Petition — Dunning v. Boyes

e LOU L

FILED

| FER 10 J97R

\

IN “HE

Supreuwe Court m the United States

OCTOBER TERM, 1977

No @V=-1123

W. D. DUNNING, JOHNNIE KYSER, AZALEA CITY BRANCH

No. 469, NATIONAL ASSOCIATION OF LETTER CARRIERS,

a corporation or association, and NATIONAL ASSOCIA-

TION OF LETTER CARRIERS, a corporation or association,

Petitioners,

v.

EARL BOYES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

MOZART G. RATNER

1900 M Street, N.W.

Washington, D. C. 20036

Counsel for Petitioners

Of Counsel:

OTTO E. SIMON

Van Antwerp Building

Mobile, Alabama 36602

WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001

eBFew 0

OPINIONS BELOW

JURISDICTION

,

QUESTIONS PRESENTED

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED

STATEMENT

1. The Facts

2. Proceedings Below

REASONS FOR GRANTING THE WRIT

I.

II.

Il.

CONCLUSION

The Decision Below Is In Square Conflict With

the Tenth Circuit’s Mendicki Decision on the

Issue of Absolute Privilege and on Interpretation

of Linn

The Decision Below Is In Conflict With the Hold-

ing of This Court in Austin v. Letter Carriers

that Derogatory Expressions of Opinion and

Rhetorical Epithets in Labor Disputes Are Not

Subject to State Libel Actions

The Court Below Erred In Sustaining a Com-

plaint In Which Malice in the New York Times

Sense is Not Alleged

The Questions Presented Are Substantial. and

Important

The Decision Below is a Final Judgment Within

the Meaning of 28 U.S.C. § 1257

on 4) tw

13

SE OE TE eR ee

tl : m

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page | Cases: Page

Appendix A—Supreme Court of Alabama Order grant- Alexander Vv. Gardner-Denver Co., 415 U.S. 36

ing permission to appeal —_.................... la SEE ccd segrereeneseccstomiginmmnenutennornnnpecgrmmepetes 9, 12

Appendix B—Supreme Court of Alabama Decision = S. ay woloyens pecileaied : en 14

affirming Circuit Court —................. 3a Construction Laborers v. Curry, 871 U.S. 542

Appendix C—Supreme Court of Alabama denial of EE silicneeiaindteasiaiiptnllanshatagessantecunenenibecengysigeecenciges 21

application for rehearing —................. 10a a v. ato 358 Us. x 1958) +e 17

, } orbin V. Washington Fire arine Ins. Co., 278

Appendix D—Article XV of the Agreement -............ lla | F.Supp. 398 (D.S.C.), aff’d per curiam 398 F.2d

pI a Sen TR A AE 9, 10,13

- Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

REST N a LEI bis ait PSR LS Da 10, 17, 20, 21

Dombrowski v. Pfister, 380 U.S. 479 (1965) -.......... 17

Farmer Vv. Carpenters, Local 25, 430 U.S. 290

(1977) . “An A He tell NAN tit EA a LF 15, 16

| General Motors Corp. v. Mendicki, 867 F.2d 66

| ed 7,8,9,10,11,13

Gregory V. McDonald Douglas Corp., 17 Cal.3d 596,

552 P.2d 425, 181 Cal. Reptr. 641 (1976) __...... 14, 19

Greenbelt Cooperative Publishing Association Vv.

Bresier, S66 USB. 14 CAUGTO) .-~~---nn-2---0c0eee-0-2----- 14, 19

Letter Carriers Vv. Austin, 418 U.S. 264 (1974) ....7, 8, 13,

14, 15, 16, 17, 19

Linn V. United Plant Guard Workers, 383 U.S. 58

ETS ee 7,11, 15, 16, 20

| Machinists v. Wisconsin Emp. Rel. Comm’n., 427

| eed lS i il 10, 19

| Macy Vv. Trans World Airlines, Inc., 381 F.Supp.

EE RE eS A 10

Marsh Vv. Pacific Motor Trucking Co., 89 LRRM

| 2518 (D.C.C.D. Callif., 1975) -----eccceeee-nooeeeee-o 10

Mills v. Alabama, 384 U.S. 214 (1966) -........... 21

Mock v. Chicago, Rock Island and Pacific Railroad

Co., 454 F.2d 181 (8 Cir., 1972) .. 9

Nash V. Florida Industrial Comm’ ., 389 U. S. 235. 13

Neece V. Kantu, 84 N.M. 700, 507 P.2d 447 (1973).. 10

Newman V. Piggy Park Enterprises, 390 U.S. 400

(1968) 13

IN tt ee a, ee ee TT nam

IV

TABLE OF AUTHORITIES—Continued

Page

New York v. Cathedral Academy, 46 U.S.L.W.

4028 (December 6, 1977) -..........................--.---... 21

New York Times v. Sullivan, 376 U.S. 254 (1964) .. 2, 7, 8,

14, 16, 17, 18, 19, 20

Nolde Bros., Inc. v. Local 358 Bakery & Confec-

tionery Workers Union, 430 U.S. 248 (1977) .... 9

Railroad Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369 (1969) .......... 10

Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.

2d 369, 397 N.Y.S.2d 943 (1977) ........00. 2. 19

Roketenetz v. Woburn Daily Times, Inc., Mass.-

App. 294 N.E.2d 579 (1978) _......................_.. 17, 19

Rougeau Vv. Firestone Tire and Rubber Co., La.

Bn, Te TT eC. dinette 10

Shaffer v. Heitner, 45 U.S.L.W. 4849 (June 24,

TEIVUD tuw-tnisendetadniindinanaaae 21

Silbowitz v. Lepper, 55 Misc.2d 456 (S.Ct. N.Y.

1967), aff’d. 32 A.D.2d 520, 299 N.Y.S.2d 564

IIT wientiinncneumtehenspaniiinn nite 15

Tonsmeire V. Tonsmeire, 281 Ala. 102, 199 So.2

A EON he 19

Warth v. Seldin, 422 U.S. 490 (1975) —......-0. 18

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.

is DETTE. <cveenanietewsedbemensnaatnaieaeiinacaanenas 17

Miscellaneous:

Bt > | ene 2

National Labor Relations Act, 49 Stat. 449, 29

of) Be 6 fF GRR eA ee, 5 4

National Labor Relations Act, § 2(9), 29 U.S.C.

Te UIIPIITED -<nssicarpsciesamsschtapsapieebiesadiseeiiatieninens tana 7

Labor-Management Relations Act, 61 Stat. 201,

At Rf RD ER 4

Postal Reorganization Act, 84 Stat. 785, § 10(b),

RO! EEO 5 ee 3

Postal Reorganization Act, 84 Stat. 735, 39 U.S.C.

> Fe Re 3

Postal Reorganization Act, 84 Stat. 737, 39 U.S.C.

§ 1209(a) -...... 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No.

W. D. DUNNING, JOHNNIE KysER, AZALEA CITY BRANCH

No. 469, NATIONAL ASSOCIATION OF LETTER CARRIERS,

a corporation or association, and NATIONAL ASSOCIA-

TION OF LETTER CARRIERS, a corporation or association,

Petitioners,

v.

EARL BOYEs,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

Petitioners, W. D. Dunning, et al., pray that a writ

of certiorari issue to review the judgment of the Supreme

Court of Alabama in this case.

OPINION BELOW

The opinion of the Supreme Court of Alabama (App.

B, infra, pp. 8a-9a) is not yet reported. No opinion was

rendered by the Circuit Court for the Twelfth Judicial

District, Alabama.

2

JURISDICTION

The judgment of the Supreme Court of Alabama was

entered September 30, 1977, p. 9a, infra. A timely peti-

tion for rehearing was denied on November 18, 1977.

App. C, p. 10a, infra. The jurisdiction of this Court is

invoked under 28 U.S.C. 1257(3). See point 5, infra, pp.

20-21.

