

was accompanied by violence, picketing, patrolling, or that

defendants’ activity in any way constituted threatening,

coercing, or restraining activity violative of § 8(b)(4)(ii) of

the NLRA or Section 303 of the LMRA.”). Thus, WGW

has failed to allege sufficient facts to show that Local 100’s

handbilling constituted a threat, coercion, or restraint

under § 8(b)(4)(ii)(B).

Third, given the First Amendment right to access

the courts, initiating legal proceedings is only considered

an unfair labor practice when the suit is “based on

insubstantial claims” meaning, suits that lack a “reasonable

basis” or are based on “intentional falsehoods.” Bill

Johnson’s Rests., Inc. v. N.L.R.B., 461 U.S. 731, 741-43

(1983). WGW’s allegations that the legal filings that Local

100 purportedly initiated or helped initiate were “false,”

“malicious,” and contain “material misstatements of fact,”

(ECF No. 29 ¶¶ 18-19, 23-25), are conclusory statements.

WGW’s allegations are based on “information and belief,”

and WGW has not alleged enough facts to support its

allegations either that Local 100 was in fact involved

or that the legal filings lacked a “reasonable basis” or

were based on “intentional falsehoods.” Bill Johnson’s

Rests., 461 U.S. at 743; see also Prime Healthcare Servs.,

Inc. v. Servs. Emps. Int’l Union, 97 F.Supp.3d 1169,

1196-97 (S.D.Cal. 2015) (concluding that the plaintiff’s

26a

Appendix C

allegation that the union had backed a lawsuit against it

did not sufficiently allege facts showing coercive conduct).

Consequently, WGW’s allegations that Local 100 initiated

and helped others initiate lawsuits and file complaints with

the Office of the Attorney General are insufficient to show

that Local 100 engaged in a threat, coercion, or restraint

under § 8(b)(4)(ii)(B).

Fourth, “letter writing . . . has even fewer potentially

coercive, threatening, or restraining characteristics than

does even handbilling or other in-person communication,

and has been held, albeit in other contexts, to enjoy

correspondingly greater First Amendment protection.”

George v. Nat’l Ass’n of Letter Carriers, 185 F.3d 380,

391-92 (5th Cir. 1999) (citing Shapero v. Kentucky Bar

Ass’n, 486 U.S. 466, 474-77 (1988)). WGW alleges that

Local 100 mailed notices to its customers stating that

WGW “has a concerning record of potential employment

law violations” and referencing the Office of the Attorney

General’s investigation, Superior Court lawsuit, and

Washington Hispanic article. (ECF No. 29 ¶¶ 19-21).

Such allegations are insufficient to show that the letters

could be threatening, coercive, or restraining. See, e.g.,

CP Anchorage Hotel 2, LLC v. Unite Here! Loc. 878, 558

F.Supp.3d 800, 815 (D.Alaska 2021), aff’d, No. 21-35827,

2022 WL 2953697 (9th Cir. July 26, 2022) (holding that

sending letters did not constitute an unfair labor practice

because the court could “find no authority that the Union

is prohibited from sending an email, tweet, or letter to

anyone for whom it found an address[]”); Compass, 890

F.Supp.2d at 842 (holding that the plaintiff made no factual

allegations that the union’s mailing of letters constituted

a threat, restraint, or coercion).

27a

Appendix C

Finally, arranging for publication of a newspaper

article arguing not to patronize a business does not

constitute an unfair labor practice. See DeBartolo, 485

U.S. at 583-88; Hasbrouck v. Sheet Metal Workers Loc.

232, 586 F.2d 691, 694 (9th Cir. 1978) (holding that the

publication of a “Do Not Patronize” list in a newspaper,

where a labor dispute existed, “was not an unfair labor

practice under section 8(b)(4) and could not give rise to a

cause of action under section 303[]”); cf. George v. Nat’l

Ass’n of Letter Carriers, 185 F.3d 380, 388 (5th Cir. 1999)

(“The legislative history [of § 8(b)(4)(ii)(B)] reflected no

intent to ban handbilling or other nonpicketing appeals

such as newspaper or radio ads.”). WGW alleges, again

only based on “belief,” that Local 100 “coordinated and

otherwise arranged for the story related in the article

in the Washington Hispanic[,]” (ECF No. 29 ¶ 25), but

does not allege any facts showing that the publication was

threatening, restraining, or coercive, or that Local 100

was responsible for coordinating the publication.

