Petition for Writ of Certiorari — United Auto Workers, Local 422 v. Tosti
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87 546 TE B .
No. - + _|\__ sep go wer
In the —
Supreme Court of the United States.
OCTOBER TERM, 1987.
UNITED AUTO WORKERS, LOCAL 422,
PETITIONER,
Vv.
AUGUSTINO TOSTI,
RESPONDENT.
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH OF MASSACHUSETTS.
Petition for Writ of Certiorari.
Gary R. GREENBERG, *
MICHAEL R. Brown,
Louis J. SCERRA, JR.,
ELLIOT K. GORDON,
GOLDSTEIN & MANELLO,
265 Franklin Street,
Boston, Massachusetts 02110.
(617) 439-8900
*Counsel of Record
BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS
9
Questions Presented for Review.
I. Whether the plaintiff’s cause of action is pre-empted by
the National Labor Relations Act in view of the risk it poses
of interference with the jurisdiction of the National Labor
Relations Board.
Ii. Whether, upon an independent assessment of the evidence
of “actual malice” introduced by the plaintiff, the plaintiff's
evidence was insufficient to establish with clear and convincing
clarity that the Union official knew that his statement was
false, or that the Union official acted with reckless disregard
of whether the statement was false or not, and, whether an
inference of “actual malice” can be held to arise from the
Union official’s desire to enforce the collective bargaining
agreement.
III. Whether an award of damages in the amount of
$275,000.00 (with interest in the amount of $428,187.17) in
this defamation action is clearly excessive and unsupported by
competent evidence in the record where (1) no evidence of
the value of the plaintiff's allegedly lost employment benefits
was presented by the plaintiff; (2) the Supreme Judicial Court
characterized the plaintiff’s evidence of harm to reputation and
mental suffering as “sparse indeed”; (3) the jury returned a
verdict of only $5,000.00 against the author of the alleged
libel for which the Union was only liable vicariously; and (4)
the jury clearly was motivated by animus toward unions be-
Cause it was prepared to hold the Union liable regardless of
whether any Union official had committed any wrong against
the plaintiff.
ili
Parties to the Proceeding.
Petitioner, which was the defendant-appellant in the Su-
preme Judicial Court, is United Auto Workers, Local 422 (“the
Union”). Although not parties to the 1986 appeal to the Su-
preme Judicial Court, Henry Ayik and Baheege Ayik were
defendants in the action who were sued individually and in
their capacities as officials of the Union.
Respondent, who was the plaintiff-appellee in the Supreme
Judicial Court, is Augustino Tosti.
Table of Contents.
Questions presented for review
Parties to the proceeding
Table of authorities cited
Opinions below
Jurisdictional statement
Statutory provision
Statement of the case
Argument
I. The plaintiff's state law defamation claim is pre-
empted by the National Labor Relations Act because
state court jurisdiction over that claim poses an
obvious and substantial risk of interference with
the jurisdiction of the National Labor Relations
Board
A. The Supreme Judicial Court committed rever-
sible error when it ruled that this action was not
pre-empted solely because it involved a defama-
tion claim
B. Even if not pre-empted in its entirety, the plain-
tiff’s claim should be partially pre-empted in
order to avoid an obvious and substantial risk of
interference with the jurisdiction of the NLRB
II. The plaintiff's evidence was insufficient as a mat-
ter of law to establish with clear and convincing
clarity that the union official knew that the state-
ment concerning the plaintiff was false, or that the
union official acted with reckless disregard of
whether his statement was false or not, and con-
trary to the Supreme Judicial Court’s holding, the
motivation to enforce a collective bargaining agree-
ment cannot give rise to an inference of “actual
malice”
III. A damage award of $275,000.00 (with interest
in the amount of $428,187.17) in this defamation
action is Clearly excessive and unsupported by
competent evidence in the record where (1) no
10
10
16
18
vi TABLE OF AUTHORITIES CITED.
evidence of the value of the plaintiff's allegedly
lost employment benefits was presented by the
plaintiff; (2) the Supreme Judicial Court charac-
terized the plaintiff's evidence of harm to reputa-
tion and mental suffering as “sparse indeed”; (3)
the jury returned a verdict of only $5,000.00 against
the author of the alleged libel for which the union
was only liable vicariously; and (4) the jury was
clearly motivated by animus toward unions be-
cause it was prepared to hold the union liable re-
gardless of whether any union official had com-
mitted any wrong against the plaintiff 23
Conclusion 28
Appendix follows page 28
Table of Authorities Cited.
CASES.
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967)
(per curiam) 20
Belknap, Inc. v. Hale, 463 U.S. 491 (1983) 1]
Bose Corp. v. Consumers Union of United States, Inc.,
692 F.2d 189 (Ist Cir. 1982), aff d, 466 U.S. 485 (1984)
19, 20, 21
Bruno & Stillman, Inc. v. Globe Newspaper Co., 633
F.2d 583 (1st Cir. 1980) 20
Craig v. Proctor, 229 Mass. 339, 118 N.E. 647 (1918) 26
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) 20
Farmer v. United Brotherhood of Carpenters and Join-
ers, Local 25, 430 U.S. 290 (1977) 12n, 16, 17, 18,
22n, 26
Garrison v. Louisiana, 379 U.S. 64 (1964) 20
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 19, 20, 22
TABLE OF AUTHORITIES CITED. Vil
Herbert v. Lando, 441 U.S. 153 (1979) 20
In re Roche, 448 U.S. 1312 (1980) (Brennan, J., in
chambers) 3n
International Longshoremen’s Association v. Davis,
476 U.S. 380 (1986) 15n
Lewis v. Vallis, 356 Mass. 662, 255 N.E.2d 337 (1970) 26
Linn v. United Plant Guard Workers, Local 114, 383
U.S. 53 (1966) passim
Local 926, International Union of Operating Engineers
v. Jones, 460 U.S. 669 (1983) passim
Lumber Production Industrial Workers, Local #1054
v. West Coast Industrial Relations Association, Inc.,
775 F.2d 1042 (9th Cir. 1985) 14n
Muchnick v. Post Publishing Co., 332 Mass. 304, 125
N.E.2d 137 (1955) 26
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
lin, 19, 20, 22
NLRB v. International Brotherhood of Electrical Work-
ers, Local 340, U.S. , 107S.Ct. 2002 (1987) 15n
Old Dominion Branch No. 496, National Association of
Letter Carriers v. Austin, 418 U.S. 264 (1974) 12n,
19, 22, 23, 24
San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959) 10, 11, 15n, 16, 17
Sears, Roebuck & Co. v. San Diego County District
Council of Carpenters, 436 U.S. 180 (1978) 13, 16
Silver Bay Local Union No. 962, International Brother-
hood of Pulp, Sulphite and Paper Workers, 215
NLRB 414 (1974), enforced, 510 F.2d 1364 (9th Cir.
1975) 15
St. Amant v. Thompson, 390 U.S. 727 (1968) 20
Stone v. Essex County Newspapers, Inc. 367 Mass.
849, 330 N.E.2d 161 (1975) 24, 26
Time, Inc. v. Pape, 401 U.S. 279 (1971) 20
Tosti v. Ayik, 400 Mass. 224, 508 N.E.2d 1368 (1987) passim
Vill TABLE OF AUTHORITIES CITED.
Tosti v. Ayik, 394 Mass. 482,476 N.E.2d 928 (1985) passim
Tosti v. Ayik, 386 Mass. 721, 437 N.E.2d 1062 (1982) passim
FEDERAL STATUTES.
28 U.S.C. § 1257(3) 2
28 U.S.C. § 2101(f) 3n
29 U.S.C. § 158(b)(1) 12n
29 U.S.C. § 158(b)(1)(A) 12, 13, i4
29 U.S.C. § 158(b)(1)(B) pe Ae MB
MISCELLANEOUS.
NLRB Casehandling Manual §§ 10550 et seq. 15
oo
No. - .
In the
Supreme Court of the United States.
OCTOBER TERM, 1987.
UNITED AUTO WORKERS, LOCAL 422,
PETITIONER,
Vv.
AUGUSTINO TOSTI,
RESPONDENT.
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH OF MASSACHUSETTS.
Petition for Writ of Certiorari.
To the Honorable, the Chief Justice of the United States,
and the Associate Justices of the Supreme Court of the United
States:
The petitioner, United Auto Workers, Local 422, appellant
in the court below, respectfully prays that a writ of certiorari
issue to review the final judgment of the Supreme Judicial
Court for the Commonwealth of Massachusetts in the above
case.
Opinions Below.
The opinions of the Supreme Judicial Court are published
as Tosti v. Ayik, 400 Mass. 224, 508 N.E.2d 1368 (1987)
(“Tosti III’) (reproduced at page la in Appendix A); as Tosti
v. Ayik, 394 Mass. 482, 476 N.E.2d 928 (1985) (“Tosti 1’)
2
(reproduced at page 7a of Appendix B); and Tosti v. Ayik,
386 Mass. 721, 437 N.E.2d 1062 (1982) (“Tosti 1”) (repro-
duced at page 27a of Appendix C). No opinions were delivered
in the Superior Court action.
Jurisdictional Statement.
The final judgment of the Supreme Judicial Court was en-
tered on June 10, 1987. See Appendix D, p. 36a. The Union's
petition for rehearing was denied on July 2, 1987. See Appen-
dix E, p. 37a. The jurisdiction of the Supreme Court to review
the final judgment of the Supreme Judicial Court is invoked
pursuant to 28 U.S.C. § 1257(3).
Statutory Provision.
Title 29, United States Code, Section 158(b)(1)(B):
It shall be an unfair labor practice for a labor
organization or its agents — (1) to restrain or coerce
.. .(B) an employer in the selection of his represen-
tatives for the purposes of collective bargaining or
the adjustment of grievances... .
Statement of the Case.
This case presents stark confirmation of the prescience of
this Court’s statement that “the availability of libel actions
may pose a threat to the stability of labor unions.” Linn v.
United Plant Guard Workers, Local 114, 383 U.S. 53, 64
(1966). In fact, this single defamation action portends the
imminent demise of the petitioner, Local 422 of the United
Auto Workers, a local union that has been in existence since
about 1947. The Supreme Judicial Court affirmed a libel award
in the amount of $703,187.17 ($275,000.00 plus $428,187.17
in interest) against the Union, and an execution issued against
the Union in the amount of $819,226.95 on or about July 20,
1987.
aeons esse
3
Recognizing the substantiality of the issues presented in this
case, the Supreme Judicial Court, per Chief Justice Hennessey,
ruled on August 7, 1987 that the execution issued against the
Union should be superseded and that enforcement of the judg-
ment against the Union should be stayed pending the filing
and disposition of the Union’s Petition to this Court for a Writ
of Certiorari. See Appendix F, pp. 38a-39a.' The Supreme
Judicial Court apparently also took cognizance of the Union’s
claim that enforcement of the judgment prior to the disposition
of the Union’s Petition for a Writ of Certiorari might result in
irreparable harm to the Union; namely, that the magnitude of
the judgment would require the Union to file a petition in
bankruptcy. The effect of the Supreme Judicial Court’s allow-
ance of the Union’s motion for a stay was to permit the Union
to remain a viable entity, at least until this Court decides
whether to grant its Writ of Certiorari to review the Supreme
Judicial Court’s decision.
This action was commenced by the plaintiff Augustino Tosti
(“Tosti”), a former supervisor of the General Motors Corpora-
tion (“GM”) plant in Framingham, Massachusetts, on August
6, 1973.? Tosti sought to recover from Henry Ayik, his brother
Baheege Ayik, and United Auto Workers, Local 422 for libel
and for intentional interference with Tosti’s employment re-
lationship with GM. Tosti alleged in his Declaration that the
publication of a certain article written by Henry in the Union
newspaper caused GM to terminate him from his supervisory
position, resulted in the loss of job-related benefits, and caused
harm to Tosti’s reputation and mental suffering.
The article was written by Henry Ayik with the conceded
purpose of attempting to enforce Paragraph 215 of the Union’s
‘The standard for issuing a stay pursuant to 28 U.S.C. § 2101(f) is that a
stay will generally issue where (1) there is a “reasonable probability” that four
Justices of this Court will find the issue sufficiently substantial to grant cer-
tiorari; (2) there is a “fair prospect” that a majority of this Court will conclude
that the decision was erroneous; (3) irreparable harm is likely to result to the
applicant if a stay is not granted; and (4) the “balance of equities” to the parties
and the public favors the issuance of a stay. See In re Roche, 448 U.S. 1312,
1314 (1980) (Brennan, J., in chambers).
>The statement of the facts that follows is derived from testimony given at
the second trial of this case in March of 1983.
4
collective bargaining agreement with GM.’ Paragraph 215 of
the collective bargaining agreement provided that GM super-
visors shall not perform work on hourly-rated jobs except in
emergencies or in the instruction or training of employees.
The article concerned Henry’s observation of the plaintiff on
the night of June 7, 1971, punching repair tickets on vehicles
in direct violation of Paragraph 215.* Supervisory employees
were not issued repair punches and were not authorized to
punch repair tickets to indicate that repairs had been completed.
Nonetheless, Tosti admitted that he used the repair punches
in an unauthorized manner on approximately fifteen to twenty
vehicles in 1971. Henry testified that he had seen Tosti on
several occasions in April and May of 1971 punching repair
tickets on vehicles without ever performing any repairs. Tosti
claimed that he did not work the same shift as Henry in April
or May of 1971.
On the evening of June 7, 1971, Henry observed Tosti
punching repair tickets on six vehicles in a row. Henry wrote
down the job numbers of the vehicles and advised Tosti that
he was going to file a grievance. Although Henry acknow-
ledged that he was not present for approximately fifteen min-
utes prior to his viewing of the incident, he testified that, based
upon his experience, the repairs could not have been performed
in so little an amount of time. Numerous GM employees cor-
roborated Henry’s testimony by testifying that they too had
seen Tosti punching repair tickets without ever seeing Tosti
‘The article, in its entirety, stated as foliows: “On Monday, June 7th [1971,]
at 11:34 p.m. Gus Tosti foreman in the electrical hole, was working on job
#603677, a green 4 door Pontiac, T37. Pete Hanningson (rank unknown) was
standing guard next to him. This is how Gus repairs cars. He has an inspection
punch, #K2 and if he reverses the punch it’s KS. He was punching all the
items on the ticket. This sort of thing goes on constantly. We have men who
work in the Inspection Department checking these cars for defects. After writing
the defects down the foremen fix them by punching the ticket out. Now, I
understand why so many cars are shipped from the electrical hole. GM's mark
of excellence means nothing to them. If you’re ever picked as a driver for the
electrical hole first, blow the horn, next try the brakes and good luck!!”
‘The plaintiff conceded that he punched repair tickets in violation of the
Union’s contract with GM. He claimed at trial, however, that he never punched
a repair ticket on a vehicle that he did not repair.
5
performing repairs. The GM plant personnel director testified
that on June 16, 1971, Tosti admitted that he had used the
repair punch to ship vehicles that were not actually repaired.
An independent investigation by GM revealed that nearly one
hundred unrepaired vehicles had been punched with the K-2
punch between June 1, 1971 and June 15, 1971, including
four vehicles which had been shipped with serious safety vio-
lations. Tosti was then informed on June 18, 1971 by GM that
he was to be discharged for punching repair tickets on unre-
paired vehicles.°
A jury trial commenced on February 11, 1980. On February
15, 1980, the jury returned verdicts against Henry, Baheege,
and the Union for libel and intentional interference with Tosti’s
contractual relationship with GM in the amount of $420,000.00.
On the same day, judgments entered on the jury’s verdict in
the amount of $420.000.00, together with interest in the
amount of $211.428.00.