QUESTIONS PRESENTED

Whether federal labor law precludes a state libel action

arising out of a grievance proceeding under a collective

bargaining agreement with the United States Postal Serv-

ice, in which a Postal supervisor is charged with dis-

criminatorily denying a merit increase to an employee

because of his race, and, in that context, is labeled a

“known Bigot”. This question comprehends three sub-

sidiary issues:

1. Is a defamatory statement made in the course of,

and relevant to, a federal grievance proceeding absolutely,

or only qualifiedly, privileged under federal labor law?

2. Is the term “known Bigot,” in the context stated,

an expression of opinion protected against state libel law

by federal labor law and policy? :

3. May a state court proceed to trial on a libel com-

plaint arising out of a labor dispute which fails to allege

“malice” in the New York Times* sense?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article VI, paragraph 2, of the Constitution of the

United States provides:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made, under

the Authority of the United States, shall be the su-

* New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

|

preme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Con-

stitution or Laws of any State to the Contrary not-

withstanding.”

Article I, Section 8, provides in relevant part: “The

Congress shall have power * * * To regulate Commerce

* * * among the several States * * *;” and “To establish

Post Offices and post Roads.”

The pertinent provisions of the Postal Reorganization

Act are as follows:

89 U.S.C. § 1209(A) [84 Stat. 737]:

“Employee-management relations shall to the ex-

tent not inconsistent with provisions of this title, be

subject to the provisions of sub-chapter II of chapter

7 of title 29 [the N tional Labor Relations Act].”

39 U.S.C. § 1201 (note to Sec. 10) [84 Stat. 785, § 10(b)

of the Act]:

“Any agreement negotiated under this section shall

establish a new wage schedule whereunder postal

employees will reach the maximum pay step for

their respective labor grades after not more than 8

years of satisfactory service in such grades. The

agreements shall provide that where an employee had

sufficient satisfactory service in the pay step he oc-

cupied on the effective date of this section to have

qualified for advancement to the next highest pay

step under the new wage schedule, had such schedule

been in effect throughout the period of such service,

the employee shall be advanced to such next highest

pay step in the new schedule on the effective data

of the new schedule.”

39 U.S.C. § 1206(a) and (b) [84 Stat. 735]:

“(a) Collective-bargaining agreements between the

Postal Service and bargaining representatives recog-

nized under section 1203 of this title shall be effec-

tive for not less than 2 years.

d

“(b) Collective-bargaining agreements between the

Postal Service and bargaining representatives recog-

nized under section 1203 may include any procedures

for resolution by the parties of grievances and ad-

verse actions arising under the agreement, including

procedures culminating in binding third-party arbi-

tration, or the parties may adopt any such proce-

dures by mutual agreement in the event of a dis-

pute.”

The pertinent provisions of the National Labor Rela-

tions Act, 49 Stat. 449, 29 U.S.C. § 151 et seq., are as

follows:

“151. * * * It is declared to be the policy of the

United States to * * * encourag[e] the practice and

procedure of collective bargaining and protect[] the

exercise * * * of full freedom of association, self-

organization, and designation of representatives of

their own choosing, for the purpose of negotiating

the terms and conditions of their employment or

other mutual aid or protection.

“152. When used in this subchapter * * * (9)

The term ‘labor dispute’ includes any controversy

concerning terms, tenure or conditions of employ-

ment * #*# iad

The pertinent provisions of the Labor-Management Re-

lations Act, 61 Stat. 201, 29 U.S.C. §171 et seq., are

as follows:

“171. It is the policy of the United States that—(a)

sound and stable industrial peace * * * can most

satisfactorily be secured by the settlement of issues

between employers and employees through the proc-

esses of conference and collective bargaining between

employers and the representatives of their employ-

ees; * * #

“173(d) Final adjustment by a method agreed upon

by the parties is declared to be the desirable method

i i

5

for settlement of grievance disputes arising over the

application or interpretation of an existing collec-

tive-bargaining agreement * * *.”

STATEMENT

1. The Facts. Respondent Earl Boyes filed a common

law libel action in the Circuit Court of Mobile County,

Alabama, claiming damages of $50,000 from petitioners

for “falsely and maliciously” characterizing him as a

“known Bigot” in a letter sent to an official of the United

States Postal Service (“the Service” or “USPS”). As

appears on its face, the letter (infra, pp. 8a-9a), was a

step in prosecution of an employee grievance under the col-

lective bargaining contract between the Service and peti-

tioner National Association of Letter Carriers (NALC).

Petitioner Azalea City Branch No. 469 (“Branch”) is

an autonomous local union affiliated with NALC. Under

Executive Order 11491 and (subsequently) the Postal

Reorganization Act and the National Labor Relations

Act, the Service has at all relevant times recognized the

NALC and its Branch 469 as the exclusive bargaining

agent for city letter carriers in the area of Mobile,

Alabama.

Throughout the period in question, wages, hours and

working conditions of all city letter carriers nationally

have been governed by an Agreement between the Service

and NALC, pertinent provisions of which are set out in

App. D, infra, at pp. 11a-17a, p. 6, n.1 and pp. 12-13, n.4.

Article XV of that Agreement establishes a grievance-

arbitration procedure and defines a “grievance” as any

“dispute * * * or complaint” relating to “wages, hours,

id conditions of employment,” including any complaint

involving the “interpretation, application of, or compliance

with” the Agreement (pp. 1la-17a). The procedure con-

sists of a series of “steps” to be followed in the resolution

of such disputes, including Step 2A which provides for an

TODO

6

appeal in writing to “the installation head or his designee.”

At this step the grievant is represented by a “steward or

a Union representative” (ibid.).

Pursuant to these provisions, a letter was sent to the

Postmaster of the Mobile, Alabama, station on May 9,

1976, on the official stationery of petitioner Branch. The

letter (which is appended to the opinion of the court be-

low, App. B, infra, at pp. 8a-9a) identifies itself as “an

appeal to Step 2A of a grievance decision” rendered by

respondent, Assistant Superintendent (204-B)* Earl

Boyes. It asserts in substance that the decision appealed

from denied letter carrier Johnnie Kyser the “step”

wage increase to which he was entitled under Article

IX, Section 5, of the National Agreement between the

Postal Service and petitioner NALC,’ which effectuates

the mandate of Section 10(b) of the Postal Reorganiza-

tion Act, 84 Stat. 785 supra, p. 3. The letter continues:

“Kyser’s] record does not indicate a serious unsatis-

factory service in the performance of his duties. In

fact! [sic] It displays a good job. However, it does

smack of Racial Overtones. He is the only [one]

denyed [sic] a step increase in the station. He is

also Black. He had no trouble until Earl Boyes, a

known Bigot, arrived at the Station.”

The letter was signed by petitioner Kyser as the

“Aggrieved” and petitioner Dunning as “Shop Steward”.

Boyes brought suit against both Kyser and Dunning and

against petitioners Branch No. 469 and NALC.

*In Postal Service parlance, the designation “(204(b))” indicates

temporary as distinguished from permanent status.

1 Article IX, Section 5, effective July 21, 1975 through July 20,

1978, tracks the two preceding National Agreements. It reads:

“Granting Step Increases. The Employer will continue the pro-

gram on granting step increases for the duration of this Agree-

ment.”

7

2. Proceedings Below. Defendants (petitioners here),

moved to dismiss the complaint on federal preemption

and conflict grounds, asserting (1) that the letter com-

plained of was a step in the orderly and peaceful resolu-

tion of a labor dispute through the grievance procedure

established by a federally mandated collective bargaining

agreement and was therefore absolutely, rather than

qualifiedly, privileged under the federal preemption doc-

trine;* (2) that the term “known Bigot,” in context, may

not be deemed a false statement of “fact,” but must be

considered a federally protected expression of “pejorative |

opinion” or “rhetorical hyperbole”; and (3) that the

complaint is fatally defective for failing to plead “malice”

in the New York Times v. Sullivan sense, citing, inter

alia, Linn v. United Plant Guard Workers, 383 U.S. 53

(1966) and Letter Carriers v. Austin, 418 U.S. 264

(1974). The trial court denied petitioners’ motion (App.