WGW’s reliance on F.A. Wilhelm Construction,

International Brotherhood of Teamsters, R.L. Coolsaet

Construction, and Fidelity Interior Construction is

misplaced. (ECF No. 35, at 11) (citing F.A. Wilhelm

Const, 293 F.3d at 940; Int’l Bhd. of Elec. Workers, 604

F.2d at 1097–98; R.L. Coolsaet Const., 177 F.3d at 655;

Fid. Interior Const., 675 F.3d at 1259-60). These cases

each involve picketing, which is not alleged here, and

do not address a motion to dismiss. The F.A. Wilhelm

Construction, R.L. Coolsaet Construction, and Fidelity

Interior Construction courts did not need to consider the

“threaten, coerce, or restrain” element of § 8(b)(4)(ii)(B)

28a

Appendix C

because it was undisputed that the unions had engaged in

picketing. The International Brotherhood of Teamsters

court did not address § 8(b)(4) at all.

WGW’s argument that Local 100’s activities were

coercive because Local 100 created a controversy by

spreading false information to regulatory bodies and

courthouses through litigation fares no better. (ECF

No. 35, at 12-14). “[F]alse or fraudulent speech might

be defamatory and might fall outside the protections of

the First Amendment, but that does not mean it alone

constitutes ‘coercion.’” Gold v. Mid-Atl. Reg’l Council of

Carpenters, 407 F.Supp.2d 719, 729 (D.Md. 2005) (citing

Kohn v. Sw. Reg’l Council of Carpenters, 289 F.Supp.2d

1155, 1168 (C.D.Cal. 2003) (noting that the plaintiff’s

argument that “the union’s use of fraudulent language on

the banner . . . constitutes unlawful coercive activity within

the meaning of § 8(b)(4)(ii)(B)[]” is an “odd” one because

Ҥ 8(b)(4)(ii)(B) does not specifically prohibit fraudulent

speech, but only threatening, coercive, or restraining

conduct[]”); see also United Brotherhood of Carpenters &

Joiners of America, Local Union No. 1506, 355 N.L.R.B.

797, 811 (2010) (“[A] holding that the banner displays

violated Section 8(b)(4)(ii)(B) because of their purported

falsity would raise serious constitutional questions of its

own.”). The contention that Local 100’s activities were

different from those in other cases involving unions

initiating litigation, handbilling, mailing letters, or

publishing articles because Local Union itself “created

the controversy” fails because section 303 of the LMRA

creates a cause of action for violations of § 8(b)(4) of the

NLRA, which does not make unlawful anything akin to

“creating a controversy.”

29a

Appendix C

WGW has not alleged sufficient facts to demonstrate

plausibly that Local 100 engaged in any threats, coercion,

or restraint. Thus, it is unnecessary to consider whether

WGW has alleged facts demonstrating that Local 100’s

objective was forcing others to cease doing business

with WGW. 29 U.S.C. § 158(b)(4)(ii)(B). Both prongs are

necessary to state a claim under section 8(b)(4)(ii)(B).

Accordingly, Count I will be dismissed.

C.

Count II: Civil Conspiracy to Violate the NLRA

In Count II, WGW alleges that Defendants engaged

in a civil conspiracy to violate the NLRA “by agreeing to

unlawfully and tortiously interfere with Plaintiff’s existing

and prospective business relationships in contravention

of Section 8(b)(4)(B), so as to cause economic and other

compensable damages, and took actions in furtherance of

said conspiracy.” (ECF No. 29 ¶ 34).

Defendants assert that § 303 of the LMRA preempts

Count II because the state law claim in Count II concerns

the exact same alleged secondary activities underlying its

§ 303 claim in Count I. (ECF No. 32-1, at 18-20). WGW

responds that Count II is pleaded as a federal claim, not

a state tort claim. (ECF No. 35, at 15). Defendants reply

that there is no federal common law and WGW has not

pointed to a federal statutory provision creating a cause

of action for civil conspiracy to violate the NLRA. (ECF

No. 36, at 13-14).