The Ayiks and the Union appealed the decision to the Su-
preme Judicial Court, which reversed the judgment and ordered
a new trial for all defendants. Tosti J, 386 Mass. 721. The
court held that Henry’s article was published in the context of
a labor dispute because the dispute concerned a controversy
Over supervisory personnel doing bargaining unit work in vio-
lation of the Union’s collective bargaining agreement with
GM. Tosti I, 386 Mass. at 723-726. Since the trial court did
not instruct the jury in accordance with this Court’s decision
in Linn, 383 U.S. 53, that the plaintiff could not recover from
the defendants unless he showed that Henry’s statement was
published with “actual malice,” the Supreme Judicial Court
reversed the judgment in Tosti’s favor on the defamation
counts. Tosti 1, 386 Mass. at 725. The Supreme Judicial Court
also reversed the judgments in Tosti’s favor on his claims for
intentional interference with his employment relationship. The
Court held that the National Labor Relations Act (“NLRA” or
* Although oral testimony concerning Tosti’s discharge by GM was allowed
into evidence, the Supreme Judicial Court affirmed the exclusion of four
memoranda from GM's personnel files that reflected GM’s independent inves-
tigation into Tosti’s use of the repair punch.
iia ais ie
6
“the Act’) did not pre-empt Tosti’s claim for tortious interfer-
ence, but that Tosti could only recover on that claim if he
proved that the Union’s publication was made with “actual
malice” and that it caused GM to discharge him. /d., 386
Mass. at 726-729. The Supreme Judicial Court, therefore,
ordered that all of Tosti’s claims against the Union and against
the Ayiks be tried again.
A second jury trial commenced on March 14, 1983. At the
close of the plaintiff's evidence, the Union and the Ayiks
moved for directed verdicts, claiming, inter alia, that “(t]he
evidence is insufficient to warrant a finding, on clear and
convincing evidence, that the Union published the article with
malice, that is, knowing it to be false or with reckless disregard
as to its truth or falsity.” The trial judge denied the motions
for directed verdicts.
On March 23, 1983, the jury returned its verdict in favor
of all the defendants on Tosti’s claim of tortious interference
with his employment relationship. The jury also returned a
verdict for Baheege Ayik on the claim of libel. However, the
jury returned a verdict against Henry, the author of the allegedly
defamatory article, for libelling Tosti, and assessed damages
in the amount of $5,000.00. Finally, the jury returned a verdict
against the Union that it was vicariously liable to Tosti for
Henry Ayik’s libel, and assessed damages in the amount of
$495 ,000.00.° Judgments were entered by the court on the
jury’s verdicts on March 23, 1983.
Henry and the Union filed motions for judgment not-
withstanding the verdict on March 23, 1983, contending, inter
alia, that “[t]he evidence is insufficient to warrant a finding,
on clear and convincing evidence, that the Union published
the article with malice, that is, knowing it to be false or with
reckless disregard as to its truth or falsity.” The Union also
moved on April 1, 1983 for a new trial, contending, inter alia,
that the verdict was contrary to the evidence, which “fails to
*In the course of its deliberations, the jury specifically inquired of the trial
judge whether “the union [can} be held liable whether or not either defendant
be liable of any charge.”
i
7
establish . . . [b]y clear and convincing evidence, that the
defendant, or agent or officer of the defendant published the
article with actual malice, that is with knowledge of falsity or
with reckless disregard of truth or falsity”; and that the “verdict
of the jury in the amount of $495,000.00 against the weight
of the evidence is excessive, and appears to have been influ-
enced by passion or prejudice.” The trial judge denied the
motions for judgment notwithstanding the verdict and the mo-
tions for a new trial.
An appeal to the Supreme Judicial Court ensued. The Union
and Henry Ayik argued on appeal that this Court’s decision
in Local 926, International Union of Operating Engineers v.
Jones, 460 U.S. 669 (1983), which was decided after the trial
of this action in 1983, compelled the conclusion that Tosti’s
libel claim was pre-empted by federal labor law. The Union
urged that Tosti’s libel claim was inextricably intertwined with
his claim for intentional interference with his employment
relationship with GM, and therefore, the libel claim was pre-
empted under the Supreme Court’s decision in Jones. The
Supreme Judicial Court rejected the Union’s argument that
this Court’s decision in Jones was controlling on Tosti’s claims.
Tosti Il, 394 Mass. at 485-486.
The Union and Henry Ayik also argued on appeal that, upon
an independent assessment of the record in this case, Tosti’s
proof was woefully deficient to establish “actual malice” with
clear and convincing evidence. The Union and Henry Ayik
argued that the record was devoid of any evidence that Henry
published the article with knowledge that it was false or that
he subjectively entertained serious doubts as to the truth of
the article. The Supreme Judicial Court rejected the Union’s
and Henry’s contention that Tosti had failed in his burden to
show “actual malice” with clear and convincing evidence.
Tosti Il, 394 Mass. at 491-494. The Court held that Henry’s
conceded motivation to write the article in order to enforce
the collective bargaining agreement’s prohibition on the perfor-
mance of bargaining unit work by supervisory employees
would allow the jury to find “that this motive led the defendant
to either fabricate the other charges or to make his accusations
based on suspicions and not facts.” Jd., 394 Mass. at 493.
ee
8
\
However, the Supreme Judicial Court agreed with the
Union’s contention on appeal that the damages in the amount
of $495,000.00 assessed by the jury against the Union were
“clearly excessive.” The Court took cognizance of the fact that
the jury’s question to the trial judge on whether they could
find the Union liable for defamation whether or not any Union
official committed any wrongful act against the plaintiff “im-
permissibly reflected prejudicial or punitive considerations.”
Id., 394 Mass. at 495-499.’ The Court, therefore, reversed
the judgment against the Union. It remanded the case for a
new trial solely on the issue of damages, if, after the trial court
ordered a remittitur, the plaintiff refused to accept the damages
as remitted. /d., 394 Mass. at 499. The award against Henry
Ayik was affirmed by the Supreme Judicial Court. /d., 394
Mass. at 501.°
On remand, the trial court appointed the former trial judge
who had presided at the 1983 trial to act as a special master
to make a recommendation as to the amount of the jury’s
assessment of damages that was excessive. The special master
presented a Memorandum in Support of Recommended Remit-
titur to the trial court. The Union presented a detailed oppo-
sition to the special master’s recommendation, but to no avail.
The trial court, on the basis of the special master’s recommen-
dation, remitted the damage award against the Union from
$495 ,000.00 to $275,000.00. See Appendix G, pp. 40a-45a.
A third appeal to the Supreme Judicial Court ensued. The
Union, echoing its opposition to the special master’s recom-
mended remittitur, argued on appeal that the damages as remit-
ted remained clearly excessive in view of the de minimis evi-
dence offered by the plaintiff as proof of his injury. The Union
argued that no evidence was presented as to the value of em-
ployment benefits allegedly lost by the Plaintiff and therefore
’ The fact that t the jury assessed deininaes a ty $5,000.00 against Henry
Ayik, the author of the purported libel, was also indicative of the jury’s animus
toward unions. The award of only $5,000.00 against Henry provides a stark
comparison to the jury’s $495,000.00 award against the Union, which was
liable only vicariously for Henry’s conduct.
*The statement in Tosti [1], 400 Mass. at 225 n.2, that there was no appeal
from the judgment against Henry Ayik is in error.
9
no competent evidence existed to make such an award of
special damages. The Union also argued that the only evidence
of general damages on account of injury to reputation or mental
suffering was that, on the day of his discharge, Tosti was
shaken up and lay down when he returned home, which was
very unusual for him to do. No evidence was presented that
the plaintiff received any medical or psychiatric *seatment as
a result of the Union’s publication. In Tosti I], 394 Mass. at
498, the Supreme Judicial Court expressly agreed that the
evidence the plaintiff chose to present of harm to his reputation
and mental suffering was “sparse indeed.” Yet, in Tosti /II,
400 Mass. 224, the Supreme Judicial Court appeared to have
a change of heart and affirmed the libel award against the
Union of $275,000.00, with interest in the amount of
$428,187.17.
Recognizing that the very existence of the Union was jeopar-
dized by the magnitude of the libel award and that the Union
has presented issues that are sufficiently compelling for the
Supreme Court to grant its Writ of Certiorari, the Supreme
Judicial Court allowed the Union’s motion for a stay of enforce-
ment of the judgment pending the filing and disposition of its
Petition for a Writ of Certiorari. See Appendix F, pp. 38a-39a.
With its continued operation temporarily assured by the Su-
preme Judicial Court’s stay of enforcement of the judgment,
the Union now respectfully petitions this Honorable Court to
issue its Writ of Certiorari to review the final judgment of the
Supreme Judicial Court in this matter.
10
Argument.
I. THE PLAINTIFF’S STATE LAW DEFAMATION CLAIM IS PRE-
EMPTED BY THE NATIONAL LABOR RELATIONS ACT BE-
CAUSE STATE COURT JURISDICTION OVER THAT CLAIM
Poses AN OBVIOUS AND SUBSTANTIAL RISK OF INTERFER-
ENCE WITH THE JURISDICTION OF THE NATIONAL LABOR
RELATIONS BOARD.
A. The Supreme Judicial Court Committed Reversible Error
When It Ruled That This Action Was Not Pre-empted
Solely Because It Involved A Defamation Claim.
This case presents the Court with the question of whether
a particular state cause of action “may coexist with the com-
prehensive amalgam of substantive law and regulatory arrange-
ments that Congress set up in the NLRA to govern labor-man-
agement relations affecting interstate commerce.” Local 926,
International Union of Operating Engineers v. Jones, 460
U.S. 669, 675-676 (1983). Specifically, the issue presented
is whether an action for defamation is pre-empted where, unlike
the facts of Linn v. United Plant Guard Workers, Local 114,
383 U.S. 53 (1966), essential elements of both the plaintiff's
state law claim and an arguable unfair labor practice arising
from the same conduct are “the same in a fundamental respect.”
Jones, 460 U.S. at 682.
The broad pre-emptive scope of the NLRA was spelled out
in San Diego Building Trades Council v. Garmon, 359 U.S.
236 (1959), where the Court held that when the activities
sought to be regulated by a state are clearly or may fairly be
assumed to be within the purview of Sections 7 or 8 of the
Act, “due regard for she federal enactment requires that state
jurisdiction must yield.” /d., 359 U.S. at 244. However, the
Court did not stop at this point in defining the boundaries of
the pre-emption doctrine. Rather, the Court fashioned an even
broader rule of pre-emption to ensure that state laws do not
interfere with federal regulation of labor relations:
2
I]
When an activity is arguably subject to § 7 or § 8 of the
Act, the States as well as the federal courts must defer
to the exclusive competence of the National Labor Rela-
tions Board if the danger of state interference with national
policy is to be averted.
Id., 359 U.S. at 245 (emphasis supplied).
The Court in Garmon recognized that in extremely limited
circumstances it may be appropriate to allow state courts to
exercise jurisdiction over certain conduct which otherwise
would fall within the purview of the NLRA. Thus, where the
conduct at issue is only of “peripheral concern” to the Act or
touches on interests deeply rooted in local feeling and respon-
sibility, the Court will balance the state’s interest against the
risk of interference with the exclusive jurisdiction of the Na-
tional Labor Relations Board (“NLRB” or “the Board’) to
adjudicate controversies committed to it by the Act. Belknap,
Inc. v. Hale, 463 U.S. 491, 498-499 (1983); Garmon, 359
U.S. at 243-244.
In the nearly thirty years since Garmon, the Court frequently
has had the opportunity to clarify the circumstances under
which state courts may exercise jurisdiction over conduct argu-
ably protected or arguably prohibited by the NLRA. In Linn,
383 U.S. 53, a management employee brought a claim in state
court alleging that he had been defamed by statements made
by a union during an organizing campaign. The Court was
required to decide whether, under the principles laid down in
Garmon, the NLRA pre-empted the state cause of action. In
its decision, the Court ruled that even in the context of a labor
dispute, defamatory statements made with “actual malice” are
not protected under Section 7 of the NLRA, and therefore
pre-emption is not required when that standard of proof is
satisfied.’
The court in Linn also considered the pre-emption issue
under the “arguably prohibited” branch of the Garmon doc-
* The Court adopted the definition of “actual malice” set forth in New York Times
Co. v. Sullivan, 376 U.S. 254 (1964). See discussion at 19-20, infra.
12
trine. In so doing, the Court acknowledged that the allegedly
defamatory statements by the union arguably violated Section
8(b)(1)(A) of the Act.'® Accordingly, the Court had to decide
whether the cause of action, even if premised on conduct
arguably prohibited by the NLRA, was of merely peripheral
concern to the Act. Utilizing an analysis since refined in sub-
sequent opinions, the Court looked to the issues that would
have to be decided in each forum. The Court observed that,
in evaluating a claim under Section 8(b)(1)(A), the Board
would be concerned solely with the coercive and misleading
effect of the union’s statements on employees deciding how
to vote in an election. By contrast, the sole focus of the state
court decision would be on the defamatory nature of the state-
ments and their effect on the reputation of the company official,
issues “of no relevance to the Board’s function.” Linn, 383
U.S. at 63.
In reaching its holding that pre-emption was thus not man-
dated, the Court also emphasized that the NLRB would be
unable to award damages or give any other relief to the defamed
management official. Rather, the NLRB would be limited to
redressing the injury to employees by the union’s statements
through the setting aside of an election. The Court therefore
concluded that the “Board’s lack of concern for the ‘personal’
injury caused by malicious libel, together with its inability to
provide redress to the maligned party, vitiates the ordinary
arguments for pre-emption.” /d., 383 U.S. at 64."
Seventeen years after Linn, the Court decided Local 926,
International Union of Operating Engineers v. Jones, 460
U.S. 669. In Jones, the plaintiff was discharged from his
employment as a supervisor, allegedly as a result of union
Section 8(b) provides in part that “[i]t shall be an unfair labor practice for
a labor organization or its agents — (1) to restrain or coerce (A) employees
in the exercise of the rights guaranteed in [Section 7 of the NLRA].. . or
(B) an employer in the selection of his representatives for the purposes of
collective bargaining or the adjustment of grievances... .” 29 U.S.C.
§ 158(b)(1).
'' Subsequent cases have acknowledged the unavailability of a Board remedy
for the aggrieved individual as an important element in the Court’s holding in
Linn. See Old Dominion Branch No. 496, National Association of Letter
Carriers v. Austin, 418 U.S. 264, 271 (1974); Farmer v. United Brotherhood
of Carpenters and Joiners, Local 25, 430 U.S. 290, 298 (1977).
13
pressure. The plaintiff filed an unfair labor practice charge
with the Board, alleging violations of Section 8(b)(1)(A) and
(B) of the Act. After the Regional Director dismissed the
charges, the plaintiff proceeded to state court and brought an
action against the union for intentional interference with con-
tractual relations. The state court rejected the Union’s claim
that Jones’ cause of action was pre-empted by the NLRA.
In reversing that decision, the Court clarified the scope of
the pre-emption test where the conduct sought to be regulated
by the state is “arguably prohibited” under the Act. Relying
on its earlier decision in Sears, Roebuck & Co. v. San Diego
County District Council of Carpenters, 436 U.S. 180 (1978),
the Court stated that “‘the critical inquiry’” is “‘whether the
controversy presented to the state court is identical to. . . or
different from . . . that which could have been, but was not,
presented to the Labor Board.’” Jones, 460 U.S. at 681 (quot-
ing Sears, 436 U.S. at 197).'* The plaintiff argued that the
claims were not identical because a Section 8(b)(1)(B) violation
requires union coercion, whereas the state law allegedly
reached noncoercive interference with contractual relation-
ships. Rejecting that argument, the Court pointed out that in
either instance a fundamental element of both the unfair labor
practice charge and the state claim is that the union’s actions
actually caused the discharge. Consequently, both the federal
and state claims were “the same in a fundamental respect,” '?
and the risk of interference with the Board’s jurisdiction was
therefore “obvious and substantial.” Jones, 460 U.S. at 682-
683. Thus, the Court confirmed that the test for pre-emption
utilized in Linn and clarified in Sears does not require complete
* Sears involved a state trespass claim brought against a union by an employer
whose establishment was being picketed. Although the picketing arguably
violated the Act, the Court held that the state cause of action was not identical
to any claim under the Board’s jurisdiction. While the Board would focus on
the objective for the picketing, the state court would be concerned only with
its location. Thus, there was no issue to be decided by the state court that was
central to the Board’s resolution of any unfair labor practice charge.