3a, infra).

The Supreme Court of Alabama granted petitioners’

petition to appeal from the denial (App. la, infra), which

it characterized as holding “in effect * * * that Alabama

should recognize only a qualified privilege to communica-

tions made in the course of a labor grievance proceeding,

and that whether the reference to the plaintiff as a known

Bigot was libellous was a question for a jury.” (App. 3a,

infra). The Alabama Supreme Court affirmed. [bid., 3a,

5a, 6a, 7a. It rejected the Tenth Circuit’s interpretation

of Linn in General Motors Corp. v. Mendicki, 367 F.2d

66, 71-72 (10 Cir. 1966), which holds that the “malice”

exception from federal preemption is inapplicable to state-

2 The term “labor dispute” is defined by the National Labor Rela-

tions Act, §2(9), 29 U.S.C. 152(9), to include “any controversy

concerning terms * * * of employment.” This definition is made ap-

plicable to the Postal Service by the Postal Reorganization Act, 39

U.S.C. §1209(a), 84 Stat. 737. The federal preemption doctrine

applicable to labor relations affecting commerce generally is ap-

plicable to labor relations in the Postal Service. Letter Carriers v.

Austin, 418 U.S. 264, 273-278 (1974).

8

ments “made in the course of and relevant to a federal

grievance proceeding” and adopted what “we consider is

a better rule” for such proceedings, i.e., qualified rather

than absolute privilege (p. 5a, infra). It also rejected

defendants’ claim that the use of “robust language,” such

as “known Bigot,” is “expressly fostered by Congress and

approved by the NLRB” (Austin, supra, 418 U.S. at 272)

(pp. 6a-7a, infra). Finally, the court sustained the ade-

quacy of the complaint, holding that although malice in

the New York Times sense was not pleaded

“The plaintiff may be able to prove that the char-

acterization of him was a deliberate or reckless un-

truth. The jury could infer that the characterization

meant that Boyes discriminated against Kyser be-

cause of Kyser’s race. If the charge were true, it

could have meant that Boyes was guilty of violating

Federal laws and regulations. See 42 U.S.C. 2000e-

16 (1974), and Postal Service, 839 C.F.R. § 447.25

(1976).” (p. Ta, infra).

On November 18, 1977, defendants’ motion for rehearing

was overruled without opinion (infra, App. C, p. 10a).

REASONS FOR GRANTING THE WRIT

I. The Decision Below is in Square Conflict With the

Tenth Circuit’s Mendicki Decision on the Issue of

Absolute Privilege and on Interpretation of <inn.

A. On the question whether statements made in the

course of and relevant to federal grievance proceedings

are absolutely or only qualifiedly privileged, the decision

below is admittedly in square conflict with Mendicki, p. 7,

supra. In Mendicki, the Court of Appeals ordered dis-

missal of a slander suit based upon defamatory state-

ments made by employer representatives at a grievance

conference held pursuant to a collective labor agreement

concerning the employee-plaintiff’s claim of wrongful dis-

charge. The court held that defamatory “statements made

a ————

either by representatives of management or by representa-

tives of an employee at a conference and bargaining

session [for] the adjustment of a grievance of the em-

ployee * * * are unqualifiedly privileged” (367 F.2d at

70). The decision was grounded on “[the] declared policy

of the national legislation on labor relations * * * to

encourage, facilitate and effectuate the settlement of is-

sues between employers and employees through the ‘pro-

cesses of conference and collective bargaining * * *’ in

order to promote and preserve industrial peace” (id.).*

The court held that Congress intended that participants

in such conferences “should feel free to express their

respective contentions as to the pertinent facts and issues

involved fully and frankly and to strongly support their

positions with respect to the controversy * * * ‘untram-

melled by fear of retribution for strong utterances’ ” (id.,

at 71).

The inadequacy of qualified privilege to protect full

freedom of relevant utterance in judicial and quasi-

judicial proceedings, including arbitration, is recognized

in federal law. Mock v. Chicago, Rock Island and Pacific

Railroad Co., 454 F.2d 181, 188-135 (8 Cir., 1972);

Corbin v. Washington Fire & Marine Ins. Co., 278 F.

Supp. 393, 395-397, 398, n. 14 (D.S.C.), aff'd per curiam,

398 F.2d 543 (4 Cir., 1968). Qualified privilege is at

least equally inadequate to achieve the Congressionally

sponsored objective of grievance and collective bargaining

proceedings—settlement of disputes—as the Mendicki

court recognized. It is indisputable that the attraction

and effectiveness of contract grievance procedure as a

* This Court has repeatedly stressed the overriding importance in

national labor policy of channelling labor disputes concerning in-

terpretation or application of collective bargaining agreements into

grievance proceedings culminating in arbitration. Nolde Bros., Inc.

Vv. Local 358 Bakery and Confectionery Workers Union, 430 U.S. 243,

253 (1977) ; Alexander v. Gardner-Denver Co., 415 U.S. 36, 46, n. 6

(1974) and accompanying text.

10

safety valve and substitute for strikes and the chances

of successful adjustment of labor disputes through such

procedures would suffer if the parties were to any degree

restrained from free and vigorous presentation of their

respective contentions by fear of having to defend a state

court defamation suit or suffering a judgment for dam-

ages therein. Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 485-486 (1975).

For that reason it has been held that “Tajn absolute

privilege * * * exists under federal law as to statements

and communications made in compliance with require-

ments of a collective bargaining agreement mandated by

the [federal] act.” Macy v. Trans World Airlines, Inc.,

381 F.Supp. 142, 148 (D. Md. 1974), citing authorities.

To qualify or restrict that privilege “would frustrate

effective implementation of the [N ational] Act’s pro-

cesses.” Railroad Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369, 380 (1969), quoted in Machinists v. Wis-

consin Emp. Rel Comm’n, 427 U.S. 132, 147-148 (1976).

State courts, as well as federal courts, have followed

Mendicki in so holding. Neece v. Kantu, 84 N.M. 700,

507 P.2d 447, 452-454 (1978) ; Rougeau v. Firestone Tire

and Rubber Co., La. App., 274 So. 2d 454, 457, n. 1

(1973) ; Corbin v. Washington Fire & Marine Ins. Co.,

supra; Marsh v. Pacific Motor Trucking Co., 89 LRRM

2518, 2522 (D.C.C.D. Calif., 1975).

The court below did not articulately evaluate the im-

pact of denial of absolute privilege upon the effective

presentation of adversary positions in grievance proceed-

ings. Instead, it followed an intermediate New York

State court decision holding that the scope of privilege for

utterances in federally mandated grievance proceedings is

governed by state rather than federal law because:

“there are no express provisions of Acts of Congress

specifically governing defamation actions arising

from statements made during the course of a labor

al

grievance proceeding, nor prohibiting a State court

from applying its own laws, where not inconsistent

with national labor policies.” Bird v. Meadow Gold

Products Corp., 1969. 60 Misc.2d 212, 302 NYS 2d

701.

The Alabama Supreme Court held that recognition of

only a qualified privilege in the grievance context is not

“inconsistent with national labor policy” because qualified

privilege is the “general rule” established in Linn (p. 5a,

infra), and because

“ “Malicious libel enjoys no constitutional protection

in any context,’ the Court said in Linn. ‘After all,

the labor movement has grown up and must assume

ordinary responsibility,’ the Court added.” (p. 6a,

infra).