Defendants are correct that there is no federal cause of

action for civil conspiracy to violate the NLRA. Abrams v.

30a

Appendix C

Carrier Corp., 434 F.2d 1234, 1253 (2d Cir. 1970) (“[T]here

exists no federal statute conferring independent

jurisdiction upon the federal courts for claims of civil

conspiracy in the labor relations field[.]”) (citing Hall v. Pac.

Mar. Ass’n, 281 F.Supp. 54, 61 (N.D.Cal. 1968) (concluding

that there is no federal claim for civil conspiracy in the

labor relations field)); Cole v. Hall, 35 F.R.D. 4, 8 (E.D.N.Y.

1964) (“[C]onspiracy offers no basis for a suit under the

[Labor-Management Reporting and Disclosure] Act; it is

only the violation of the Act which provides the remedy.”),

aff’d, 339 F.2d 881 (2d Cir. 1965)). Thus, despite WGW’s

disavowal, Count II appears to attempt to allege a state

law claim because Count II recites the elements for civil

conspiracy under Maryland law. (ECF No. 29 ¶ 33) (citing

Hoffman v. Stamper, 385 Md. 1, 24-25 (Md. 2005)).

Section 303 of the LMRA preempts state law actions

for damages resulting from a union’s allegedly unlawful

secondary activities. Loc. 20, Teamsters, Chauffeurs &

Helpers Union v. Morton, 377 U.S. 252, 260-61 (1964).

Under Section 303, a state-law action is preempted if the

alleged conduct at issue falls within the purview of § 8(b)(4).

In Morton, the Supreme Court of the United States

held that the plaintiff’s state law claims concerning a

union’s secondary activities were “displaced by § 303”

because allowing the state to regulate such conduct would

“frustrate the congressional determination to leave this

weapon of self-help available” to unions. 377 U.S. at 260-61.

The allegations that support Counts I and II are

exactly the same. Courts conclude that, when a plaintiff

pleads the same facts to allege a violation of the LMRA

31a

Appendix C

and a state law claim, § 303 preempts the state law

claim. See, e.g., Smart v. Loc. 702 Int’l Bhd. of Elec.

Workers, 562 F.3d 798, 808 (7th Cir. 2009) (“[S]ection

187(b) completely preempts state-law claims related to

secondary boycott activities described in section 158(b)

(4); it provides an exclusive federal cause of action for

the redress of such illegal activity.”); Martines Palmerio

Constr., LLC v. Sw. Reg’l Council of Carpenters, No.

17-cv-02604-CMA-KLM, 2017 WL 5590213, at *4 (D.Colo.

Nov. 21, 2017) (“Plaintiff’s state law claim of tortious

interference with contract, which this Court has already

concluded concerns secondary boycott activities, must be

deemed to arise under § 303. The complete preemption

doctrine therefore applies[.]”); Allstate Interiors Inc. v.

Carpenters, No. 10-cv- 2861-S, 2010 WL 3894915, at *4

(S.D.N.Y. Sept. 10, 2010) (holding that claims for Tortious

Interference with Prospective Contractual Relations . . .

and Prima Facie Tort . . . , which arise from Defendants’

alleged secondary boycott activities, are thus completely

preempted by Section 303 of the LMRA”); Adobe Drywall,

L.L.C. v. United Bhd. of Carpenters & Joiners of Am.,

Loc. Union No. 1506, No. 08-cv-2105-PHX-SRB, 2009 WL

10707035, at *3 (D.Ariz. Feb. 5, 2009) (“Adobe’s claims

for intentional interference with existing and prospective

contractual relations are completely preempted by § 303

of the LMRA[.]”). Because the conduct alleged in Count

II falls within the purview of § 8(b)(4) of the NLRA, § 303

preempts Count II.