'‘The Court in a footnote distinguished Linn, but did not suggest that under
Linn a state defamation suit would be allowed even where, as here, the federal
and state claims are “the same in a fundamental respect.” Jones, 460 U.S. at
681 n.11.
14
congruity between the state cause of action and an arguable
unfair labor practice. Rather, where adjudication of the state
claim requires the court to resolve an issue at the core of the
unfair labor practice claim, pre-emption is necessary to protect
the jurisdiction of the Board. '*
In Tosti I], the Supreme Judicial Court held that the instant
case is governed directly by Linn. In so doing, it rejected the
Union’s argument that Linn is distinguishable, and that the
instant case is more appropriately analyzed under this Court’s
decision in Jones. The Union contends that the ruling in Tosti
II was error, and that under the Garmon doctrine, as clarified
in subsequent Supreme Court decisions, Tosti’s defamation
action is pre-empted by the NLRA.
The Union concedes that Linn would allow the state defama-
tion action herein to proceed when one considers only the
“arguably protected” branch of analysis.'° But Linn should not
be read as holding, as Tosti I] implies, that a cause of action
under state law for defamation can never be pre-empted when
a plaintiff is able to prove actual malice. Rather, adoption of
the actual malice standard was designed solely to establish the
outer limit of protected conduct under Section 7 of the Act.
What the Union maintains is that under the “arguably pro-
hibited” part of the pre-emption analysis, the facts of this case
are significantly distinct from those addressed by the Court in
Linn. Indeed, the facts of the instant case more closely resemble
those presented in Jones, where the Court found the state tort
claim to be pre-empted. Specifically, the decision in Linn
regarding the pre-emptive effect of arguabiy prohibited conduct
differs in two fundamental ways from the instant case.
First, the Court in Linn observed that in order to entertain
the defamation claim, the state court would not be required to
resolve issues central to the determination of a Section 8(b)(1)(A)
‘This interpretation of the holding in Jones has been acknowledged by at
least one federal court of appeals. See Lumber Production Industriai Workers,
Local #1054 v. West Coast Industrial Relations Association, Inc., 775 F.2d
1042, 1048-1049 (9th Cir. 1985).
'’ The Union is challenging, however, the Supreme Judicial Court’s holding
that the actual malice standard adopted in Linn was satisfied by Tosti. See
discussion at 18-23, infra.
2 dent
15
violation. Consequently, state court jurisdiction posed little
risk of interference with the Board’s exclusive jurisdiction to
regulate conduct prohibited by Section 8 of the NLRA. By
contrast, in the instant case, a central element of the plaintiff’s
defamation claim was that the Union had caused his discharge.
As the Court observed in Jones, such a claim arguably consti-
tutes a violation of Section 8(b)(1)(B). Jones, 460 U.S. at
680.'° Thus, both Tosti’s claim that the Union had caused his
discharge and any claim under Section 8(b)(1)(B) are “the
same in a fundamental respect,” and litigation of that issue in
state court creates an “obvious and substantial” risk of interfer-
ence with the Board’s jurisdiction. Jones, 460 U.S. at 682-683.
Second, Tosti does not present a situation where “[t]he Board
can award no damages, impose no penalty, or give any other
relief to the defamed individual.” Linn, 383 U.S. at 63. To
the contrary, the Board is empowered in a Section 8(b)(1)(B)
case to remedy the loss of income and fringe benefits attribut-
able to Tosti’s discharge through a back pay award. Silver Bay
Local Union No. 962, International Brotherhood of Pulp, Sul-
phite and Paper Workers, 215 NLRB 414 (1974), enforced,
510 F.2d 1364 (9th Cir. 1975). See also NLRB Casehandling
Manual §§ 10550 et seq. This factor further distinguishes the
instant case from Linn, where the Court emphasized that the
depth of the state’s interest in that case was attributable in
large measure to the lack of a federal remedy. Linn, 383 U.S.
at 64 n.6."”
To establish pre-emption, it also is necessary under the Court’s recent
decision in /nternational Longshoremen' s Association v. Davis, 476 U.S. 380
(1986) to show that Tosti arguably was a Section 8(b)(1)(B) emp'oyer-represen-
tative. The record reflects that Tosti held the position of foreman. Trial tes-
timony and the collective bargaining agreement further reflect that individuals
holding that position were directly involved in grievance-adjustment activities.
This evidence is more than sufficient to establish that Tosti arguably was an
employer-representative under Section 8(b)(1)(B). Cf. NLRB v. International
Brotherhood of Electrical Workers, Local 340, U.S. , 107 S.Ct. 2002
(1987).
The Union acknowledges that a back pay award would not provide Tosti
with the full relief recoverable in state court, such as damages for personal
humiliation and mental anguish. Nonetheless, the Court has “squarely rejected”
the argument that state court jurisdiction must be allowed simply because
additional or different relief may be available in the state forum. Jones, 460
U.S. at 684; Garmon, 359 U.S. at 246-247.
16
The Court has warned that the Garmon pre-emption doctrine
must not be applied “in a literal, mechanical fashion.” Sears,
436 U.S. at 188. This admonition must hold true for the excep-
tions as well as for the general rule. Therefore, the result in
this case should not be dictated merely by the fact that Tosti’s
claim was for defamation rather than interference with contrac-
tual relations. Congress surely did not intend for the pre-emp-
tive effect of the federal labor laws to hinge on the label affixed
to a particular cause of action.
What is central to deciding the pre-emption issue is whether,
in adjudicating and awarding damages in the state court action,
that court would by necessity decide issues central to the reso-
lution of an unfair labor practice. Here, as in Jones, the state
court was indeed required to decide whether the Union’s con-
duct caused Tosti’s discharge, precisely the issue “at the core
of § 8(b)(1)(B) cases.” Jones, 460 U.S. at 683. Thus, Tosti’s
claim is not merely of “peripheral concern” to the effective
and uniform implementation of the Act. Although the Court
in Linn found the state’s interest in protecting its citizens’
reputations to be “deeply rooted,” this alone is insufficient to
justify interference with the Board’s jurisdiction where it is
empowered to remedy the single most significant loss he al-
legedly suffered —- the loss of his job. Consequently, the
arguments for pre-emption in the instant case have not been
“vitiate[d]”, as they were in Linn.
B. Even If Not Pre-empted In Its Entirety, The Plaintiff s
Claim Should Be Partially Pre-empted In Order To Avoid
An Obvious And Substantial Risk Of Interference With
The Jurisdiction Of The NLRB.
Even if the Court were to conclude that Tosti’s defamation
claim is not pre-empted in its entirety, that claim should be
foreclosed at least to the extent that Tosti attempts to recover
damages for termination of his employment resulting from the
Union’s conduct. Indeed, permitting the defamation action in
this case to go forward but at the same time limiting the
damages awardable by the state court would be consistent with
the Court’s holding in Farmer v. United Brotherhood of Car-
penters and Joiners, Local 25, 430 U.S. 290 (1977). There,
17
the Court ruled that an individual could maintain a state claim
against his union for intentional infliction of emotional distress.
Nonetheless, to the extent that damages were attributable to
discrimination in hiring hall referrals, which violates the
NLRA, as opposed to the abusive manner of the union’s ac-
tions, damages could not be awarded because to do so would
interfere with the Board’s exclusive jurisdiction.
The instant case presents an equally compelling argument
for limiting the type of damages to those not available from
the NLRB. Such a result also avoids interference with the
Board’s jurisdiction while allowing the state to remedy harm
to its’ citizens’ reputations. As discussed above, had Tosti
filed a charge alleging a violation of Section 8(b)(1)(B), the
Board would have had to decide the “core issue” of whether
the Union, by its actions, had coerced GM into discharging
Tosti. Were a violation of the NLRA to be found, the Board
would be empowered to remedy the loss of Tosti’s job by
awarding him back pay, including certain fringe benefits such
as pension contributions and insurance benefits as well as lost
wages. By contrast, the Board would not be concerned with
other aspects of any injury to Tosti’s reputation, which could
be remedied through a state defamation suit. At the same time,
by foreclosure of damages for loss of income, the state court
would not have to address the core issue of a Section 8(b)(1)(B)
case — whether the Union was responsible for Tosti’s dis-
charge.
Foreciosing recovery for loss of income while permitting
other types of damages also poses no administrative obstacles.
Indeed, in Tosti III, the Supreme Judicial Court acknowledged
the clear distinction between an award of back pay and other
relief designed to compensate an individual for personal humili-
ation and anguish resulting from injury to his reputation. In
sum, by limiting the relief available in state court, as this Court
did in Farmer, the state can enforce its acknowledged interest
in protecting its’ citizens’ reputations without a substantial risk
of interference with the federal regulatory scheme governing
labor relations.
In conclusion, the principles spelled out in Garmon and
refined in subsequent decisions — including Linn — require
18
that state jurisdiction over the instant case be pre-empted in
view of the substantial risk of interference with the federal
regulatory scheme and the availability in this instance of a
personal remedy from the Board. Alternatively, even if a
balancirig of the federal and state interests leads to the conclu-
sion that this action is not pre-empted in its entirety, the Court
should excise, as it did in Farmer, those elements of the action
which are at the core of aclaim subject to Board jurisdiction.
Il. THE PLAINTIFF’S EVIDENCE WAS INSUFFICIENT As A MAT-
TER OF LAW TO ESTABLISH WITH CLEAR AND CONVINCING
CLARITY THAT THE UNION OFFICIAL KNEW THAT THE
STATEMENT CONCERNING THE PLAINTIFF WAS FALSE, OR
THAT THE UNION OFFICIAL ACTED WITH RECKLESS DISRE-
GARD OF WHETHER His STATEMENT WAS FALSE OR NOT,
AND CONTRARY TO THE SUPREME JUDICIAL COURT’S HOLD-
ING, THE MOTIVATION TO ENFORCE A COLLECTIVE Bar-
GAINING AGREEMENT CANNOT GIVE RISE TO AN INFERENCE
OF “ACTUAL MALICE.”
In Linn, the Supreme Court manifested its concern that
debate in the context of labor disputes be allowed to flourish
free of the spectre of state court defamation actions. The Court
recognized that the NLRA encourages uninhibited, robust, and
wide-open debate:
Labor disputes are ordinarily heated affairs; the language
that is commonplace there might well be deemed action-
able per se in some state jurisdictions. Indeed, [labor
disputes] are frequently characterized by bitter and ex-
treme charges, countercharges, unfounded rumors, vitu-
perations, personal accusations, misrepresentations and
distortions. Both labor and management often speak
bluntly and recklessly, embellishing their respective posi-
tions with imprecatory language.
Id., 383 U.S. at 58. In order to safeguard “against abuse of
libel actions and unwarranted intrusion upon free discussion
19
envisioned by the Act,” the Court held that federal labor law
pre-empts state libel law to the extent that defamatory state-
ments made in the context of a labor dispute are actionable
only if the statements were made with “actual malice,” as that
term has come to be understood through New York Times Co.
v. Sullivan, 376 U.S. 254, 279-280 (1964) and its progeny.
Linn, 383 U.S. at 61, 65. Thus, a person who claims that he
has been defamed in a labor dispute cannot recover unless he
pleads and proves that the false statement was made with
knowledge of falsity or reckless disregard of whether the state-
ment was true or false.
The Supreme Judicial Court properly acknowledged that the
article published in the Union newspaper concerned a con-
troversy over supervisory personnel doing bargaining unit work
in violation of the collective bargaining agreement and, as
such, was a statement made in the context of a labor dispute
and entitled to the protection of Linn. Tosti 1, 386 Mass. at
724. As this Court has noted, “whether Linn’ s partial pre-emp-
tion of state libel remedies is applicable obviously cannot de-
pend on some abstract notion of what constitutes a ‘labor
dispute’; rather, application of Linn must turn on whether the
defamatory publication is made in a context where the policies
of the federal labor laws leading to protection for freedom of
speech are significantly implicated.” Old Dominion Branch
No. 496, National Association of Letter Carriers v. Austin,
418 U.S. 264, 279 (1974). Therefore, the Supreme Judicial
Court held that the trial court’s failure to instruct on “actual
malice” at the first trial of this action compelled a new trial
under instructions mandated by this Court’s opinion in Linn.
Tosti 1, 386 Mass. at 725.
In cases governed by the principles of the New York Times
case, the plaintiff bears the burden of proving “actual malice”
with clear and convincing evidence that the defendant realized
that his statement was false or that he subjectively entertained
serious doubt as to the truth of his statement. New York Times,
376 U.S. at 280; Gertz v. Robert Welch, Inc., 418 U.S. 323,
342 (1974); Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485, 511 n.30 (1984). The test to determine
20
whether a statement was published with “reckless disregard”
of its truth or falsity has been variously described by the Su-
preme Court as “subjective awareness of probable falsity”
(Gertz, 418 U.S. at 335 n.6); a “high degree of awareness of
. . . probable falsity” (Garrison v. Louisiana, 379 U.S. 64,
74 (1964); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81,
84 (1967) (per curiam)); and “awareness of probable falsity”
(Curtis Publishing Co. v. Butts, 388 U.S. 130, 153 (1967)).
Indeed, the Court has made it plain that “[t}here must be
sufficient evidence to permit the conclusion that the defendant
in fact entertained serious doubts as to the truth of his publica-
tion. Publishing with such doubts shows reckless disregard for
truth or falsity and demonstrates actual malice.” St. Amant v.
Thompson, 390 U.S. 727, 731 (1968); Herbert v. Lando, 441
U.S. 153, 156 (1979). Where a statement concerns the report-
ing of an ambiguous situation, the breathing space necessary
for the very survival of the First Amendent does not allow a
finding of “actual malice” to be based on no more than a
defendant’s “error of judgment.” Time, Inc. v. Pape, 401 U.S.
279, 292 (1971). Courts that have properly applied the Supreme
Court’s test have recognized “‘the almost decisive amplitude
of “breathing space” surrounding defamatory falsehood, once
a plaintiff is obliged to meet the New York Times standard.’”
Bose Corp. v. Consumers Union of United States, Inc., 692
F.2d 189, 195 (1st Cir. 1982) (quoting Bruno & Stillman, Inc.
v. Globe Newspaper Co., 633 F.2d 583, 586 (Ist Cir. 1980)),
aff d, 466 U.S. 485 (1984).
The Supreme Judicial Court realized that because this defa-
mation action was governed by the New York Times standard,
the Court was under an obligation to determine whether the
jury would be warranted in concluding that “actual malice”
was shown by clear and convincing evidence. Tosti II, 394
Mass. at 491. The Supreme Court has made it abundantly clear
that appellate courts must independently assess those portions
of the record which relate to the “actual malice” determination.
Bose Corp., 466 U.S. at 514 n.31. See also id., 466 U.S. at
519 n.2 (Rehnquist, J., dissenting, joined by O’Connor, J.)
(defamation actions from state courts after a jury trial are “the
strongest case for independent factfinding by this Court’).
21
“Judges, as expositors of the Constitution, must independently
decide whether the evidence in the record is sufficient to cross
the constitutional threshold that bars the entry of any judgment
that is not supported by clear and convincing proof of ‘actual
malice.’” /d., 466 U.S. at 511.