B. In holding that the “malice” exception extends to

statements in grievance proceedings, the Alabama court

interpreted Linn exactly contrary to the Tenth Circuit’s

interpretation in Mendicki. The Tenth Circuit perceived

that the “malice” exception was designed, pro tanto, to

curb the use of deliberate falsehood as a weapon of con-

flict in the waging of labor disputes, but, unlike the

Alabama court, also recognized that the Linn curb must

stop short of formal proceedings mandated by federal

collective bargaining contracts to adjust disputes—for

extension would defeat the very object Congress sought

to gain through encouraging such proceedings. The court

below in this case, however, evidently interpreted the

phrase “in any context,” in Linn (p. 11, supra), to mean

“in any forum” or “in any proceeding,” an interpretation

which would overturn the established application of the

absolute privilege rule to defamatory utterances in fed-

eral judicial, quasi-judicial and arbitration proceedings,

pp. 9-10, supra. Of course, there is not a scintilla in Linn

to suggest that this Court had any such result in mind,

or that the phrase “in any context” was more than a

+ .¢— «+ ~

12

reference to other kinds and subjects of dispute than labor

issues. ,

C. The instant case is a singularly egregious illustra-

tion of the incompatibility of qualified privilege in the

grievance procedure context with the objectives of na-

tional labor policy. The underlying dispute was whether

the denial of a step increase to petitioner Kyser, as-

sertedly for inadequate performance, was in fact justified.

The offending letter was a formal presentation to the

employer’s designated representative, setting out the case

for the aggrieved employee, submitted in step 2(a) of the

contractual grievance procedure. The letter discussed

Kyser’s work record, denied that it warranted withhold-

ing of a step increase, and, by way of supporting the

claim that racial animus rather than performance was

the true reason for the denial, stated that Kyser was the

only one in the Station who was refused a step increase,

that Kyser was black, that he had had no trouble until

Boyes arrived at the station and that Boyes was a “known

Bigot” (p. 6, supra). This characterization of Boyes

was clearly pertinent to the issue in dispute, and be-

yond doubt, the dispute was subject to the grievance

procedure. Alexander vy. Gardner-Denver Co., 415 U.S.

36, 44-60 (1974). Holding that characterization unpro-

tected because it may be read as charging Boyes with

“violating Federal laws and regulations,” supra, not only

chills freedom of expression in grievance proceedings

generally, but specifically impairs the Congressionally

protected right to charge racial discrimination in em-

ployment in contractual grievance proceedings‘ (Alex-

* Article II, Section 1, of the National Agreement provides :

“Section 1. The Employer and the Unions agree that there

shall be no discrimination by the Employer or the Unions

against employees because of race, color, creed, religion, national

origin, sex, age, or marital status or because of a physical

handicap with respect to a position the duties of which can be

18

ander case, supra; cf. Nash v. Florida Industrial Comm’ n.,

389 U.S. 235), thereby flouting another Congressional

policy of “highest priority”. Newman v. Piggy Park En-

terprises, 390 U.S. 400, 402 (1968). ;

In the courts below plaintiff-respondent argued that

the characterization exceeded the bounds of qualified privi-

lege under Alabama law because it was “gratuitous,” not

“reasonably necessary” to settlement of the grievance and

not “just and fair”. Brief of Appellee to the court

below, pp. 3, 10-11. That ground is in square conflict

with the federal case law under which absolute privilege

is not confined to the minimally “necessary”: it covers all

statements which are “relevant” (Mendicki! case, supra),

or “pertinent” (Corbin case, supra), to presentation or

defense of a grievance. Immunity extends to statements

which are even “arguably relevant” (Austin case, supra,

418 US. at 279), for Austin, at 283, holds that courts

are not authorized to substitute their judgment for that

of a protagonist as to what “rhetoric is an effective

means to make its point.” The court below conceded ( p.

3a, infra) that the allegedly defamatory characteriza-

tion was relevant and pertinent to the grievance.

II. The Decision Below is in Conflict With the Holding

of This Court in Austin v. Letter Carriers That Derog-

atory Expressions of Opinion and Rhetorical Epithets

in Labor Disputes Are Not Subject to State Libel

Actions.

The grievance proceeding context aside, the decision

below is in conflict with this Court’s holding in Austin,

supra, at 284, that “[bJefore the test of reckless or know-

ing falsity can be met, there must be a false statement

of fact,” in contrast to “[e]xpression of * * * an opinion,

eciap cobain wit = o eae

handicap without danger health or safety physically

handicapped person or to others.”

14

even in the most pejorative terms.” In that case, union

newsletters had characterized plaintiffs as “scabs,” de-

fining “scab” in such terms as “a traitor to his God ; his

country, his family, and his class,” with a “backbone

of jelly and glue,” and a “tumor of rotten principles”

(id. at 268). These pejorative ascriptions were held

immune to libel suits under the New York Times stand-

ard, because “words like ‘traitor’ cannot be construed as

representations of fact” (id. at 284); they are rather

expressions of opinion, “loose language and undefined

slogans that are part of the conventional give-and-take

in our economic and political controversies” (id.). To

use such slogans, the Court said, “is not to falsify facts,”

citing Cafeteria Employees Local 302 v. Angelos, 320

U.S. 293, 295 (1943), which dealt similarly with the

terms “fascist” and “unfair” in union picketing.

In Gregory v. McDonald Douglas Corp., 17 Cal. 3d

596, 552 P.2d 425, 181 Cal. Reptr. 641 ( 1976), the Su-

preme Court of California, on the authority of Austin,

affirmed dismissal of a defamation action brought by

union leaders who had been characterized in an employer

bulletin as willing to sacrifice their members’ interests

for their own personal ambitions. These charges, the

court said, are “of the kind typically generated in the

‘economic give-and-take’ of a spirited labor dispute, in

which the judgment, loyalties, and subjective motives of

rivals are reciprocally attacked * * *” (552 P.2d at 429).

The term “bigot” is a commonplace pejorative in the

context of race discrimination controversy. “Bigot” is

defined in Webster’s New International Dictionary (Sec-

ond Edition), p. 266, as “one obstinately and irrationally,

often intolerantly, devoted to his own * * * belief, or

opinion.” Certainly the term carries no more opprobrium

than “fascist,” “traitor,” “backbone of jelly,” “rotten

principles,” or “blackmail,”—which this Court, in Green-

belt Cooperative Publishing Association v. Bresler, 398

15

U.S. 6, 14 (1970), characterized as “no more than rheto-

rical hyperbole, a vigorous epithet used by those who

considered [the plaintiff’s] negotiating position extremely

unreasonable.”

In the instant case, the phrase “known Bigot” was

clearly used as “an effective means to make” the writers’

point that, in their opinion, Boyes was considered preju-

diced against blacks, and that his denial of the step in-

crease had been based on racial antipathy rather than

Kyser’s performance. It was a colorful assertion of the

writers’ opinion of Boyes’ reputation, not a representation

of fact. The identical conclusion was reached in an ear-

lier case which, by strange coincidence, also involved a

charge of prejudice made by a Letter Carrier Union offi-

cial against a Postal supervisor in a letter to the local

Postmaster. In that case, Silbowitz v. Lepper, 55 Misc.2d

456, 459 (S. Ct. N.Y., 1967), aff'd 32 A.D.2d 520, 299

N.Y.S.2d 564, 567 (1969), the court said:

“The characterization by Lepper of the plaintiff's

actions as ‘vicious and discriminating’ is nothing

more than an expression of Lepper’s opinion based

upon his contentions as set forth in the letter. This

expression of an opinion, although having a tendency

to establish the existence of the ill will of Lepper

toward plaintiff, does not furnish the basis for a

finding of actual malice within the meaning of the

Times Vv. Sullivan rule.”

The court below explicitly rejected, albeit without ex-

planation (p. 6a-7a, infra), petitioners’ contention based,

inter alia, on Linn, 383 U.S. at 58 and Austin, 418 U.S.

at 286, that the “type of robust language and clash of

strong personalities that may be commonplace in various

labor contexts” (Farmer v. Carpenters, Local 25, 430

U.S. 290, 305-306 (1977) ) is “protected by federal law,”

Austin, supra, at 283, and therefore “immune to state

libel law.” Although it quoted this Court’s statement in

16

Farmer (id., p. 6a) that “[t]he potential for undue inter-

ference with federal regulation would be intolerable if

state tort recoveries could be based upon such common-

place derogatory expressions,” and conceded that “robust

language is sometimes used in labor disputes” (id., p. 7a),

the Alabama court drew the opposite conclusion: “it is

for a jury to say whether [the “robust language”] was

an abuse of the qualified privilege under all the facts and

circumstances of the case.” The Supreme Court of Ala-

bama thereby misinterpreted this Court’s decisions.