Defendant argues in the alternative that Count II

is also preempted under the Supreme Court case, San

Diego Bldg. Trades Council, Millmen’s Union, Loc. 2020

32a

Appendix C

v. Garmon, 359 U.S. 236, 245 (1959). (ECF No. 32, at 2230). The parties devote much time discussing Garmon

preemption and its defamation exception under Linn v.

United Plant Guard Workers of America, Local 114, 383

U.S. 53, 64-65 (1966) (ECF Nos. 32, at 22-30; 35, at 17-20;

36, at 16-19).

Garmon is inapplicable to the dispute in this case

which asserts a claim for alleged secondary boycott

activity that may be brought in this court directly under

29 U.S.C. § 187. It only applies to situations “when a labor

matter must be brought before the NLRB, a complicated

doctrine known as primary jurisdiction.” Retail Prop. Tr.

v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d

938, 951 (9th Cir. 2014) (citing Golden State Transit Corp.

v. Los Angeles, 475 U.S. 608, 613 (1986)). Nevertheless,

the “Garmon principles of labor law preemption underlie

Morton and its progeny,” Retail Prop., 768 F.3d at 951, and

can be instructive. 2 It is unnecessary to address Garmon

preemption and its exception with regard to Count II

because preemption is dictated by Morton. Therefore,

Count II will be dismissed.

D.

Count III: Defamation/Defamation Per Se

In Count III, WGW alleges that Defendants engaged

in defamation by communicating statements of fact to

2. The Ninth Circuit also points out the confusion, or misuse,

of certain terms. “Complete” preemption is best reserved for

discussions of jurisdictional issues, whereas defensive preemption

is referred to as “express,” “field,” or “conflict” preemption. Retail

Prop., 768 F.3d at 947-48.

33a

Appendix C

others that Defendants “knew . . . were false when they

communicated them, or communicated them with reckless

disregard for their truth or falsity, or acted negligently

in failing to ascertain the falsity of the statement before

communicating them.” (ECF No. 29 ¶¶ 37- 38). WGW also

alleges that “[t]he statements . . . constitute defamation

per se in that the statements attribute to [WGW] conduct,

characteristics, or a condition that is incompatible with its

business or trade.” (Id. ¶ 39). Finally, WGW alleges that

“Defendants gave publicity to untrue matters involving

[WGW] that placed it before the public in a false light in

a manner that is highly offensive to a reasonable person.”

(Id. ¶ 41).

Defendants argue that Count III is “completely

preempted because it is premised on Defendants’ letter to

Sunrise Senior Living and Local 100’s other unspecified

statements and activities, all of which [WGW] also claims

constitute ‘conduct specifically intended and directed to

third parties’ in violation of Section 303[.]” (ECF No. 32-1,

at 20). WGW responds that the NLRA does not preempt

Count III because “the facts supporting this defamation

claim do not convert this case into fundamentally a labor

case, but rather a state tort case that complains about the

union’s conduct.” (ECF No. 35, at 16).

The issue of whether section 303 preempts state law

defamation claims is a closer question than that presented

by Count II. The United States Court of Appeals for the

Fourth Circuit has not yet addressed this question, and

several district courts and circuit courts have disagreed

on this issue. See, e.g., Omni Elevator Corp. v. Int’l Union

34a

Appendix C

of Elevator Constructors, No. 19-CV-6778, 2021 WL

3810413, at *10 (W.D.N.Y. Aug. 26, 2021)(“To the extent the

Amended Complaint asserts claims of defamation, tortious

interference with prospective business relations, and

tortious interference with contracts, they are preempted

by LMRA Section 303 and were properly removed to this

Court.”); Paramount Enters., Inc. v. Laborers E. Region

Org. Fund, No. CV13-3295, 2015 WL 5778779, at *5 (D.N.J.

Sept. 30, 2015) (“[T]he Court finds that because Plaintiffs’

allegations of defamation and tortious interference with a

business relationship pertain to conduct that is arguably

covered by Section 303, Plaintiffs have pleaded a federal

claim.”); Silverman v. Verrelli, No. CIV.A. 11-6576, 2012

WL 395665 (D.N.J. Feb. 7, 2012) (relying on the “Seventh

Circuit’s holding in Smart [v. Loc. 702 Int’l Bhd. of Elec.