The Union respectfully submits that the record is barren of
any independent evidence that Henry Ayik “realized the inac-
curacy of the statement, or entertained serious doubts as to its
truthfulness, at the time of the publication.” Jd., 466 U.S. at
498. Rather, the evidence submitted by the plaintiff to the jury
at most constituted proof of falsity, and mere proof of falsity
is, aS a matter of law, insufficient to prove “actual malice.”
Id., 466 U.S. at 511. Therefore, the Union requests that this
Court issue its Writ of Certiorari to determine whether the
plaintiff sustained his burden of proving “actual malice” with
clear and convincing evidence.
The Supreme Judicial Court held in Tosti I], 394 Mass. at
491-494, that Tosti had presented sufficient evidence to show
with clear and convincing proof that Henry Ayik knew that
his article was false or subjectively entertained serious doubts
about the truth of his statement. An independent assessment
of the portions of the record which relate to the “actual malice”
determination will, the Union submits, clearly indicate that
the plaintiff's evidence was fatally deficient to show that Henry
Ayik knowingly published a false description of what he be-
lieved he had observed, or subjectively entertained serious
doubts about what he believed he had observed on June 7, 1971.
The very heart of the Supreme Judicial Court’s holding on
“actual malice” is that Henry Ayik’s conceded motivation to
write the article in an attempt to enforce the collective bargain-
ing agreement’s prohibition on supervisory employees per-
forming bargaining unit work allows an inference that Henry
knowingly fabricated the article or published it with subjective
doubts as to its truth. Tosti I], 394 Mass. at 493. The Supreme
Judicial Court concluded that the “jury could therefore have
found that this motive led the defendant to either fabricate the
other charges or to make accusations based on suspicions and
not facts.” Jd. The Court went on to say that this conclusion
22
would have been particularly warranted if the jury had found
that Henry could not have observed Tosti during the months
of April and May because Henry and Tosti were, according
to Tosti, on different shifts. /d.
The Supreme Judicial Court’s ruling on “actual malice”
would urn this Court’s opinions in Linn and Old Dominion
on their heads. The fact that this labor dispute concerned an
effort to enforce the collective bargaining agreement between
the Union and GM was the very reason that the Supreme
Judicial Court in Tosti 1, 386 Mass. 721, had held that Tosti
could not recover in his libel action unless he showed that the
allegedly defamatory publication was made with “actual
malice.” The carefully crafted protections accorded to debate
in the labor context by the NLRA and by this Court’s opinions
in Linn and Old Dominion are simply set at naught by the
Supreme Judicial Court’s decision in Tosti II, 394 Mass. at
493. A jury cannot be allowed to infer knowledge of falsity
or reckless disregard for the truth from the mere fact that a
defendant was motivated to publish a Union newspaper article
to enforce the collective bargaining agreement’s prohibition
on supervisory employees doing bargaining unit work. If the
Supreme Judicial Court’s ruling is allowed to stand, the very
shield of protection afforded by the imposition of the “actual
malice” standard in the context of a labor dispute would become
a sword in the hand of defamation plaintiffs asking a jury to
infer ‘actual malice” by the mere motivation to enforce the
collective bargaining agreement. As well might a “public of-
ficial” or a “public figure” argue that “actual malice” should
be inferred by the motivation of 1 newspaper reporter to
criticize a public official’s or a public figure’s conduct. See,
e.g., New York Times, 376 U.S. 254; Gertz, 466 U.S. 323.
If the very reason for requiring a plaintiff to meet the “actual
malice” standard allows an inference that the standard has been
satisfied in the particular case at hand, the protections afforded
to debate in the labor context by Linn, Old Dominion, and the
NLRA are chimerical indeed."
'* See Farmer, 430 U.S. at 305 (“Union discrimination in employment op-
portunities cannot itself form the underlying ‘outrageous’ conduct on which
the state-court tort action is based; to hold otherwise would undermine the
23
The Supreme Judicial Court clearly erred in holding that
Henry Ayik’s motivation to write an article concerning the
performance of bargaining unit work by a supervisor warranted
an inference by the jury that that motivation led Henry to
fabricate his story or to base his conclusions on suspicions
instead of facts.'? The Union respectfully urges this Court to
issue its Writ of Certiorari to review the final judgment of the
Supreme Judicial Court in order to restore vitality to the Court’s
holdings in Linn and Old Dominion.
III. A DAMAGE AWARD OF $275,000.00 (WITH INTEREST IN
THE AMOUNT OF $428,187.17) IN THIS DEFAMATION AC-
TION Is CLEARLY EXCESSIVE AND UNSUPPORTED BY COMPE-
TENT EVIDENCE IN THE RECORD WHERE (1) No EVIDENCE
OF THE VALUE OF THE PLAINTIFF’S ALLEGEDLY Lost Em-
PLOYMENT BENEFITS WAS PRESENTED BY THE PLAINTIFF;
(2) THE SUPREME JUDICIAL COURT CHARACTERIZED THE
PLAINTIFF’S EVIDENCE OF HARM TO REPUTATION AND MEN-
TAL SUFFERING AS “SPARSE INDEED”; (3) THE JURY RE-
TURNED A VERDICT OF ONLY $5,000.00 AGAINST THE AU-
THOR OF THE ALLEGED LIBEL FOR WHICH THE UNION WAS
ONLY LIABLE VICARIOUSLY; AND (4) THE JuRY Was
CLEARLY MOTIVATED BY ANIMUS TOWARD UNIONS BE-
CAUSE IT WAS PREPARED TO HOLD THE UNION LIABLE
REGARDLESS OF WHETHER ANY UNION OFFICIAL HAD Com-
MITTED ANY WRONG AGAINST THE PLAINTIFF.
This Court has emphasized that “in view of the propensity
of juries to award excessive damages for defamation, the avail-
ability of libel actions may pose a threat to the stability of
labor unions and smaller employers.” Linn, 383 U.S. at 64.
pre-emption principle.”). Here, too, a motivation to enforce the collective
bargaining agreement cannot itself form the underlying “actual malice” on
which the state defamation action is allowed to proceed. To hold as the Supreme
Judicial Court did is to undermine the pre-emption principle of Linn.
This holding is particularly inappropriate given that GM’s independent
investigation of Tosti’s activities with a repair punch led GM to the same
conclusion that Henry Ayik had reached on June 7, 1971; namely, that Tosti
was punching repair tickets without performing repairs.
24
The Court has held that “‘[i]f the amount of damages awarded
is excessive, it is the duty of the trial judge to require a remittitur
or a new trial.’” Old Dominion, 418 U.S. at 287 n.17 (quoting
Linn, 383 U.S. at 65-66).”
In recognition of the Supreme Court’s precedents, the Su-
preme Judicial Court has held that “‘[b]ecause of constitutional
considerations, and the potential difficulties in assessing fair
compensation . . . both trial and appellate judges have a special
duty of vigilance in charging juries and reviewing verdicts to
see that damages are no more than compensatory.’” Tosti II,
394 Mass. at 495 (quoting Stone v. Essex County Newspapers,
Inc., 367 Mass. 849, 861, 330 N.E.2d 161, 170 (1975)).
Therefore, after reviewing the evidence the plaintiff submitted
as proof of his damages, the Supreme Judicial Court held in
Tosti II, 394 Mass. at 499 that “the jury’s award of $495,000
against the Union was clearly excessive and impermissibly
reflected prejudicial or punitive considerations.” The Court
took special note that the jury had inquired of the trial judge
during its deliberations whether it could find the Union liable
without finding that any of the defendant Union officials had
committed any wrong against the plaintiff. Jd., 394 Mass. at
499 n.11. In its opinion, the Supreme Judicial Court held that
it was unable to competently estimate the amount of the plain-
tiff’s allegedly lost employment benefits “on the basis of the
record presented.” /d., 394 Mass. at 497 n.10. In addition,
the court characterized the plaintiff's evidence of harm to repu-
tation and mental suffering as “sparse indeed,” gleaning from
the record only the plaintiff's wife’s testimony that “the plain-
tiff was ‘shook up’ on the day of his discharge and lay down
when he returned home which was very unusual for him to
do. There was no suggestion that the plaintiff received any
medical or psychiatric treatment as a result of the libel.” /d.,
394 Mass. at 498-499.
Despite these clear and unequivocal holdings in the Supreme
Judicial Court’s opinion in Tosti //, the trial court, on remand,
Of course, if any libel award on the basis of the Union publication would
be inconsistent with the requirements of federal labor law, the Court need not
reach the Union’s alternative argument that the damages awarded to Tosti were
excessive. Old Dominion, 418 U.S. at 287 n.17.
25
adopted the special master’s suggested remittitur of the dam-
ages from $495,000.00 to $275,000.00. See Appendix G, pp.
40a-45a. In certain fundamental respects, the special master’s
recommendation of remittitur did not fulfill the trial court’s
special duty of vigilance to ensure that the damage award was
not excessive, but rather, based on competent evidence of
actual injury in the record.
The special master believed that his recommended remittitur
was supported by the fact that “two juries returned verdicts
against the defendants in excess of $400,000.” Appendix G,
p. 44a. The Union argued to the trial court and to the Supreme
Judicial Court that reliance on the first jury verdict that was
based on jury instructions that did not include an instruction
on “actual malice” as required by the Supreme Judicial Court’s
opinion in Linn was manifestly inappropriate. Tosti I, 386
Mass. 721. The Union also argued that reliance on the jury’s
verdict of $495,000.00 that was held to be clearly excessive
and reflective of prejudicial and punitive considerations in
Tosti II, 394 Mass. 482, was also improper, especially since
the jury awarded only $5,000.00 in damages against the author
of the alleged libel for which the Union was only vicariously
liable. That the jury’s negative attitude toward the labor move-
ment entered into its consideration need not be surmised in
this action merely because of the gross discrepancy between
the jury awards against Henry Ayik and against the Union.
The jury’s animus toward unions was palpable in its questions
to the trial judge on whether they could hold the Union respon-
sible for the defamation even if all of the Union officials were
exonerated of any liability. Rather than eliminating the im-
proper effect of negative attitudes toward unionization in exa-
mining the jury’s award, the special master and the trial court
embraced the jury’s award. By failing to address these argu-
ments on appeal, the Supreme Judicial Court in Tosti II], 400
Mass. 224, the Union believes, failed to exercise that special
duty of vigilance that is the labor movement’s last refuge
against jury awards that are actuated more by animus toward
unions than by competent evidence of actual injury presented
by the plantiff.
26
In another respect, the damages as remitted by the trial court
remain clearly excessive. The special master held that even
though Tosti had presented no evidence of the value of employ-
ment benefits which he allegedly lost as a result of GM’s
termination of his employment, he considered the plaintiff's
alleged loss of employment benefits in making his recommen-
dation on remand. Appendix G, p. 43a. Under Massachusetts
law, it has been clear that “special damages,” such as lost
employment benefits, must be pleaded and proved in order to
recover for their loss in a defamation action. Stone, 367 Mass.
at 860, 330 N.E.2d at 169; Muchnick v. Post Publishing Co.,
332 Mass. 304, 125 N.E.2d 137 (1955); Lewis v. Vallis, 356
Mass. 662, 255 N.E.2d 337 (1970); Craig v. Proctor, 229
Mass. 339, 118 N.E. 647 (1918). Thus, in Tosti I], 394 Mass.
at 497 n.10, the Supreme Judicial Court had held that no award
for loss of the plaintiff's employment benefits could be made
on this record because there was no competent evidence pre-
sented by Tosti from which the Court could ascertain or even
competently estimate the value of such benefits that Tosti
allegedly lost. Nonetheless, in Tosti /II, 400 Mass. at 228,
the Supreme Judicial Court affirmed the judgment even though
it recognized that “there was no evidence of [the] monetary
value” of plaintiff's lost benefits “such as hospital, medical
and life insurance, and pension rights.” An award of damages
for such allegedly lost benefits is a clear departure from Mas-
sachusetts precedent. Moreover, it is contrary to this Court’s
opinion in Linn, 383 U.S. at 65, that “a complainant may not
recover except upon proof of harm, which may include general
injury to reputation, consequent mental suffering, alienation
of associates, specific items of pecuniary loss, or whatever
form of harm would be recognized by state tort law. The fact
that courts are generally not in close contact with the pressures
of labor disputes makes it especially necessary that the rule
be followed.” See also Farmer, 430 U.S. at 299. Therefore,
by allowing Tosti to recover, in an unspecified amount, for
allegedly lost employment benefits for which he presented no
evidence of pecuniary value, the Supreme Judicial Court de-
parted from the Supreme Court’s admonition in Linn that a
27
defamation plaintiff cannot recover for specific items of
pecuniary loss without proof of such resulting harm.!
Finally, the special master recommended a very substantial
award for general damages for harm to reputation and mental
suffering. Appendix G, pp. 44a. The Supreme Judicial Court
in Tosti IT, 394 Mass. at 498-499, held that the evidence Tosti
presented of harm to reputation and mental suffering was
“sparse indeed.” The Court noted that “[t]he record contains
testimony by the plaintiff's wife that the plaintiff was ‘shook
up’ on the day of his discharge and lay down when he returned
home, which was very unusual for him to do. There was no
suggestion that the plaintiff received any medical or psychiatric
treatment as a result of the libel.” In Tosti I/], 400 Mass. at
229, the Court acknowledged its former characterization of
the evidence of harm to reputation and mental suffering as
“sparse indeed,” but states that the plaintifi did submit evidence
that he had to sell his two homes and furniture, to relocate
seven times to rental properties, and to borrow money from
relatives as a result of his termination from GM. However,
these alleged consequences of the defamation arise solely from
the plaintiff's alleged loss of income that he would have earned
but for GM’s decision to terminate his employment. No evi-
dence was presented by the plaintiff that his reputation was
damaged in the eyes of even a single individual, and the evi-
dence of mental suffering that was unrelated to the loss of
income was limited to Tosti’s wife’s testimony that he was
shaken up on the day of his discharge and lay down upon his
return home. Such sparse evidence is, most assuredly, woefully
insufficient to support a very substantial damage award.
In sum, the Union respectfully urges that the Court issue
its Writ of Certiorari to the Supreme Judicial Court to review
the $275,000.00 libel award against the Union in this action
that the Union claims is clearly excessive based on the evidence
that the plaintiff submitted to the trial court.
*' The special master awarded $100,000.00 to the plaintiff for lost income,
and $175,000.00 for lost employment benefits and general damages for harm
to reputation and mental suffering. The special master did not allocate the
$175,000.00 between the latter two categories of damages.
28
Conclusion.
For the foregoing reasons, it is respectfully requested that
this Honorable Court issue its Writ of Certiorari to review the
judgment of the Supreme Judicial Court for the Commonwealth
of Massachusetts.
Respectfully submitted,
GARY R. GREENBERG,*
MICHAEL R. BROWN,
LOUIS J. SCERRA, JR.,
ELLIOT K. GORDON,
GOLDSTEIN & MANELLO,
265 Franklin Street,
Boston, Massachusetts 02110.
(617) 439-8900
*Counsel of Record
Appendix.
Table of Contents.
Appendix A
Opinion of the Supreme Judicial Court, reported at
400 Mass. 224 (June 10, 1987)
Appendix B
Opinion of the Supreme Judicial Court, reported at
394 Mass. 482 (April 10, 1985)
Appendix C
Opinion of the Supreme Judicial Court, reported at
386 Mass. 721 (July 9, 1982)
Appendix D
Judgment dated June 10, 1987
Appendix E
Denial of Petition for Rehearing dated July 2, 1987
Appendix F
Orders on Motion for Stay of Enforcement of Judg-
ment dated August 7, 1987
Appendix G
Memorandum and Order, Memorandum in Support
of Recommended Remittitur and Corrected
Memorandum and Order
la
7a
27a
36a
37a
38a
40a
la
!
Appears A 400 Mass. 224
224
Tosti v. Ayik.
AUGUSTINO TOSTI vs. HENRY AYIK & another.'
Middlesex. December 5, 1986. — June 10, 1987.
Present: HENNESSEY, C.J., WILKINS, ABRAMS, & O'CONNOR, JJ.
Libel and Slander. Damages, Libel, Remittitur, Back pay, Mitigation,
Emotional distress.
A plaintiff whose employment had been terminated as the result of the publi-
cation of libelous statements concerning him in a union newspaper was
required to make a good faith effort to mitigate his damages by seeking
comparable employment, but once that effort was made, he was entitled
to be compensated in an amount that reflected what he would have
earned had his employment not been terminated. [227-228]
in an action arising from the publication of alleged libelous statements in a
union newspaper concerning the plaintiff, a foreman in an automobile
manufacturing plant whose employment had been terminated as a result
of the statements, an award of $703,187.17, including interest, against
the union was not clearly excessive where adequate evidence warranted
‘United Auto Workers, Local 422. When this action was originally com-
menced by the plaintiff, an unincorporated voluntary association such as a
labor union could not be sued in its own right. Tosti v. Ayik, 394 Mass.
482, 484 n.4 (1985) (Tosti IN), citing Members of Bakery & Confectionery
Workers Int'l Union, Local 458 v. Hall Baking Co., 320 Mass. 286 (1946).
Consequently, the action was brought against several representative officers
and members of the union, as well as two members as individuals. Tosti
II, supra at 484. Before the retrial of this action mandated by Tosti v. Ayik,
386 Mass. 721 (1982) (Tosti J), however, we altered this rule and held that
unions will be considered “legal entities for the purpose of suing or being
sued.” DiLuzio v. United Elec., Radio & Mach. Workers, Local 274, 386
Mass. 314, 314 (1982). Nonetheless, both after retrial and after plaintiff's
acceptance of the remittitur, judgment entered against “Members of Local
422, United Auto Workers.” A review of the record makes clear the trial
judge during retrial applied DiLuzio, recognizing that plaintiff's claims were
being asserted against the union, and not against members of the union.
Similarly, our treatment of the issue in Tosti I], supra at 482 n.1, 484 n.4,
also indicates that the union itself is the appropriate defendant. Accordingly,
we treat this as an action against Local 422 of the United Auto Workers.
In light of the disposition of this case, the judgment entered against the
members of Local 422 of the United Auto Workers should be vacated, and
an appropriate judgment against the union local itself should be entered.
2a
400 Mass. 224 225
Tosti v. Ayik.
a master’s conclusions as to the consequences to the plaintiff from his
termination and where, in concluding that “the quality and standard of
plaintiff's life was substantially affected by defendant’s conduct,” the
master properly took into account that the “plaintiff lost his job, the
benefits incident thereto, was forced to sell his home, and was unable
to find comparable work.” [228-229]
Tort. Writ in the Superior Court dated August 6, 1973.
Following review by the Supreme Judicial Court reported
in 394 Mass. 482 (1985), a remittitur was ordered by Thomas
R. Morse, Jr., J.
The Supreme Judicial Court granted a request for direct
appellate review.
Gary R. Greenberg (Louis J. Scerra, Jr., with him) for
United Auto Workers, Local 422.
John J. C. Herlihy (Karen M. Thursby with him) for the
plaintiff.
O’Connor, J. The plaintiff, previously a foreman of General
Motors Corporation (G.M.) in Framingham, commenced this
action in 1973 to recover for libel and tortious interference with
his employment relationship with G.M. The action arose out
of an article in the defendant union’s newspaper written by the
defendant Henry Ayik. The article accused the plaintiff of
engaging in union work in violation of the union’s contract
with G.M., and punching vehicle repair tickets indicating that
work had been done although it had not been done. The plaintiff
alleges that the article caused G.M. to fire him. The jury
returned verdicts against Henry Ayik, Baheege Ayik, and the
union. The defendants appealed, and this court reversed the
judgments and ordered a new trial. Tosti v. Ayik, 386 Mass.
721 (1982) (Tosti I).
On retrial, the jury found for all the defendants on the plain-
tiff’s claim of tortious interference with his employment re-
lationship, and they found for the defendant Baheege Ayik on
the libel claim. However, they found for the plaintiff against
Henry Ayik in the sum of $5,000? and against the union in the
? Judgment was entered on that verdict. There was no appeal.
226 400 Mass. 224
Tosti v. Ayik
in the sum of $495,000 on the libel claims. On the union’s
appeal, however, this court held that the verdict against the
union was “clearly excessive and impermissibly reflected prej-
udicial or punitive considerations.” Tosti v. Ayik, 394 Mass.
482, 499 (1985) (Tosti IJ). We remanded the case to the
Superior Court to give the defendant an opportunity to move
for a new trial on damages alone based on the excessiveness
of the jury’s assessment. We expressly recognized the plain-
tiffs right under Mass. R. Civ. P. 59 (a), 365 Mass. 827
(1974), “to remit such sum as the judge considers excessive”
as an alternative to a new trial on damages. /d.
On remand, a special master was appointed to make a recom-
mendation concerning an appropriate remittitur. The special
master had been the trial judge at the second trial before re-
signing as a judge of the Superior Court. The special master
recommended a remittitur to $275,000, and the Administrative
Justice of the Superior Court adopted the recommendation.
The plaintiff accepted the remittitur. Judgment entered for the
sum of $275,000, with interest thereon in the sum of
$428.187.17, and the union appealed claiming that the reduced
verdict was still excessive. We allowed the plaintiff’s applica-
tion for direct appellate review. We now affirm the judgment.
We observed in Tosti II, supra at 495, quoting from Stone
v. Essex County Newspapers, Inc., 367 Mass. 849, 861 (1975),
that, in defamation cases against labor unions, concern for
First Amendment rights and for Federal labor policy imposes
on “both trial and appellate judges . . . a special duty of
vigilance in charging juries and reviewing verdicts to see that
damages are no more than compensatory.” We emphasized
that the plaintiff was entitled “only to fair compensation” for
the losses that he had pleaded and proved. /d. at 496. We
focused on the requirement that, for a loss to be recoverable,
the fact finder must determine on the basis of adequate evidence
that it was caused by the defendant’s wrongful conduct. To
illustrate that point, we discussed several decisions in other
jurisdictions. Jd. at 496-498. We noted that the plaintiffs in
those cases were denied recovery for their alleged inability to
obtain employment because the evidence was insufficient to
4a
400 Mass. 224 227
Tosti v. Ayik.
to show that such inability was the result of the defendants’
defamatory statements. /d. at 497-498. See Lawlor v. Gal-
lagher Presidents’ Report Inc., 394 F. Supp. 721 (S.D.N.Y.
1975); Benassi v. Georgia-Pacific, 662 P.2d 760 (Or. Ct.
App.), modified, 667 P.2d 532 (Or. Ct. App. 1983); Lawrence
v. Jewell Cos., 53 Wis. 2d 656 (1972).
Based primarily on our discussion of those cases, the defend-
ant now argues that in Tosti // we announced that a plaintiff,
whose employment is terminated as a result of the libellous
statements of third parties, cannot recover for that loss without
also proving that new employment was unavailable due to the
libel having been published to prospective employers. The
defendant misreads Tosti 1]. Such a rule would not merely
limit a plaintiff to truly compensatory damages. Rather, it
would deny him full compensation for the wrong done to him.
It has never been our intention to adopt such a rule. In all the
cases that we discussed in Tosti // to illustrate the necessity
for a plaintiff to prove a causal relationship between a defend-
ant’s wrongful conduct and the plaintiff's claimed loss, there
was no claim, :as there is here, that the plaintiff was fired
because of the defendant’s defamatory statement. In each case,
the only claim of loss was that the plaintiff could not market
his services because his reputation among prospective purchas-
ers had been wrongly damaged. That claim is not made here.
The only claim in this case is that the union’s libel caused the
plaintiff to lose his job, which in turn had harmful conse-
quences. The relevance of the out-of-State cases discussed in
Tosti II is limited to the principle that a plaintiff must prove
a causal connection between alleged wrongs and claimed
losses.
We said in Tosti I], supra at 498, that “[w]hile in this case
the jury could conclude from the evidence that the plaintiff
lost employment due to the defendant’s article, that finding
does not necessarily entitle the plaintiff to all future wages he
would have otherwise earned from G.M.” That, of course, is
true. A plaintiff, whose employment is terminated because of
a third party’s tortious conduct, must make a good faith effort
to mitigate damages by seeking other comparable employment,
Sa
228 400 Mass. 224
Tosti v. Ayik.
but, if that effort is made, the plaintiff is entitled to be compen-
sated in an amount that reflects what he would have earned
had his employment not been terminated. We turn, then, to
the special master’s memorandum explaining his recommended
remittitur.
The special master arrived at the following conclusions on
adequate evidence: The plaintiff was approximately forty-four
years old when his employment was terminated; he had been
employed at G.M. for twenty-three years and had a good em-
ployment record, having “worked his way up from an hourly
wage position to the management position of foreman .. .;
while no evidence was presented that the libel was communi-
cated to other potential employers, no comparable work in
terms of pay was seemingly available for a man of plaintiff’s
age, experience and skill within a reasonable area of his resi-
dence . . .; plaintiff has made good faith and continuing efforts
to find comparable work since the date of his termination. . .;
plaintiff lost $100,000 of the income he would have earned in
base pay as a General Motors foreman as a result of defendant’s
conduct.””*
In concluding that “a remittitur to the sum of $275,000 is
appropriate and just,” the special master considered the plain-
tiff’s loss of benefits, such as hospital, medical and life insur-
ance, and pension rights in addition to the $100,000 loss of
income. He assigned no specific monetary value to those losses
other than the loss of income. Indeed, there was no evidence
of their monetary value. But, in concluding that “the quality
and standard of plaintiff's life was substantially affected by
defendant’s conduct,” the special master properly took into
account that the “plaintiff lost his job, the benefits incident
thereto, was forced to sell his home, and was unable to find
comparable work.” As the special master recognized, resulting
personal humiliation and mental anguish are compensable even
*In Tosti II, we noted the plaintiffs testimony that, from the time of his
discharge in 1971 until the second trial in 1983, the plaintiff's total earnings
“were approximately $124,000 compared to the estimated $224,000 he
would have earned in base pay as a G.M. foreman.” /d. at 497.
6a
400 Mass. 224 229
Tosti v. Ayik.
though their translation into money damages is necessarily
imprecise. Stone v. Essex County Newspapers, Inc., supra at
861.
In Tosti II, supra at 498, we characterized the evidence of
harm to the plaintiff’ s reputation and mental suffering as “sparse
indeed.” Despite that characterization, however, we must ac-
knowledge that the evidence did portray a man who, before
being discharged by G.M., owned two homes that he had to
sell as a result of the defendant’s conduct, uprooting his family
from an area in which they had lived their entire lives. Also,
there was evidence that the plaintiff and his family were forced
to relocate seven times to various rental properties, sell their
furniture, and borrow money from relatives to survive, and
there was evidence of a deterioration in the plaintiff's social
life. We cannot fairly say that $275 ,000 more than compensates
the plaintiff for the tortious wrong done to him. Accordingly,
we affirm the judgment.
So ordered.
7a
Appendix B
482 394 Mass. 482
Tosti v. Ayik.
AUGUSTINO TOSTI vs. HENRY AYIK & another.'
Middlesex. December 3, 1984. — April 10, 1985.
Present: HENNESSEY, C.J., Liacos, ABrams, & O'Connor, JJ.
Labor, Federal preemption. Libel and Slander. Jurisdiction, Labor case.
Statute, Construction. Evidence, Business record, Relevancy and ma-
teriality. Practice, Civil, Mistrial, Judgment notwithstanding verdict,
Verdict. Damages, Libel. Interest.
Federal labor law did not preempt a State court’s subject matter jurisdiction
over an action arising from the publication in a local union newspaper
of allegedly libelous statements, to the effect that the plaintiff, while a
foreman in an automobile manufacturing plant, had engaged in “bargain-
ing unit” work, contrary to a collective bargaining agreement then in
force, and that he had punched repair tickets without the requisite repair
work being done. [485-486]
The judge at a libel trial correctly instructed the jury that a labor union local’s
vicarious tort liability for the alleged libelous statements could be proved
by a preponderance of the evidence. [486-488]
At the irial of a civil action the judge correctly excluded from evidence cer-
tain memoranda taken from an employer’s personnel files, which were
offered as business records, where the proponent failed to show that it
was the business duty of the authors to prepare such memoranda in the
regular course of business. [488-489]
the trial of a libel action arising from the publication of an article in a
local union newspaper, the judge did not abuse his discretion in admitting
evidence of a statement made three years earlier by the union’s shop
chairman to the effect that he would “get” the plaintiff for his opposition
to a union strike, where the statement was relevant to establish a possible
union motive for the alleged libel. [489-490]
At the trial of a civil action the judge acted properly within his discretion in
denying the defendants’ motion for a mistrial and instead giving curative
instructions to the jury, after the plaintiff's disclosure, during his direct
examination, of a settlement he had received in a related case. [490]
At the trial of an action arising from the publication of allegedly libelous
statements in a local union newspaper, the jury were warranted in finding,
on clear and convincing evidence, that the statements were published
A
‘United Auto Workers, Local 422.
8a
394 Mass. 482 483
Tosti v. Ayik.
with actual malice as defined in New York Times Co. v. Sullivan, 376
U.S. 254, 279-280 (1964), and the jury were justified in imputing the
author’s state of mind to the union for the purpose of establishing the
union’s vicarious liability. [491-494]
In a libel action against a labor union local and the author of certain state-
ments published in the union newspaper, the judge correctly denied the
defendants’ motions for judgment notwithstanding the verdicts and for
a new trial. [494-495]
In an action arising from the publication of alleged libelous statements in a
union newspaper concerning the plaintiff, a foreman in an automobile
manufacturing plant, an award of $495,000 damages against the union
was clearly excessive, and reflected impermissible considerations,
where, although the jury could conclude from the evidence that the
plaintiff had iost his employment as a result of the statements, the record
reflected no proof that the plaintiff's failure to find full-time employment
for an eleven-year period was the result of the tortious acts and where
evidence of other consequences to the plaintiff was sparse. [495-499]
In computing interest on verdicts for the plaintiff in a civil action, the judge
correctly gave retroactive effect to the twelve percent interest rate fixed
byG. L.c. 231, § 6B, as amended through St. 1982, c. 183. [499-500]
Tort. Writ in the Superior Court dated August 6, 1973.
Following review by the Supreme Judicial Court reported
in 386 Mass. 721 (1982), the case was retried before Rudolph
F. Pierce, J.
The Supreme Judicial Court granted a request for direct
appeliate review.
Gary R. Greenberg for the defendants.
Robert L. Bouley (Karen M. Thursby with him) for the
plaintiff.
HENNESSEY, ©.J. This is an appeal by the defendants Henry
Ayik and United Auto Workers, Local 422 (union), from judg-
ments entered against them in the Superior Court. In that action
the plaintiff alleged that he was the subject of a defamatory
article, written by Ayik and published in the union’s newspaper.
The article, which appears in the margin,’ alleged that the plain-
>“On Monday, June 7th [1971,] at 11:34 p.m. Gus Tosti foreman in the
electrical hole, was working on job # 603677, a green 4 door Pontiac,
T37. Pete Hanningson (rank unknown) was standing guard next to him.
This is how Gus repairs cars. He has an inspection punch, #K2 and if he
a
9a
484 394 Mass. 482
Tosti v. Ayik.
tiff, who was employed as a foreman for General Motors
Corporation (G.M.), was engaging in “bargaining unit” work,
i.e€., union work, contrary to the provisions of the union’s
contract with the company. Specifically, the article accused
the plaintiff of punching vehicle repair tickets without perform-
ing the requisite repair work.’ The newspaper was distributed
to union and management personnel on June 15, 1971. The
plaintiff was suspended on the morning following the distribu-
tion, after being called to the plant manager’s office, where
mention of the article was made. On June 18, 1971, G.M.
discharged the plaintiff for allegedly punching the vehicle repair
tickets of unrepaired vehicles. :
In 1973, the plaintiff brought an action against several rep-
resentative officers and members of the union for libel and
tortious interference with an employment relationship.* The
jury returned verdicts against the union and against two of the
individual defendants, Henry Ayik and Baheege Ayik.* The
defendants appealed and this court reversed the judgments and
ordered a new trial. Tosti v. Ayik, 386 Mass. 721 (1982) (Tosti
I).
reverses the punch it’s KS. He was punching all the items on the ticket.
This sort of thing goes on constantly. We have men who work in the
Inspection Department checking these cars for defects. After writing the
defects down the foremen fix them by punching the ticket out. Now, I
understand why so many cars are shipped from the electrical hole. GM’s
mark of excellence means nothing to them. If you’re ever picked as a driver
for the electrical hole first, blow the horn, next try the brakes and good
luck!!”"
‘The plaintiff acknowledged that he performed repairs and punched repair
tickets in violation of the union’s contract but denied that he had ever
punched an item that he had not personally repaired.
*At the time the plaintiff commenced this action, a labor union, as an
unincorporated voluntary association, could not be sued in its own right.
Members of Bakery & Confectionary Workers Int'l Union, Local 458 v.
Hall Baking Co., 320 Mass. 286 (1946). However, we subsequently altered
this rule and held that unions will be considered “legal entities for the
purpose of suing or being sued.” DiLuzio v. United Elec., Radio & Mach.
Workers, Local 274, 386 Mass. 314, 314 (1982).
‘At the first trial, the parties stipulated to dismissal, without prejudice,
of all counts filed against individual defendants other than Henry Ayik,
author of the article, and Baheege Ayik, shop chairman of the union.
10a
394 Mass. 482 485
Tosti v. Ayik.
Upon retrial, the jury found for all defendants on the plain-
tiff’s claim of tortious interference with an employment re-
lationship. It further found for the defendant Baheege Ayik on
the libel claim. However, the jury returned verdicts for libel
against Henry Ayik in the amount of $5,000, and against the
union in the amount of $495,000.° Ayik and the union unsuc-
cessfully moved for judgment notwithstanding the verdicts and
for a new trial on the libel counts. Both defendants appealed
and we granted their application for direct appellate review.
On appeal, the defendants argue that (1) the subject matter
jurisdiction of the State court was preempted by Federal labor
law; (2) the judge erred in failing to require “clear and convinc-
ing evidence” of the union’s liability for Ayik’s actions; (3)
various evidentiary rulings constituted reversible errors; (4) the
plaintiff failed to prove Ayik’s malice by clear and convincr.g
evidence and therefore the defendants were entitled to direcced
verdicts; (5) the judge erred in denying their motions for judg-
ments notwithstanding the verdicts or, alternatively, for a new
trial; (6) the damage awards were inconsistent and the award
against the union was excessive; (7) interest on the awards
was erroneously computed due to the judge’s misinterpretation
of G. L. c. 231, § 6B. We affirm the judge’s rulings on all
issues, except as regards the excessive damages awarded
against the union.
1. Preemption.
The defendants contend that State courts lack subject matter
jurisdiction over the plaintiff's libel claim as a result of the
recent United States Supreme Court decision in Local 926,
Int’ | Union of Operating Eng’ rs v. Jones, 460 U.S. 669 (1983).
We disagree. In previously considering the defendants’
preemption claim, we stated that “Federal labor law preempts
State libel law to the extent that defamatory statements made
in the context of a labor dispute are actionable only if made
with knowledge of their falsity or with reckless disregard of the
‘With interest added pursuant to G. L. c. 231, § 6B, judgment was
entered against Ayik individually in the amount of $5,866.70 and against
the union in the amount of $580,803.30.
lla
486 394 Mass. 482
Tosti v. Ayik.
truth. Old Dominion Branch No. 496, Nat'l Ass'n of Letter
Carriers v. Austin, 418 U.S. 264, 273 (1974). Linn v. United
Plant Guard Workers Local 114, 383 U.S. 53, 61 (1966). In
other words, State courts may grant relief in such defamation
actions only if the defamatory statements were made with
actual malice, as defined in New York Times Co. v. Sullivan,
376 U.S. 254, 279-280 (1964).” Tosti I, supra at 723.’ The
Supreme Court’s decision in Local 926, Int'l Union of Operat-
ing Eng’rs, supra, did not change, but rather reaffirmed, this
rule. There the Court held that a cause of action against a
union for tortious interference with an employment relationship
was preempted because the claim was not “so deeply rooted
in local law” as to outweigh “the interference with the federal
labor law that prosecution of the state action would entail.”
460 U.S. 669, 683 (1983). At the same time, however, the
Court distinguished and reaffirmed its earlier holding in Linn
v. United Plant Guard Workers Local 114, supra, “that an
action for a malicious and injurious libel in the course of a
labor dispute . . . was not pre-empted since it was unprotected
conduct and since remedying injury to reputation was of only
slight concern to the national labor policy and was a matter
deeply rooted in state law.” Local 926, Int'l Union of Operating
Eng’rs, supra at 681 n.11. We therefore see no reason to
reconsider the defendants’ preemption claim and conclude that
our decision in Tosti 1, supra at 723, remains controlling.
2. Union Liabiiity.
The defendants claim that the judge erred in instructing the
jury that, in order to hold the union liable for Ayik’s article,
“the plaintiff must prove by the greater weight of the believable
evidence that either or both defendants were acting on behalf
of the local and within the scope of their responsibilities for
the local when the material in question was published.” They
contend that G. L. c. 149, § 20B, which is modeled after § 6
of the Norrs-LaGuardia Act, 29 U.S.C. § 106 (1982),
"In Tosti 1, supra, we held that “the article in question here was published
in the context of a labor dispute” and therefore “[ jury] instructions on actual
malice need [to] be given.”
12a
394 Mass. 482 487
Tosti v. Ayik.
requires proof of a union’s vicarious tort liability by clear and
convincing evidence.
General Laws c. 149, § 20B, inserted by St. 1935, c. 407,
§ 1, states: “No officer or member of any association or organi-
zation, and no association or organization, participating or
interested in a labor dispute . . . shall be held responsible or
liable in any court for the unlawful acts of individual officers,
members or agents, except upon clear proof of actual partici-
pation in, or actual authorization of, such acts, or of ratification
of such acts after actual knowledge thereof.” In Tosti /, supra
at 723-724, we noted that the article in question was “published
in the context of a labor dispute” because “[a] dispute over
supervisory personnel doing bargaining unit work is a con-
troversy concerning terms and conditions of employment.” See
G. L. c. 149, § 20C (c). We stated that “[w]Je cannot separate
the allegedly defamatory statement from the protected activity
concerning the terms and conditions of employment.” Tosti /,
supra at 724.
General Laws c. 149, § 20B, however, was intended to
govern union liability in actions arising from violent labor
disputes, such as injunction and contempt proceedings. The
Statute was originally enacted as § | of St. 1935, c. 407, “An
Act relative to injunction and contempt procedure in labor
disputes.” “While the title to an act cannot control the provi-
sions of the statute, the title may be used for the purpose of
ascertaining its proper limitation.” Commonwealth v. Graham,
388 Mass. 115, 120 (1983), and cases cited. We have noted
in the past that the enactment of c. 407 “followed a recommen-
dation of the Governor that the laws relating to injunctions in
labor disputes ‘should be liberalized and strengthened,’ and
. . . that the Norris-LaGuardia Act should be adopted ‘as a
basis for the drafting of the required state legislation.’” Simon
v. Schwachman, 301 Mass. 573, 581 (1938), quoting 1935
Senate Doc. No. 1. See Fashioncraft, Inc. v. Halpern, 313
Mass. 385, 389 (1943); Mengel v. Superior Court, 313 Mass.
238, 245 (1943).
Our interpretation of the scope of G. L. c. 149, § 20B, is
bolstered by the United States Supreme Court’s discussion of
13a
488 394 Mass. 482
Tosti v. Ayik.
the purpose of the Norris-LaGuardia Act. “[T]he simple con-
cern of Congress was that unions had been found liable for
violence and other illegal acts occurring in labor disputes which
they had never authorized or ratified and for which they should
not be held responsible. . . . The straightforward answer was
§ 6, with its requirement that when illegal acts of any individual
are charged against one of the major antagonists in a labor
dispute — whether employer or union — the evidence must
clearly prove that the individual’s acts were authorized or
ratified.” Ramsey v. UMW, 401 U.S. 302, 310 (1971). See
United Bhd. of Carpenters v. United States, 330 U.S. 395,
403 (1947).
Other jurisdictions which have enacted legislation patterned
after the Norris-LaGuardia Act have held that their analogous
statutes do not apply to cases charging unions with tort liability.
See, e.g., Nelson v. Haley, 232 Ind. 314, 318 (1953); Bucha-
nan v. International Bhd. of Teamsters, 94 Wash. 2d 508,
511 (1980). While the Connecticut cases relied upon by the
defendants do involve union tort liability, there too the alleged
torts arose in the context of a violent labor dispute. In Benoit
v. Amalgamated Local 299 United Elec. Radio & Mach. Work-
ers, 150 Conn. 266, 274-275 (1963) and United Aircraft Corp.
v. International Ass'n of Machinists, 161 Conn. 79, 87-88
(1971), cert. denied, 404 U.S. 1016 (1972), the court applied
the analogous Connecticut statute where the injuries suffered
resulted from assaults and batteries associated with union pick-
eting.
For these reasons, we conclude that the labor dispute encom-
passing the libel alleged here is beyond the intended scope of
G. L. c. 149, § 20B. We therefore affirm the judge’s ruling
regarding the standard of proof required to impose liability on
the union for publication of Ayik’s article.
3. The Judge's Evidentiary Rulings.
The defendants challenge three of the judge’s evidentiary
rulings and claim each error provides ground for reversal. First,
they contend that the judge erred in refusing to admit purported
business records of G.M. regarding the plaintiff's termination.
The defendants sought to introduce as business records, pur-
l4a
394 Mass. 482 489
Tosti v. Ayik.
suant to G. L. c. 233, § 78, four memoranda from G.M.’s
personnel files which were prepared in connection with the
company’s investigation of the plaintiff's conduct. The docu-
ments contained information from secondary sources as well
as from the personal knowledge of their authors.
Although the judge failed to disclose the basis for his exclu-
sion of the documents, we infer from his ruling that he was
not satisfied that the statutory prerequisites had been met.
Omansky v. Shain, 313 Mass. 129, 132 (1943). Because the
defendants failed to show that it was the business duty of each
of the authors to prepare such memoranda in the regular course
of business, they failed to comply with at least one of the
prerequisites to G. L. c. 233, § 78. See Wingate v. Emery Air
Freight Corp., 385 Mass. 402, 406 (1982) (“The preparer’s
hearsay sources must carry the same indicia of reliability,
arising from regularity and business motives, that bring his
own act of recording the information within the statutory excep-
tion”); Kelly v. O'Neil, 1 Mass. App. Ct. 313, 316 (1973)
(second level of hearsay inadmissible under G. L. c. 233,
§ 78).
The defendants argue that even if G.M.’s records were inad-
missible under G. L. c. 233, § 78, the judge should have ruled
them admissible as past recollections recorded. However, since
nothing in the record suggests that the defendants offered the
documents for this purpose, they may not rely on this ground
for the first time on appeal. National Granite Bank v. Tyndale,
179 Mass. 390, 393-394 (1901).
The defendants also contend that the judge erred in admitting
a statement allegedly made by the defendant Baheege Ayik in
1968, to the effect that he intended to “get” the plaintiff for
the latter’s opposition to a union strike that year. The defendants
moved in limine to exclude the statement as irrelevant and
prejudicial. The plaintiff argued that the statement was relevant
to establish a possible union motive for the alleged libel.
We have stated that, “[i]n determining whether the evidence
offered serves any valid purpose we apply the rule that it must
merely render the desired inference more probable than it would
be without the evidence.” Green v. Richmond, 369 Mass. 47,
1Sa
490 394 Mass. 482
Tosti v. Ayik.
59 (1975). In “the great majority of instances,” the offering
party is entitled to the evidence. /d. If it is possible that the
probative value of the evidence is outweighed by its prejudicial
effect, the question of admissibility is “determined in the sound
discretion of the judge.” /d. at 60.
We cannot say the judge abused his discretion in admitting
the challenged statement. While the fact that the statement was
made three years prior to the publication of the article in ques-
tion may affect the weight it should be given, remoteness in
time does not render the statement irrelevant. Sherburne v.
Meade, 303 Mass. 356, 360 (1939). See Murray v. Foster,
343 Mass. 655, 657 (1962) (whether evidence is too remote
in time for purpose offered is decision squarely within the
discretion of trial judge).
Finally, the defendants charge that the judge abused his
discretion in denying their motion for a mistrial. The defendants
moved for a mistrial after the plaintiff referred, during his
direct examination, to a separate suit he had brought against
G.M. which he subsequently settled for $6,048 in severance
pay. The defendants objected to the plaintiff's testimony as
irrelevant and prejudicial since the jury could incorrectly infer
that the settlement referred to represented an acknowledgment
by G.M. that the plaintiff was wrongfully discharged. In re-
sponse to their objection, the judge instructed the jury to dis-
regard any references to other lawsuits and, pursuant to a
stipulation of the parties, the jury were also informed that the
sum received by the plaintiff represented accrued benefits in
the form of severance pay. The judge reasonably concluded
that these curative steps defused the prejudicial effect of the
plaintiff's testimony. We are satisfied that there was no abuse
of discretion in his denial of the defendants’ motion for a
mistrial. See Riley v. Davison Constr. Co., 381 Mass. 432,
444-446 (1980) (motion for mistrial properly denied where
judge’s clarifying instructions cured juror confusion); Shea v.
D. & N. Motor Transp. Co., 316 Mass. 553, 555 (1944) (judge
“not obliged to declare a mistrial, provided he adequately
guarded against all improper effect’).
16a
394 Mass. 482 491
Tosti v. Ayik.
4. Evidence of Malice.
The defendants next claim error in the judge’s denial of their
motions for directed verdicts. They contend that the plaintiff
failed to show, by clear and convincing evidence, that the
article in question was published with actual malice and there-
fore the jury should not have been allowed to decide the libel
issue. We disagree. As a general rule, in considering a motion
for a directed verdict, “(t]he question is whether the evidence,
construed most favorably to the plaintiff, could not support a
verdict for the plaintifi.” Poirier v. Plymouth, 374 Mass. 206,
212 (1978). In defamation cases governed by the New York
Times Co. v. Sullivan standard, we are under a constitutional
obligation to determine ‘“‘whether the jury would be warranted
in concluding that malice was proved by clear and convincing
evidence.” Stone v. Essex County Newspapers, Inc., 367 Mass.
849, 870 (1975). On appeai “those portions of the record which
relate to the actual-malice determination must be independently
assessed.” Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 514 n.31 (1984). If the facts, considered in the light
most favorable to the plaintiff, were sufficient for the jury to
find clear and convincing evidence* of the defendants’ malice,
then the judge properly denied the directed verdict motions.
Before reviewing the facts before the jury, we reiterate that
“[a]ctual malice is not necessarily proved in terms of ill will
or hatred, but is proved rather by a showing that the defamatory
falsehood was published with knowledge that it was false or
reckless disregard of whether it was false.” Stone, supra at
867. For the jury to find that a publication was made in reckless
disregard of the truth, “{t]here must be sufficient evidence to
permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication.” /d., quoting
“The plaintiff claims that the clear and convincing standard of proof
should not apply to libel actions against labor unions where the New York
Times malice standard is adopted by analogy rather than constitutionally
mandated. Linn v. United Plant Guard Workers Local 114, 383 U.S. 53.
64-65 (1966). If there was error it was rendered harmless by the jury’s
verdict for the plaintiff based upon a clear and convincing standard of proof.
17a
492 394 Mass. 482
Tosti v. Ayik.
St. Amant v. Thompson, 390 U.S. 727, 731 (1968). “[T]he
test is entirely a subjective one. . . . [T]he jury must find that
such doubts were in fact entertained by the defendant, or by
the defendant’s servant or agent acting within the scope of his
employment.” Stone, supra at 868. In order to determine the
defendant’s state of mind, the jury are entitled to draw infer-
ences from the objective evidence. /d.
Based upon the evidence presented, the jury could have
found the following facts relevant to their determination of the
defendants’ malice. On June 7, 1971, the night in which the
defendant Ayik claimed to make the observations contained in
his article, he was “chasing stock” for as many as forty repair-
men. Consequently, he was away from the electrical hole area,
where both he and the plaintiff were stationed, for substantial
periods of time, including the fifteen minute period prior to
making the observations alleged in his article. Ayik testified
that after returning to his work area, he watched the plaintiff
go down a line of six cars, take repair tickets off the wind-
shields, and punch the repair tickets. He then confronted the
plaintiff, wrote down the job numbers of the cars, and informed
the plaintiff that he intended to file a grievance.
Despite the fact that his article refers to cars leaving the
electrical hole with defective horns and brakes, potential safety
hazards, Ayik conceded that he did not know how to read the
repair tickets and therefore had no idea what repairs were
actually designated on the-tickets. Nor did he claim to know
whether any of the cars with tickets punched by the plaintiff
had safety problems or improper repairs. When Ayik was asked
why the plaintiff could not have made the designated repairs
while the defendant was out of the area, he replied, “Because
I watched [the plaintiff] in a three-month period, and he was
out in that repair yard punching tickets and flagging them. . . .
And they were never repaired.” Ayik testified that during April
and May of 1971, he observed the plaintiff two or three nights
a week punching tickets on cars in the repair yard without ever
making repairs. He further testified that in writing the article, he
“wasn’t complaining about the repair,” but “only complaining
about the punch. That’s all I wanted taken away was the punch.”
18a
394 Mass. 482 493
Tosti v. Ayik.
Contrary to Ayik’s testimony, the plaintiff stated that he did
not work the night shift during April and May of 1971, the
time in which the defendant claimed to have observed him
punching tickets of unrepaired vehicles. Although he acknowl-
edged that he had performed minor repairs and punched repair
tickets in violation of the union contract, including the night
of June 7, 1971, the plaintiff testified that he never punched
an item on an unrepaired vehicle.
This evidence, if believed by the jury, was sufficient to
provide clear and convincing proof” that Ayik either published
his article based on fabricated observations of the plaintiff or,
at the least, entertained serious doubts as to the truth of his
allegations. The defendant conceded that he did not particularly
care whether the plaintiff failed to repair the vehicles. Instead,
he testified that he was motivated to write the article because
the plaintiff was performing bargaining unit work, i.e., punch-
ing repair tickets. The jury could therefore have found that
this motive led the defendant to either fabricate the other
charges or to make his accusations based on suspicions and
not facts. This conclusion would have been particularly war-
ranted if the jury found that the defendant could not have
observed the plaintiff on the job during April and May. The
defendant testified that his prior observations of the plaintiff
during these months formed the “sole” basis for his allegation
that the plaintiff performed no repairs on the night of June 7,
1971. Because the jury found that the defendant Ayik was
acting within the scope of his union responsibilities when he
wrote the article and submitted it for publication, they were
justified in imputing his state of mind to the union for the
purpose of establishing the union’s vicarious liability. Cantrell
v. Forest City Publishing Co., 419 U.S. 245, 253-254 n.6
(1974). Stone, supra at 868.
usually imposed burden of proof by a fair preponderance of the evidence,
but less than the burden of proof beyond a reasonable doubt imposed in
criminal cases.” Stone, supra at 871. The evidence must be sufficient to
convey to a “high degree of probability” that the defendant acted with
substantia! doubts about the truth of the statement. Caliahan v. Westinghouse
Broadcasting Co., 372 Mass. 582, 588 n.3 (1977).
19a
494 394 Mass. 482
Tosti v. Ayik.
For these reasons, we conclude that the jury would have
been warranted in finding that the defendants’ malice was
proved by clear and convincing evidence. Therefore the judge
properly denied the defendants’ motions for directed verdicts.
This is true regardless of whether he or we would personally
have been convinced by the same evidence. Stone, supra at
870 n.11./d. at 873 (Quirico, J., concurring in part and dissent-
ing in part).
5. Motion for a New Trial.
The defendants contend that their motions for judgments
notwithstanding the verdicts or, in the alternative, for a new
trial should have been granted. When acting on a defendant’s
motion for judgment notwithstanding the verdict, the judge’s
task, “taking into account all the evidence in its aspect most
favorable to the plaintiff, [is] to determine whether, without
weighing the credibility of the witnesses or otherwise consid-
ering the weight of the evidence, the jury reasonably could
return a verdict for the plaintiff.” Rubel v. Hayden, Harding
& Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983). Con-
flicting evidence alone does not justify judgment notwithstand-
ing the verdict. O’Shaughnessy v. Besse, 7 Mass. App. Ct.
727, 729 (1979). “[I]t is of no avail for the defendant to argue
that there was some or even much evidence which would have
warranted a contrary finding by the jury.” Curtiss-Wright Corp.
v. Edel-Brown Tool & Die Co., 381 Mass. 1, 4 (1980), quoting
Chase v. Roy, 363 Mass. 402, 407 (1973). The court may not
substitute its judgment of the facts for that of the jury.
O’ Shaughnessy, supra at 728. These well-settled rules regard-
ing the respective roles of judge and jury do not change in
detamation cases. It remains the case that “[w]hen the tes-
timony of a witness is not believed, the trier of fact may simply
disregard it.” Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 512 (1984). Even if conflicting evidence was
introduced from which the jury could have found that the
charges against the plaintiff were either true or not made with
actual malice, the jury were free to believe or disbelieve the
evidence presented. We have already concluded that the jury,
crediting the evidence most favorable to the plaintiff, would
| 20a
394 Mass. 482 495
Tosti v. Ayik.
hav» been warranted in reaching their verdicts. Consequently,
there was no error in the judge’s denial of the defendants’
motions for judgments notwithstanding the verdicts.
As to the defendants’ alternative motions for a new trial, it
is clear from our summary of the evidence, above, that these
motions (except as to the amount of damages; see discussion,
infra) rested in the sound discretion of the judge, and con-
sequently there was no error in his denial of the motions.
6. Damages.
The defendants further assert that the libel verdicts are incon-
sistent, in light of: (1) the verdicts for them on the plaintiff's
count for intentional interference with an employment relation-
ship and (2) the disparity in the $5,000 verdict against Ayik
and the $495,000 verdict against the union. By failing to raise
this objection prior to the dismissal of the jury, the defendants
deprived the judge of the opportunity to correct any possible
errors in the jury’s deliberations. Consequently, they waived
‘their right to attack the verdicts as inconsistent on appeal.
Bradley v. Fessenden, 349 Mass. 429, 429-430 (1965). Feaver
v. Railway Express Agency, Inc., 324 Mass. 165, 169 (1949).
There is merit, however, in the defendants’ contention that
the verdict against the union is excessive. We agree that the
$495 ,000 award is clearly excessive and “may impermissibly
chill the exercise of First Amendment rights by promoting
apprehensive self-censorship.” Stone, supra at 860. In defama-
tion cases, “|b]ecause of constitutional considerations, and the
potential difficulties in assessing fair compensation . . . both
trial and appellate judges have a special duty of vigilance in
charging juries and reviewing verdicts to see that damages are
no more than compensatory.” /d. at 861. Our Federal labor
policy similarly demands heightened scrutiny in reviewing libel
awards against unions. “[I]n view of the propensity of juries
to award excessive damages for defamation, the availability
of libel actions may pose a threat to the stability of labor
unions.” Linn v. United Plant Guard Workers Local, 114, 383
U.S. 53, 64 (1966). See Old Dominion Branch No. 496, Nat'l
Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 291 (1974)
(Douglas, J., concurring) (“community attitudes toward unioni-
zation” influence libel awards against unions).
2la
496 394 Mass. 482
Tosti v. Ayik.
Both the Legislature and this court have prohibited awards
of punitive damages in libel actions, even upon proof of actual
malice. Stone, supra at 860-861. G. L. c. 231, § 93. The
plaintiff is entitled only to fair compensation for his actual
damages, including his mental suffering and harm to his repu-
tation, and for any special damages he has suffered which have
been pleaded and proved. Stone, supra at 860. Because First
Amendment rights are at stake, we are not slow to pronounce
a verdict excessive in defamation cases, Stone, supra at 861,
even though by doing so we must necessarily substitute our
assessment of reasonable damages for that of the jury. See
Curtis Publishing Co. v. Butts, 388 U.S. 130, 160 (1967)
(plurality opinion) (constitutional guarantee of freedom of
speech and press is served by judicial control over excessive
verdicts).
In this case, the judge instructed the jury that if they decided
the plaintiff lost his employment as a result of the defamation,
they could hold the defendants “responsible for any damages
resulting from the loss.”” We assume from the size of the verdict
that the jury probably found that the defendants caused the
plaintiff's discharge by their libellous publication. However,
we are not convinced that the evidence presented by the plaintiff
regarding the consequences of his discharge was sufficient to
justify a $495,000 award.
The testimony regarding the plaintiff's employment with
G.M. established the following facts. In 1971, as a foreman
of drivers of unlicensed cars, he earned approximately $11,800
a year in base pay. From late August through late December
of each year, the period in which production began on new
automobile models, the plaintiff commonly worked substantial
overtime hours and earned up to double or triple his base pay.
However, overtime was not guaranteed and the plaintiff did
not know how his overtime pay was calculated. At G.M. the
plaintiff also received pension, stock, and medical benefits
although he did not present any evidence as to their value.
After the plaintiff was discharged, at the age of forty-four, he
received $6,000 in severance pay. There was additional tes-
timony by G.M. personnel that, by 1980, an employee in the
22a
394 Mass. 482 497
Tosti v. Ayik.
plaintiff's former position was earning some $27,600 a year
in base pay.
The plaintiff also testified as to his yearly earnings from the
time of his discharge in 1971 until the second trial in 1983.
During those years he was employed on temporary jobs as a
laborer, construction worker, and carpenter with yearly earn-
ings ranging from a low of $2,300 to a high of $18,700. His
total earnings during this period were approximately $124,000
compared to the estimated $224,000" he would have earned
in base pay as a G.M. foreman.
There was evidence that the plaintiff and his family suffered
financial hardship in the years after his discharge. However,
where substantial damages are awarded as compensation for
earnings allegedly lost as a result of defamation, courts will
seek proof that a plaintiff's inability to find comparable work
was actually caused by a defendant’s tortious act. For example,
in Lawlor v. Gallagher Presidents’ Report, Inc., 394 F. Supp.
721 (S.D.N.Y. 1975), the plaintiff, a former corporate officer,
claimed that he was unable to obtain employment in his field
as a result of defamatory statements concerning the cir-
cumstances of his resignation. In his mid-forties at the time
of the libel, he sought damages of $95,000 per year until he
reached retirement age. New York law, like our own, limits
a plaintiff's recovery in defamation actions to compensatory
damages that are proved by competent evidence. /d. at 733.
The court denied the plaintiff's claim for lost earnings be-
cause he failed to prove that “the publication of the falsehood
was a material element or substantial cause of his inability
to get a job.” /d. at 735. Similarly, in Benassi v. Georgia-
Pacific, 62 Or. App. 698 (1983), modified, 63 Or. App.
672 (1983), the plaintiff alleged that as a result of his employ-
er’s slanderous remarks regarding his discharge, he was pre-
vented from securing other employment and ultimately was
‘We recognize that with overtime pay and employment benefits, the
plaintiff could potentially have received significantly higher yearly earnings
from G.M. However, on the basis of the record presented, we are unable
to competently estimate the additional income he would have received from
these sources.
—
23a
498 394 Mass. 482
Tosti v. Ayik.
forced to accept a position at a lower rate of pay. The court
held there was insufficient proof of special damages because
the plaintiff failed to show that he “would have obtained [em-
ployment] but for the currency of the slander.” 62 Or. App.
at 705. Because the plaintiff did not claim that any potential
employers were aware of the defamatory statements, the court
concluded that “it would be mere speculation to permit the
jury to infer that the plaintiff was unable to obtain a new job
. . . because of the defamation.” 62 Or. App. at 709. In Law-
rence Vv. Jewell Cos., 53 Wis. 2d 656 (1972), the plaintiff also
contended that he was unable to find steady employment as a
result of defamatory statements made by his former employer.
Noting that “‘[t]he record is devoid of any direct evidence that
a slanderous staternent was made to a prospective employer,”
id. at 660, that court concluded that the jury’s compensatory
award of $25,000 was excessive and reduced it to $12,000.
Id. at 661-662.
While in this case the jury could conclude from the evidence
that the plaintiff lost employment due to the defendants’ article,
that finding does not necessarily entitle the plaintiff to all future
wages he would have otherwise earned from G.M. In Hanson
v. Innis, 211 Mass. 301 (1912), we considered the damages
due a foreman who had been discharged as a result of union
demands. There we held that the plaintiff was entitled to recover
his lost wages “past and future,” id. at 306, because he produced
evidence showing that his discharge and his inability to obtain
other work were caused by the unlawful acts of the defendants.
Id. at 305. In this case, the record presents no comparable
proof that the plaintiff’s failure to obtain full-time employment
from 1971 through 1982 was due to the defendants’ tortious
acts. Cf. Faulk v. Aware, Inc., 19 A.D.2d 464, 470 (N.Y.
1963) (potential employers testified they would not hire plain-
tiff as result of defamation).
In defamation cases, other causally related consequences,
such as harm to reputation and mental suffering, are compens-
able where the awards are supported by competent evidence.
Stone, supra at 860-861. Here, however, the evidence estab-
lishing such damages is sparse indeed. The record contains
24a
394 Mass. 482 499
Tosti v. Ayik.
testimony by the plaintiff's wife that the plaintiff was “shook
up” on the day of his discharge and lay down when he returned
home, which was very unusual for him to do. There was no
suggestion that the plaintiff received any medical or psychiatric
treatment as a result of the libel.
Given the evidence the plaintiff submitted as to proof of his
damages, we conclude that the jury’s award of $495 ,000 against
the union was clearly excessive and impermissibly reflected
prejudicial or punitive considerations.'' Accordingly, we shall
remand the case to the Superior Court where, upon a motion
for a new trial under Mass. R. Civ. P. 59 (a), 365 Mass. 827
(1974), filed by the defendant union within a reasonable time
after the rescript herein, the trial judge shall reconsider solely
the issue of the excessive damages. Before a new trial is
granted"? the plaintiff shall, of course, under rule 59 (a), be
given an opportunity to remit such sum as the judge considers
excessive. D’Annolfo v. Stoneham Hous. Auth., 375 Mass.
650, 661 (1978). Because First Amendment rights are at stake,
the court must in this proceeding, and any subsequent proceed-
ings which may follow in this case, bring close scrutiny to the
damages assessed. See Stone, supra at 860.