III. The Court Below Erred in Sustaining a Complaint in

Which Malice in the New York Times Sense is not

Alleged.

The decision below misconceives the scope of immunity

to state defamation jurisdiction established by Linn,

supra. That decision held “that libel actions under state

law [are] preempted by the federal labor laws to the ex-

tent that the State [seeks] to make actionable defamatory

statements in labor disputes which were published with-

out knowledge of their falsity or reckless disregard for

the truth.” Austin, supra, 418 U.S. at 278. To invoke

state court jurisdiction under Linn, a complaint must

plead that “the statements were made with malice [in

the New York Times sense] and injured” the plaintiff.

Linn, supra, at 55. Because the complaint in Linn did

not “make the specific allegations that we find necessary

in such actions,” this Court remanded with leave to Linn

to amend his complaint “to meet these requirements.”

383 U.S. at 66.

* Of course, the complaint herein is additionally defective under

Linn, inasmuch as it does not allege that the so-called libel injured

plaintiff. Actual damages may not be deemed to be implicitly al-

leged, for the Alabama Code of Civil Procedure requires that

“(w]here special damages are claimed, they shall be specifically

stated [in the complaint]”. 23 Code of Ala., Rule 9(g).

17

The pleading requirements are constitutionally juris-

dictional. Under the preemption doctrine, state power

does not extend to defamation in labor disputes which

does not satisfy the New York Times “malice” standard.

To sustain a complaint deficient in this respect is to

impose on parties to labor disputes the burden and ex-

pense of litigation which, by virtue of the Supremacy

Clause, a state is not constitutionally empowered to con-

duct. Cooper v. Aaron, 358 U.S. 1, 18 (1958). The

threat of such litigation cannot fail to impede and chill

the “freewheeling use of the written and spoken word

* * * [which] has been expressly fostered by Congress

and approved by the NLRB.” Austin, supra, 418 U.S. at

272; Washington Post Co. v. Keogh, 365 F.2d 965, 969

(D.C. Cir., 1966) :

“The threat of being put to the defense of a lawsuit

brought by a popular public official [or an adversary

in a labor dispute] may be as chilling * * * as fear

of the outcome itself * * *,”

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, this

Court recognized that for a state to permit a trial to be

held where, under federal standards, “there should be no

trial at all” (id., at 485), can “only further harm” free-

dom of expression. (id., at 486). Cf. Dombrowski v.

Pfister, 380 U.S. 479, 487 (1965). Accordingly, unless

malice in the New York Times sense is adequately pleaded,

_the Supremacy Clause necessarily “forecloses further pro-

ceedings [on the complaint] in the state court.” 420 US.

at 486, n. 13. Foreclosure

“* * * accords with the Times objective to minimize

the inhibiting effect of the expense involved in de-

fending libel suits on ‘the vigor and . . . the variety

of public debate.’ New York Times Co. v. Sullivan,

876 U.S. 254, 279; Time, Ine. v. Hill, 385 U.S. 374,

389.” Roketenetz v. Woburn Daily Times, Inc., Mass.

App., 294 N.E.2d 579, 584 (1978).

18

Of course, the New York Times standard cannot be

satisfied by merely pleading the legal conclusion that the

alleged falsehood was published “with knowledge of its

falsity or in disregard of its truth.” The pleader “must

allege facts from which [the inference of knowing or

heedless falsehood] reasonably could be inferred * * *.”

Warth v. Seldin, 422 U.S. 490, 504 (1975) (emphasis

added). As stated in Roketenetz, supra, (id.) :

“[{ T]he ‘actual malice’ required by the Times case is,

as Prosser points out, akin to deceit and misrepre-

sentation, rather than motive. Prosser, Torts (4th

ed.) § 118, p. 821. It should, therefore, like fraud,

be pleaded with particularity greater than the bare

phrase. * * * The mere incantation of the words ‘ac-

tual malice’ should not be enough to put a defendant

to the expense of a trial.’

° The Federal Courts have recognized this consideration and

have held summary judgment (Rule 56, Fed.R.Civ.P.) appro-

priate to avoid a trial. Bon Air Hotel, Inc. v. Time, Inc., 426

F.2d 858 (5th Cir. 1970), and cases cited. * * * ‘[A]ctual

malice’ in the Times sense is not merely ‘a condition of mind,’

but more nearly like fraud as to which the first sentence of

Rule 9(b), Fed.R.Civ.P. applies (‘in all averments of fraud or

mistake, the circumstances constituting fraud or mistake

shall be stated with particularity’). See Linn v. Plant Guard

Workers, 383 U.S. 53, 65-66.”

The complaint in the instant case alleges neither knowl-

edge of falsity nor disregard of truth; it alleges only that

the statements were made “falsely and maliciously” and

“with intent to defame plaintiff and injure him * * *”.

* The complaint read in its entirety as follows :

“The plaintiff claims of the defendants Fifty Thousand and

No/100 Dollars ($50,000.00) damages for falsely and malicious-

ly publishing of and concerning him in a letter written in Mo-

bile, Alabama, to Postmaster Edward Fuller, the following

matter, with intent to defame plaintiff and injure him in his

employment status, ... :

‘That defendant, Kyser ‘* * * had no trouble until Earl

Boyes, a known Bigot, arrived at the station.’”

19

This is the standard form for charging common law libel

based on words actionable per se.’ That is “insufficient

to make out a cause of action under the Times stand-

ard.” Roketenetz, supra, 294 N.E. 2d, at 583-584 (1978).

Whether a complaint meets the Linn tests (and in

particular whether the language complained of may be

considered a fact subject to the test of truth or falsity)

is a question of federal law for the court, not a question

of fact or of state law which a state may leave to a jury.

Austin, supra, 418 U.S. at 282; Greenbelt Publishing

Assn. V. Bressler, 398 U.S. 6, 11; Rinaldi v. Holt, Rine-

hart & Winston, Inc., 42 N.Y. 2d 369, 397 N.Y.S. 2d

943, 951 (1977). Gregory v. McDonnell Douglas Corp.,

17 Cal. 3d 596, 552 P.2d 425, 131 Cal. Reptr. 641 (1976).

Moreover, this Court has admonished that the availability

under federal law of economic weapons to parties to labor

disputes cannot “depend upon the forum in which [a

party] presses its claims.” Machinists vy. Wisconsin Em-

ployee Relations Commission, 427 U.S. 182, 152. A fortiori,

it cannot depend upon the standards of a particular state

court or jury as to what language is unjustified or

abusive (see, id., n. 15).

IV. The Questions Presented Are Substantial and

Important.

The intrinsic importance of the questions presented is

self-evident. They involve major issues of interpretation

and application of this Court’s preemption decisions in

the area of defamation in labor disputes, an area which

has repeatedly drawn this Court’s concern. The present

issues affect the day to day conduct and potential sub-

jection to court litigation of all parties to labor disputes

*In Alabama, if the language complained of is deemed to expose

the plaintiff to “public ridicule or contempt,” damage is presumed

and the language is actionable without more. Tonsmeire v. Tons-

meire, 281 Ala. 102, 199 So.2d 645 (1967). See Linn, supra, 383 U.S.

at 58, n.2 and accompanying text.

_ 20

governed by federal law. The first subsidiary question

affects the course of all grievance proceedings under con-

tracts governed by federal law.’ The decision below may

reasonably be expected adversely and substantially to

diminish the effectiveness of the system of adjustment

Congress relied on to preserve industrial peace, not only

in Alabama, but everywhere the decision below becomes

known. The third subsidiary question has implications

beyond Linn, for it affects application of the New York

Times doctrine to all defamation complaints, not merely

to those arising out of labor disputes.