Workers, 562 F.3d 798 (7th Cir. 2009)] and the Supreme

Court’s strong guidance in Morton” and holding that the

plaintiff’s state law defamation, false light, and invasion of

privacy claims “must be deemed to arise under § 303,” so

“[t]he complete preemption doctrine applies and supports

the removability of Plaintiff’s Complaint based on federal

question jurisdiction (citing Smart 562 F.3d at 801, 808

(analogizing section 303 to section 301 of the LMRA

and finding that section 303 preempts plaintiff’s state

antitrust claim)). But see Retail Prop. Tr., 768 F.3d at

958-9 and 961, n.14 (disagreeing with the Seventh Circuit’s

holding in Smart and finding that there is not field

preemption under section 303, but adding in a footnote

that state libel actions are preempted for “defamatory

statements in labor disputes which were published without

knowledge of their falsity or reckless disregard for the

truth” (quoting San Antonio Cmty. Hosp. v. S. Cal. Dist.

35a

Appendix C

Council of Carpenters, 125 F.3d 1230 (9th Cir. 1997)). If

field preemption applies without further analysis, as found

by some courts, Count III would be precluded. Even if,

however, closer analysis under Garmon is required, this

claim would fail.

As mentioned earlier, the parties argue whether

Garmon preemption applies to Count III, and if so,

whether the Linn defamation exception applies. In

Garmon, the Supreme Court held that “[w]hen an activity

is arguably subject to § 7 or § 8 of the [NLRA], the States

as well as the federal courts must defer to the exclusive

competence of the National Labor Relations Board . . . .”

Garmon, 359 U.S. at 245. As noted above, the Garmon

doctrine does not apply to secondary activity, but its

analysis might inform the analysis under Morton as to

whether field preemption applies.

WGW argues that Local 100’s actions meet an

exception to Garmon, as set out in Linn. In Linn, the

Supreme Court held that libel claims are an exception to

Garmon preemption if “the complainant can show that

the defamatory statements were circulated with malice

and caused him damage.” Linn 383 U.S. at 64-65. The

Court adopted the malice standard from New York Times

Co. v. Sullivan, 376 U.S. 254 (1964), defining malice as

“defamatory statements published with knowledge of their

falsity or with reckless disregard of whether they were

true or false.” Id. at 65. Here, WGW’s allegations of Local

100’s conduct and statements do not include sufficient facts

to plead malice properly under the Linn exception. Nor

are the allegations enough to state a claim for defamation

36a

Appendix C

under Maryland law. See Solomon Found. v. Christian

Fin. Res., Inc., No. 22-CV-0993-JRR, 2023 WL 3058321

(D.Md. Apr. 24, 2023)(discussing at length the elements of

defamation under Maryland law, particularly with regard

to a corporate plaintiff.) Plaintiff must allege a defamatory

statement that has “a tendency to directly affect its credit

or property or cause it pecuniary injury.” Id. at *3 (quoting

Biospherics, Inc. v. Forbes, Inc., 989 F.Supp. 748, 750-51

(D.Md. 1997)).

If Garmon preemption analysis is relevant to this

case, WGW would need to have alleged malice to meet the

Linn exception to escape preemption for its defamation

claim. Here, WGW has not properly alleged malice. As

discussed earlier, WGW has not included sufficient facts

to support any of its “information and belief” allegations.

The only action specifically tied to Defendants (and only

then collectively) is the letter appended as Attachment A to

Sunrise Senior Living Center. The recitation of actions by

the Attorney General of the District of Columbia, the suit

in the Superior Court for the District of Columbia, and the

Washington Hispanic article were true and cannot be used

in support of a defamation claim. The letter categorizes

these as a “concerning record of potential employment

law violations.” (ECF No. 29-1). The letter, by itself, is

insufficient to invoke the Linn exception. Accordingly,

Count III will be dismissed.

37a

Appendix C

IV.

Conclusion

For the foregoing reasons, Defendants’ motion to

dismiss will be granted. A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge