# Petition — Dunning v. Boyes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0454%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 917 ## Text 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. | 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 - 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 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: “