V. The Decision Below is a Final Judgment Within the

Meaning of 28 U.S.C. § 1257.

In Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. at

467-487, this Court held the finality requirement of 28

U.S.C. § 1257, satisfied by decisions “in which the highest

court of a state has finally determined the federal issues

present in a particular case, but in which there are fur-

ther proceedings [even entire trials] in the lower state

courts to come” (id. at 477, 479), if

“reversal of the state court on the federal issue

would be preclusive of any further litigation on the

relevant cause of action rather than merely control-

ling the nature and character of, or determining the

admissibility of evidence in, the state proceedings

still to come * * * [and] a refusal immediately to

review the state court decision might seriously erode

federal policy * * *.” (Id. at 482-483).

In Cox, the federal policy threatened with erosion was

freedom of speech guaranteed by the First and Four-

teenth Amendment. But the Court made it clear that the

® Close to 99 percent of the 1717 major collective bargaining

agreements in a Labor Department survey were found to have pro-

visions for grievance procedures. U.S. Bureau of Labor Statistics,

Department of Labor, Bulletin No. 1425-1, Major Collective Bar-

gaining Agreements: Grievance Procedure I (1964).

ee ee

21

same finality considerations govern where decisions up-

holding the power of the state to proceed threaten po-

tential erosion of “national labor policy” by rejecting sub-

stantial federal conflict and preemption objections (id.,

420 U.S. at 483). The Court said that in Construction

Laborers v. Curry, 371 U.S. 542 (1963), “the power

of the state court to proceed in the face of the preemption

claims was deemed an issue separable from the merits

and ripe for review in this court,” albeit the assertion of

state power was embodied only in a temporary injunc-

tion. 420 U.S. at 483.

{n the instant case, likewise, the conflict and preemp-

tion questions decided by the highest court of Alabama

and are not subject to further review in the state

courts, pp. 7-8, supra. Here, too, immediate review of

these federal questions by this Court would terminate the

litigation, whereas “a failure to decide the question now

will leave” participants in labor disputes generally, and

parties to grievance proceedings particularly, “operating

in the shadow of the civil sanctions of a rule of law * * *

the constitutionality of which [under the Supremacy

Clause] is in serious doubt.” Coz, supra, at 486. Here,

too, “further proceedings cannot remove or otherwise

affect the federal threshold issue.” New York v. Cathedral

Academy, 46 U.S.L.W. 4023, 4024, n. 4 (December 6,

1977). Here, again, as in Cox, supra, and in Shaffer

V. Hettner, 45 U.S.L.W. 4849, 4852, n. 12 (June 24,

1977), petitioners “would have the choice of suffering

a default judgment or * * * defending on the merits.”

The case for immediate review of the federal ques-

tions decided below is at least as compelling as in Cox

and Curry (420 U.S. at 479), not only to remove the

continuing threat to national labor policy, but also to

avoid the unnecessary burdening of “judicial systems

already troubled by delays due to congested dockets” (id.

at 479, quoting Mills v. Alabama, 384 U.S. 214 at 217-

218 (1966) ).

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

MoZART G. RATNER

1900 M Street, N.W.

Washington, D. C. 20036

Counsel for Petitioners

Of Counsel:

OTTO E. SIMON

Van Antwerp Building

Mobile, Alabama 36602

Appendices

la

APPENDIX A

February 2, 1977

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

OCTOBER TERM 1976-77

Mise. No. 540

EX PARTE: W. D. DUNNING, ET AL., PETITIONERS

(IN RE: Earl Boyes v. W. D. Dunning, et al.)

ORDER

W. D. Dunning, et al., the defendants in the case of

Earl Boyes v. W. D. Dunning, et al., Civil Action No.

51576, in the Circuit Court of Mobile County, Alabama,

having filed in this Court on January 12, 1977, their

petition for permission to appeal from an interlocutory

order entered by the Honorable Joseph M. Hocklander,

Circuit Judge of the Mobile County Circuit Court on De-

cember 29, 1976, >

IT IS CONSIDERED AND ORDERED that the peti-

tion be granted; and permission is hereby granted to

W. D. Dunning, et al., to appeal to this Court, pursuant

to the provisions of Rule 5, Alabama Rules of Appellate

Procedure, from the interlocutory order entered by the

Honorable Joseph M. Hocklander, Circuit Judge of the

Circuit Court of Mobile County, Alabama, in the case of

Earl Boyes v. W. D. Dunning, et al., Civil Action No.

51576.

I, J. O. Sentell, Clerk of the Supreme Court of Alabama,

do hereby certify that the foregoing is a full, true and

2a

correct copy of the instrument(s) herewith set out as

same appears of record in said Court.

Witness my hand this 3 day of Feb. 1977.

/s/ J. O. Sentell

Clerk

Supreme Court of Alabama

3a

APPENDIX B

[Sep. 30, 1977]

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

SPECIAL TERM, 1977

S.C. 2417

W. D. DUNNING, et al.

V.

EARL BOYES

Appeal from Mobile Circuit Court

MADDOX, JUSTICE.

This is an interlocutory appeal involving controlling

questions of law as to which the parties substantially dis-

agree. Those questions are:

1. Are defamatory com.nunications made in the course

of, and relevant to, a federal grievance proceeding abso-

lutely privileged?

2. Is referring to a person as “a known Bigot” action-

able?

The trial court, by refusing to grant the defendants’

motion to dismiss a libel action, in effect, held that Ala-

bama should recognize only a qualified privilege to com-

munications made in the course of a labor grievance pro-

ceeding, and that whether the reference to the plaintiff as

“a known Bigot” was libelous, was a question for a jury.

We affirm.

The defendants claim that the federal preemption doc-

trine has special application to grievance proceedings

4a

conducted pursuant to collective bargaining contracts gov-

erned by federal law, “for those proceedings serve Con-

gress’ purpose of promoting industrial peace.” Pertinent

statements by either party in the presentation or resolu-

tion of a grievance, they say, are privileged, and they

claim that to subject the parties to the risk of state tort

liability for such statements “would cabin their freedom

to present their positions with reference to the grievance

in a manner they consider most effective.”

The libel action arose out of a letter, Appendix A,

written in connection with a grievance proceeding. The

letter states, among other things, that the Union, after

investigation, “finds no justifiable cause” for denial of a

step increase to one Kyser. It attributes denial of Kyser’s

step increase to “Racial Overtones,” and asserts:

“He [Kyser] had no trouble until Earl Boyes, a known

Bigot, arrived at the Station.”

The defendant filed a motion to dismiss, as follows:

‘Defendants move to dismiss the complaint for

lack of jurisdiction over the subject matter. The letter

referred to in the complaint, which is attached hereto

and incorporated herein by reference, was written

and delivered as a step in the grievance procedure of

the collective bargaining contract between the United

States Postal Service and defendant labor organiza-

tions cited therein. Said contract, its administration

and utterances in the course thereof are goverened

exclusively by federal labor law, the Postal Reorgani-

zation Act, 84 Stat. 733, 39 U.S.C. 1201, et seq. The

Supremacy Clause of Article VI of the Constitution

of the United States preempts state court jurisdiction

over alleged common law defamation in labor dis-

putes in the United States Postal Service, which is

the subject matter of the complaint herein. Letter

Carriers v. Austin, 418 U.S. 264 (1974).”

ee

5a

I

We hold that defamatory communications made in the

course of, and relevant to, a federal grievance proceeding

are not absolutely privileged. Therefore, we refuse to

follow the rule of absolute privilege suggested in General

Motors Corp. v. Mendicki, 367 F.2d 66 (10th Cir. 1966).

We follow instead what we consider is a better rule, that

of a qualified privilege, as set out in Bird v. Meadow Gold

Products, Inc., 60 Mise. 2d 212, 302 N.Y.S. 2d 701 (1969).

We believe that the rule we announce follows what the

Supreme Court of the United States has established as a

general rule—that a party to a labor dispute may recover

for defamatory statements made during the course of the

dispute if he can establish that the statement was made

maliciously, with knowledge that it was false or with reck-

less disregard for whether it was false or not. Linn v.

United Plant Guard Workers of America, 383 U.S. 53

(1966). There, Mr. Justice Clark, writing for the Court,

opined :

“Finally, it has been argued that permitting state

action here would impinge upon national labor policy

because the availability of a judicial remedy for

malicious libel would cause employers and unions to

spurn appropriate administrative sanctions for con-

temporaneous violations of the Act. We disagree.”

“* * * As was said in Garrison v. State of Louisi-

ana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d

125: ‘(T]he use of the known lie as a tool is at once

at odds with the premises of aemocratic government

and with the orderly manner in which economic, so-

cial, or political change is to be effected.’ We believe

that under the rules laid down here it can be appro-

priately redressed without curtailment of state libel

6a

remedies beyond the actual needs of national labor

policy... .”

As stated by the Supreme Court in Linn, the most

repulsive speech enjoys immunity provided it falls short

of a deliberate or reckless untruth.

“Malicius libel enjoys no constitutional protection in

any context,” the Court said in Linn. “After all, the

labor movement has grown up and must assume ordinary

responsibility,” the Court added.

Il

The defendants say that even assuming that the com-

munication is not privileged, it is not actionable, because

the defamatory characterization “known Bigot” is not a

statement of fact, but a “pejorative opinion: ‘rhetorical

hyperbole,’ like calling one’s adversary a ‘scab,’ or a

‘blackmailer,’ or a ‘Fascist,’ or ‘unfair.’”’ The defendants

contend:

“In Farmer v. Carpenters, Local 25, 45 L.W.

4263, 4267 (March 7, 1977), the Supreme Court

again explained in the strongest terms why such

defamation must be immune to state libel laws:

“<The potential for undue interference with

federal regulation would be intolerable if state

tort recoveries could be based on the type of

robust language and clash of strong personalities

that may be commonplace in various labor con-

texts.’

To dub one who is believed guilty of racial discrimi-

nation a ‘racial Bigot’ is not particularly ‘robust’

language and is certainly not confined to labor circles.

Indeed, it is common parlance, typical of media com-

mentators. To entertain this complaint is indeed

‘intolerable.’ ”

Ta

We disagiee with the defendants’ argument. Like the

Supreme Court of the United States, we are aware that

“robust language” is sometimes used in labor disputes, but

it is for a jury to say whether there was an abuse of the

qualified privilege under all the facts and circumstances

of the case. It would be inappropriate to determine this

question on a motion to dismiss unless it were shown that

the plaintiff could not recover under any set of circum-

stances, or that no issue of a material fact remained in

the case, if the motion to dismiss were treated as a motion

for summary judgment. Whether the qualified privilege

was abused by the defendants is a jury question.

The plaintiff may be able to prove that the characteri-

zation of him was a deliberate or reckless untruth. The

jury could infer that the characterization meant that

Boyes discriminated against Kyser because of Kyser’s

race. If the charge were true, it could have meant that

Boyes was guilty of violating Federal laws and regula-

tions. See 42 U.S.C. 2000e-16 (1974), and Postal Service,

39 C.F.R. § 447.25 (1976).

AFFIRMED.

Torbert, C. J., Faulkner, Shores and Beatty, JJ., con-

cur

OO

8a

[SEAL]

AZALEA CITY BRANCH NUMBER 469

NATIONAL ASSOCIATION OF LETTER CARRIERS

(Affiliated with AFL-CIO)

P.O. Box 1962

Mobile, Alabama 36601

[UNION BUG NO. 9]

May 9, 1976

Certified Mail

803015 *

Postmaster

250 St Joseph St.

Mobile, Al 36601

This is an appeal to step 2a of a grievance decision by

Assistant Superintendent Cottage Hill Station (204-B)

Earl Boyes, on May 7, 1976, concerning Johnnie Kyser,

full time regular letter carrier PF: 5 of the Mobile, Al

Postal Service.

The time limit for processing at step la wads extended

by Mutual Consent.

Management has violated the National Working Agree-

ment, including but not limited to, Article 3 which incor-

porates Public Law 91-375, Article 2 and Article 9 Sec-

tion 5. The grievance was filed timely by Mr. Kyser.

Management’s response was “That it was untimely and

there had been no official notification.”

On April 22, 1976, George Naman, Superintendent Cot-

tage Hill Station, Told Mr. Kyser. “That he had denyed

his step increase; due to substandard performance.”

The Postal Reorganization Act states that “employes will

reach the maximum pay step for their respective labor

9a

grades after not more than 8 years satisfactory service

in such grades.”

After investigation the Union finds no justifiable cause

for denying the step. Mr. Kyser has been at the Post

Office for 4 years. There are two counselings and four

complaints in his file.

This record does not indicate a <2rious unsatisfactory

service in the performance of his duties. In fact! It

displayes a good job. However, it does smack of Racial

Overtones. He is the only denyed a step increase in the

station. He is also Black. He had no trouble until Earl

Boyes, a known Bigot, arrived at the Station.

The Union requests that Mr. Kyser be granted the step

increase. The Union also requests that 8% interest be

Paid.

/8/ Johnnie Kyser

JOHNNIE KYSER

Aggrieved

I, J. O. Sentell, Clerk of the Supreme Court

of Alabama, do hereby certify that the fore-

going is a full, true and correct copy of the

instrument(s) herewith set out as same

appears of record in said Court.

Witness by hand this 30 day of Sep., 1977.

/s/ J. O. Sentell

W. D. Dunning

Shop Steward

NALC

/s/ W.D. Dunning

l0a

APPENDIX C

OFFICE OF

CLERK OF THE SUPREME COURT

STATE OF ALABAMA

MONTGOMERY

Re: SC 2417

W. D. DUNNING, ET AL.

Appellant

Vs.

EARL BOYES

Appellee

You are hereby notified that the following indicated

action was taken in the above cause by the Supreme Court

today:

Application for rehearing overruled. No opinion

written on rehearing.

/s/ J. O. Sentell

Clerk

Supreme Court of Alabama

November 18, 1977

lla

APPENDIX D

AGREEMENT

between

United States Postal Service

and

American Postal Workers Union, AFL-CIO

National Association of Letter Carriers, AFL-CIO

National Post Office Mail Handlers, Watchmen,

Messengers and Group Leaders

Division of the Laborers’ International Union

of North America, AFL-CIO

National Rural Letter Carriers’ Association

[SEALS]

July 21, 1975 — July 20, 1978

[Union Label]

ARTICLE XV

GRIEVANCE-ARBITRATION PROCEDURE

Section 1. Definition. A grievance is defined as a dis-

pute, difference, disagreement or complaint between the

parties related to wages, hours, and conditions of employ-

ment. A grievance shall include, but is not limited to, the

complaint of an employee or of the Unions which involves

the interpretation, application of, or compliance with the

provisions of this Agreement or any local Memorandum

of Understanding not in conflict with this Agreement.

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Section 2. Procedure

Step 1: The employee must discuss a grievance with his

immediate supervisor within fourteen (14) days of when

the employee or Union has learned or may reasonably

have been expected to have learned of its cause. The em-

ployee may be accompanied by his steward or a Union

representative, if he so desires. The supervisor shall ren-

der a decison, stating his reasons, within five (5) days.

The Union shall be entitled to appeal an adverse decision

to Step 2 of the grievance procedure within ten (10)

days after receipt of the Employer’s decision. Such ap-

peal shall be in writing to the head of the installation or

his designee.

The Union may also initiate a grievance at Step 1 in

accordance with the above, and may initiate a class

grievance at Step 1 when the grievance concerns the

complaint of more than one employee in the office.

Step 2A: The employee shall be represented by a stew-

ard or a Union representative. The installation head or

his designee will meet with the steward or Union rep-

resentative as expeditiously as possible, but no later than

seven (7) days after receipt of the appeal. A decision

by the Employer shall be rendered within ten (10) days

after it has been appealed to Step 2A. Such decision shall

be in writing and the Union shall be entitled to an oral

explanation of the reasons therefor. The Union shall be

entitled to appeal an adverse decision to Step 3 of the

grievance procedure within ten (10) days after receipt

of the Employer’s decision, except for the subjects speci-

fied in Step 2B.

Step 2B: In the absence of settlement through Step

2A, grievance involving the subject of disciplinary action

taken against an employee or the discharge of an em-

ployee may not be submitted to Step 3 or 4, but may be

appealed in writing to the Regional Director for Em-

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ployee and Labor Relations within ten (10) days after

receipt of the Employer’s 2A decision. The Regional

Director for Employee and Labor Relations shall pro-

vide a hearing at a management level higher than the

installation level and at a location convenient to the

parties. The management representative at Step 2B shall

be a person who has had no direct connection with the

case and such person shall be at a higher level than the

Employer’s Step 2A representative. The employee may

be represented by an area or regional Union representa-

tive, and the Employer’s decision shall be rendered within

seven (7) days after the grievance has been appealed

to this Step. Such decision shall be in writing stating the

reasons therefor. If there is no settlement at this Step,

the Union shall be entitled to refer the grievance to direct

arbitration within twenty-one (21) days, and in accord-

ance with the arbitration procedure.

Step 3: Appeals from decisions rendered at Step 2A

shall be made in writing to the Regional Director for

Employment and Labor Relations.

The employee shall be represented before the regional

office by an area or regional Union representative. A

decision by the Employer regarding the grievance shall

be rendered within fifteen (15) days after it has been

appealed to Step 3. Such decision shall be in writing

stating the reasons therefor. The Union shall be entitled

to appeal an adverse decision to Step 4 (national level)

of the grievance procedure within fifteen (15) days after

receipt of the Employer’s decision.

Step 4: The parties shail meet at the national level

within fifteen (15) days of such appeal in an attempt

to resolve the grievance. Following this meeting, a de-

cision by the Employer will be rendered within fifteen

(15) days. Such decision shall be in writing stating the

reasons therefor. If the parties are not able to resolve

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the grievance, the Union shall be entitled to refer the

grievance to arbitration within forty-five (45) days in

accordance with the arbitration procedure.

Either the Union of the Employer is entitled to bypass

the procedures provided in Steps 3 or 4, or both.

Failure by the Employer to render a decision in any of

the Steps of this procedure within the time herein pro-

vided for (including mutually agreed-to extension per-

iods) shall be deemed to move the grievance to the next

Step of the grievance procedure.

The failure of the aggrieved party or his representative

to present the grievance within the prescribed time limits

of the Steps of this procedure, including arbitration, shall

be considered as a waiver of the grievance.

It is agreed that in the event of a dispute between the

Union and the Employer as to the interpretation of this

Agreement, such dispute may be initiated as a grievance

at the national level without going through the preceding

Steps.

Section 3. Arbitration. A request for arbitration must

be submitted within the time limit for appeal as specified

for the appropriate Step. The national President of the

Union involved must give written authorization of ap-

proval to the Employer at the national level before the

request for arbitration is submitted.

Grievances referred to arbitration will be placed on a

pending arbitration list. Except for discharge cases, the

Union will have sixty (60) days from the date of such

referral to certify the case to be scheduled for arbitration

at the earliest possible date. Cases which are not certified

for arbitration within the sixty (60) days period shall

be considered waived and removed from the pending

arbitration list.

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Discharge cases referred to arbitration shall be placed

on a separate pending arbitration list. The Union will

have fifteen (15) days from the date of such referral

to certify the case to be scheduled for arbitration at the

earliest possible date. Cases which are not certified for

arbitration within the fifteen (15) day period shall be

considered waived and removed from the pending ar-

bitration list.

A panel of six (6) arbitrators will be established by

mutual agreement to handle grievances appealed from

Steps 2, 3 or 4. Absent such agreement, the method

of selection and procedure will be as described below.

The panel of six (6) arbitrators will be selected by the

alternative striking of names by the parties from a

geographically balanced list of arbitrators provided by

the Federal Mediation and Conciliation Service.

Any vacancies in the panel will be filled by the alterna-

tive striking of names from a list of five (5) arbitrators

supplied by the FMCS. This method will be used if

members of the panel are unavailable for any reason.

By mutual agreement, the parties may increase the size

of the panel, for such time as is necessary, to assure the

expeditious processing of grievances. The additional ar-

bitrators will be selected in the same manner as pro-

vided above.

The arbitrator’s decision will be final and binding. The

arbitrator shall render his award within thirty (30) days

of the close of the hearing on cases which do not involve

interpretation of the Agreement or are not of a technical!

or policy-making nature. On all other cases, the award

shall be rendered within thirty (30) days, if possible.

All decisions of the arbitrator shall be limited to the

terms and provisions of this Agreement, and in no event,

may the terms and provisions of this Agreement be al-

tered, amended or modified by the arbitrator. All costs,

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fees and expenses charged by the arbitrator will be

shared equally by the parties.

Arbitration hearings shall be held during working hours.

Employee witnesses shall be on Employer time when ap-

pearing at the hearing provided the time spent as a wit-

ness is part of the employee’s regular working hours.

In any arbitration proceeding in which a Union feels that

its interests may be affected, it shall be entitled to in-

tervene and participate in such arbitration proceeding,

but it shall be required to share the cost of such arbitra-

tion with any or all other Union parties to such pro-

ceeding. In any case in which more than one Union

participates, the Unions will share one-half (14) and the

Employer will pay one-half (14) of the costs of such

arbitration. Any dispute as to arbitrability may be sub-

mitted to the arbitrater and be determined by him. The

arbitrator’s determination shall be final and binding.

Section 4. Expedited Arbitration. The Parties agree to

continue the utilization of an expedited arbitration sys-

tem for disciplinary cases which do not involve inter-

pretation of the Agreement and which are not of a

technical or policy-making nature. This system may be

utilized by agreement of the Union involved through its

national President or designee, and the Senior Assistant

Postmaster General, Employee and Labor Relations

Group, or his designee. In any such case, the Union and

the Employer shall immediately notify the designated

arbitrator. The designated arbitrator is that member

of the Expedited Arbitration Panel who, pursuant to a

rotation system, is scheduled for the next arbitration

hearing. Immediately upon such notification the desig-

nated arbitrator shall arrange a place and date for the

hearing promptly but within a period of not more than

ten (10) working days. If the designated arbitrator is

not available to conduct a hearing within the ten (10)

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working days the next panel member in rotation shall

be notified until an available arbitrator is obtained.

The hearing shall be conducted in accordance with the

following:

(a) the hearing shall be informal;

(b) no briefs shall be filed or transcripts made;

(c) there shall be no formal rules of evidence;

(d) the hearing shall normally be completed within

one day;

(e) if the arbitrator or the parties conclude at the

hearing that the issues involved are of such com-

plexity or significance as to warrant reference to

the Regular Arbitration Panel, the case shall be

referred to that panel; and

(f) the arbitrator may issue a bench decision as the

hearing but in any event he shall render his de-

cision within forty-eight (48) hours after conclu-

sion of the hearing. His decision shall be based

on the record before him and many include a brief

written explanation of the basis for his conclusion.

These decisions will not be cited as a precedent.

The arbitrator’s decision shall be final and binding.

An arbitrator who issues a bench decision shall

furnish a written copy of his award to the parties

within forty-eight (48) hours of the close of the

hearing.

The Expedited Arbitration Panel shall be developed by

the national parties, on a national or area basis, with the

aid of the American Arbitration Association, the Fed-

eral Mediation and Conciliation Service, Deans of Law

Schools and the National Academy of Arbitrators. The

parties shall appoint a Joint Committee with equal rep-

resentation which shall have the responsibility of de-

veloping programs for appropriate orientation of the

members of the arbitration panel.