7. Interest.
Finally, the defendants challenge the judge’s computation
of interest on the verdicts at a rate of 12% per annum from
June 13, 1973, the date of the commencement of the action,
to March 23, 1983, the date the judgments were entered. The
judge awarded interest retroactively pursuant to G. L. c. 231,
§ 6B, which applies a 12% rate of interest “to all actions in
which damages are assessed on or after the effective date of
'' We note that during the course of their deliberation, the jury specifically
inquired of the judge whether they could find the union liable for defamation
“whether or not either defendant be liable of any charge.”
'? Any new trial herein will be confined to the issue of damages. Rule
59 has no specific limitation as to the issues available in such a retrial but
the statutory predecessor to the rule (see G. L. c. 231, § 128, repealed by
St. 1973, c. 1114, § 205), pursuant to what we think was sound policy,
' limited a new trial granted for excessive damages to that issue solely.
D’ Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 662 (1978).
25a
500 394 Mass. 482
Tosti v. Ayik.
this act.” St. 1982, c. 183, § 4.'° The 1982 act became effective
on July 1, 1982; damages were assessed against the defendants
on March 23, 1983. Cf. Patry v. Liberty Mobilehome Sales,
Inc., ante 270, 273 (1985) (where trial judge assessed plaintiff’ s
damages in 1981, 12% interest rate did not apply).
Relying upon Porter v. Clerk of the Superior Court, 368
Mass. 116, 116 (1975), the defendants contend that G. L.
c. 231, § 6B, was not intended to be fully retroactive in appli-
cation. However, in the Porter case, the issue was whether
St. 1974, c. 224, § 1, amending G. L. c. 231, § 6B, was to
be given retroactive effect. The 1974 amendment “contained
no provision comparable to § 4 of St. 1982, c. 183” and there-
fore Porter “is inapposite” when interpreting the statute as
most recently amended. Mirageas v. Massachusetts Bay
Transp. Auth., 391 Mass. 815, 821 n.9 (1984). We therefore
see no error in the judge’s retroactive application of G. L.
c. 231, § 6B.
8. Conclusion.
In sum, we conclude that (1) State court subject matter
jurisdiction over the plaintiff’s libel claim was not preempted
by Federal law; (2) the jury were properly instructed as to the
standard of proof to apply in determining the union’s potential
liability for its agent’s actions; (3) the judge properly refused
to admit G.M. documents as business records under G. L.
c. 233, § 78, and properly denied the defendants’ motion in
limine and motion for a mistrial; (4) the defendants’ malice
was established by clear and convincing evidence; (5) the judge
made no error in denying the defendants’ motions for judgments
notwithstanding the verdicts or (aside from the excessive dam-
ages) for a new trial; and (6) the judge correctly awarded
interest pursuant to G. L. c. 231, § 6B.
'‘General Laws c. 231, § 6B, as amended through St. 1982, c. 183, § 2,
states: “In any action in which a verdict is rendered or a finding made or
an order for judgment made for pecuniary damages for personal injuries to
the plaintiff or for consequential damages, or for damage to property, there
shall be added by the clerk of the court to the amount of damages interest
thereon at the rate of twelve per cent per annum from the date of commence-
ment of the action even though such interest brings the amount of the verdict
or finding beyond the maximum liability imposed by law.”
26a
394 Mass. 482 501
Tosti v. Ayik.
The judgment against the individual defendant is affirmed.
However, because the jury’s damage award against the union
was excessive, we remand the case to the Superior Court where,
upon an appropriate motion by the defendant union, an order
for remittitur is to be entered in an amount to be determined
by the trial judge. If the opportunity for remittitur is declined
by the plaintiff, a new trial is to be ordered in the case against
the union, confined to the issue of damages.
So ordered.
38
27a
Appendix C
6 Mass. 721 721
Tosti o. Ayik.
La
AUGUSTINO TostTI1 vs. BAHEEGE Ay1k & another. '
Middlesex. March 3, 1982. — July 9, 1982.
Present: Hennessey, C.J., Apnams, Novan, & O’Connon, JJ.
bor, Federal preemption. Libel and Slander. Jurisdiction, Labor case.
Constitutional Law, Federal preemption. Words, “Labor dispute.”
Allegedly libelous statements, published in a local union newspaper, to
the effect that the plaintiff, a foreman in an automobile manufactur-
ing plant, had engaged in bargaining unit work, contrary to a collec-
tive bargaining contract then in force, and that he had punched repair
tickets without the requisite work being done, were, in the circum-
stances, made in the context of a “labor dispute,” within the contem-
plation of 29 U.S.C. § 152(9) (1976), so that the plaintiff's action for
libel, based on the statements, was governed by Federal labor law and
relief could be granted by a State court only on proof that the state-
ments were made with actual malice, as defined in New York Times
Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). [723-725]
A defendant's claim that an action for libel was preempted by Federal
labor law raised a question of subject matter jurisdiction, which could
properly be considered for the first time on appeal. [725-726]
A claim by a foreman against members of a labor union alleging tortious
interference with his employment, based upon libelous statements in a
local union newspaper which resulted in his discharge, was not pre-
empted by Federal labor law, so that if the plaintiff prevailed on the
separate claim for libel he couid prevail on the claim for tortious inter-
ference if successful in proving that his discharge was due to such un-
protected union activity. [726-729]
Tort. Writ in the Superior Court dated August 6, 1973.
The action was tried before Good, J.
The Supreme Judicial Court granted a request for direct
appellate review.
! The other defendant is Henry Ayik. Both defendants were sued individ-
ually and as officers and members of the United Auto Workers, Local 422.
28a
722 386 Mass. 721
Tosti v. Ayik.
Michael P. Angelini (Vincent F. O'Rourke, Jr., with
him) for the defendants.
Robert L. Bouley (James W. Luby & Karen M. Thursby,
with him) for the plaintiff.
No.an, J. This action arises out of the publication by the
defendants of an article in a local union newspaper. The
article, which appears in the margin,* made two intertwin-
ing allegations about the plaintiff. One was that he was
engaged in bargaining unit work contrary to the contract
then in force between the employer, General Motors, and
the union, United Auto Workers, Local 422. The other was
that he was punching repair tickets without the requisite
work having been done.? The newspaper was distributed
to both union and management personnel. On the morning
following distribution, the plaintiff was called to the plant
manager’s office, where mention of the article was madc.
Two days later the plaintiff was fired.
The defendant Baheege Ayik was shop chairman of the
local union at all times material to this action. The defend-
ant Henry Ayik, who wrote the article based on his witness-
ing the purported events described therein, was a union
member at all times pertinent to this action.
The plaintiff brought an action claiming that he was
libelled by the article and that the defendants tortiously in-
terfered with his employment by publishing the article. A
*“On Monday, June 7th, [1971,] at 11:34 P.M. Cus Tosti foreman in
the electrical hole, was working on job #603677, a green 4 door Pontiac,
T37. Pete Hanningson (rank unknown) was standing guard next to him.
This is how Gus repairs cars. He has an inspection punch, # K2 and if he
reverses the punch it’s K5. He was punching all the items on the ticket.
This sort of thing goes on constantly. We have men who work in the In-
spection Department checking these cars for defects. After writing the
defects down the foremen fix them by punching the ticket out. Now, I
understand why so many cars are shipped from the electrical hole. GM’s
mark of excellence means nothing to them. If you're ever picked as a
driver for the electrical hole first, blow the horn, next try the brakes and
good luck!!”
?Both the defendants and the plaintiff subscribe to these two possible
constructions of the article.
29a
386 Mass. 721 723°
Tosti vo. Ayik.
jury found for the plaintiff, and the trial judge denied mo-
tions for a new trial and judgment notwithstanding the ver-
dict. The defendants appealed and this court granted their
application for direct appellate review. For reasons which
will appear below, we are ordering that a new trial be held
on both the libel claims and the tortious interference claim.
1. Preemption of the libel claim. Federal labor law pre-
empts State libel law to the extent that defamatory state-
ments made in the context of a labor dispute are actionable
only if made with knowledge of their falsity or with reckless
disregard of the truth. Old Dominion Branch No. 496,
Nat'l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 273
(1974). Linn v. Plant Guard Workers Local 114, 383 U.S.
53, 61 (1966). In other words, State courts may grant relief
in such defamation actions only if the defamatory statements
were made with actual malice, as defined in New York
Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).
The question as to whether instructions on actual malice
need be given in this case turns, then, on whether the alleg-
edly defamatory article was published in the context of a
labor dispute. The term “labor dispute” includes “any con-
troversy concerning terms, tenure or conditions of employ-
ment, or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing, or
seeking to arrange terms or conditions of employment, re-
gardless of whether the disputants stand in the proximate
relation of employer and employee.” 29 U.S.C. § 152(9)
(1976). We note that “[r]arely have courts found concerted
union activity to fall outside this broad definition. Where
the union acts for some arguably job-reiated reason and not
out of pure social or political concerns, a ‘labor dispute’ ex-
ists.” Hasbrouck v. Sheet Metal Workers Local 232, 586
F.2d 691, 694 n.3 (9th Cir. 1978). The term “labor dispute”
should be broadly and liberally construed. United Elec.
Cual Cos. v. Rice, 80 F.2d 1, 5 (7th Cir. 1935), cert. denied,
297 U.S. 714 (1936).
We hold that the article in question here was published in
the context of a labor dispute. There were, arguably, two
30a
724 386 Mass. 721
Tosti v. Ayik.
reasons why the article was published. One was to call at-
tention to a supervisory employee doing bargaining unit
work, to the harm of union members. The other was to in-
jure the reputation of the plaintiff by alleging that he claimed
to have done repair work that he knew had not been done.
Evidence adduced at trial was that the former was an im-
portant concern of the union. A dispute over supervisory
personnel doing bargaining unit work is a controversy con-
cerning terms and conditions of employment. Cf. Aladdin
Indus., Inc., 22N.L.R.B. 1195, 1216 & n.11 (1940) (dispute
involving discharge or demotion of supervisor who is objec-
tionable to employees is a labor dispute). We cannot sepa-
rate the allegedly defamatory statement from the protected
activity concerning the terms and conditions of employ-
ment. Whether the Federal labor law “partial pre-emption
of state libel remedies is applicable obviously cannot depend
on some abstract notion of what constitutes a ‘labor dispute’ ;
rather, application of [the actual malice standard] must
turn on whether the defamatory publication is made in a
context where the policies of the federal labor laws leading
to protection for freedom of speech are significantly impli-
cated.” Old Dominion Branch No. 496, Nat'l Ass’n of Let-
ter Carriers v. Austin, supra at 279. Those policies were
summed up by the Supreme Court in Linn v. Plant Guard
Workers Local 114, 383 U.S. 53, 58 (1966): “Labor disputes
are ordinarily heated affairs; the language that is common-
place there might well be deemed actionable per se in some
state jurisdictions. Indeed, [labor disputes] are frequently
characterized by bitter and extreme charges, countercharges,
unfounded rumors, vituperations, personal accusations,
misrepresentations and distortions. Both labor and manage-
ment often speak bluntly and recklessly, embellishing their
respective positions with imprecatory language.” Such use
of language was approved by Congress. Old Dominion
Branch No. 496, Nat'l Ass’n of Letter Carriers v. Austin,
supra at 272. To protect this freewheeling use of language,
the United States Supreme Court mandated that the New
York Times malice standard be pleaded and proved by plain-
3la
386 Mass. 721 725
Tosti v. Ayik.
tiffs in cases alleging defamation in the context of a labor
dispute. Linn v. Plant Guard Workers Local 114, supra at
64-65.
The plaintiff, responding to this argument, maintains
that, as this issue was not raised at trial, the defendants are
precluded from raising it here. See Royal Indem. Co. v.
Blakely, 372 Mass. 86, 88 (1977). Further, the plaintiff
argues that, since the defendants requested instructions that
did not contain the New York Times standard, and these re-
quests for jury instructions were granted, they should not be
allowed to raise this error on appeal. Cf. Korb v. Albany
Carpet Cleaning Co., 301 Mass. 317, 318 (1938).
The United States Supreme Court has made it clear that,
because the policy evidenced by the Federal labor laws is so
important, a court only has “jurisdiction to apply state
remedies if the complainant pleads and proves that the state-
ments were made with malice and injured him.” Linn v.
Plant Guard Workers Local 114, supra at 55. The judge’s
instructions in this case were not a mere error of law. Rather,
Congress, in passing the F ederal labor laws, “deprived the
States of the power to act,” id. at 59, in a defamation case
arising from a labor dispute absent the correct application
of the New York Times standard. Subject matter jurisdic-
tion may be raised for the first time on appeal, as it “cannot
be conferred by consent, conduct or waiver.” Litton Busi-
ness Syss., Inc. v. Commissioner of Revenue, 383 Mass. 619,
622 (1981). See Allard v. Estes, 292 Mass. 187, 196 (1935).
Thus, the judge’s charge, lacking as it did an instruction
that for the plaintiff to prevail on the defamation counts he
would have to prove actual malice, constituted reversible
error which requires a new trial.‘
‘We note that the “sine qua non of recovery for defamation in a labor
dispute . . . is the existence of falsehood.” Old Dominion Branch No.
496, Nat’ Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 283 (1974). In
this case, therefore, there can be no recovery for defamation for a state-
ment which was true.
32a
726 386 Mass. 721
Tosti o. Ayik.
Our holding that the plaintiff may recover in a State court
only if he proves that the defendants published their state-
ments knowing the defamatory matter to be false, or with
reckless disregard as to its truth or falsity, negates any neces-
sity to discuss whether the judge’s charge as to conditional
privilege was correct. The defendants claim that the state-
ments published in the union newspaper were, even if
defamatory, privileged. A conditional privilege, however,
is lost if abused. One manner of such abuse is publication
with knowledge of falsity or with reckless disregard of the
truth. Restatement (Second) of Torts § 600 (1977). See
Vigoda v. Barton, 348 Mass. 478, 485 (1965); J.R. Nolan,
Tort Law § 101 (1979). Since that is the same standard as
must be satisfied for liability to arise in this case, it follows
that if “actual malice” is proved, any conditional privilege is
thereby proven lost. Wright v. Haas, 586 P.2d 1093, 1097
(Okla. 1978).
2. Preemption of the tortious interference claim. The
defendants argue that the plaintiff’s claim of tortious inter- -
ference with employment is preempted by Federal labor
law. Although labor law preemption is a difficult field, a
careful analysis of Federal law leads to the conclusion that
we should hold that in this case Federal labor law does not
preempt the plaintiff’s cause of action for tortious interfer-
ence with an employment relationship if the jury finds that
a libel made with actual malice was the basis of such inter-
ference.
“The question whether federal law ‘preempts’ state action,
largely one of statutory construction, cannot be reduced to
general formulas. In evaluating patterns of statutory inter-
action, the Supreme Court has declared generally that wheth-
er challenged state action has been pre-empted turns on
whether or not it ‘stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
Congress.’ Since congressional purposes can be either sub-
stantive or jurisdictional, a state action may be struck down
as an invalid interference with the federal design either be-
cause it conflicts with the actual operation of a federal pro-
33a
386 Mass. 721 727
Tosti ». Ayik.
gram, or because, whatever its substantive impact, it in-
trudes upon a field that Congress has validly reserved to the
federal sphere.” L. Tribe, American Constitutional Law
§ 6-23, at 377 (1978).
In determining whether Federal law preempts State law,
there are three factors to be considered: first, the presence of
an overriding State interest; second, whether the underlying
conduct (the alleged libel) is protected under the National
Labor Relations Act (NLRA); and third, the risk that the
State cause of action would interfere with the effective ad-
ministration of national labor policy. Linn v. Plant Guard
Workers Local 114, 383 U.S. 53, 61-63 (1966) .5
-The United States Supreme Court has indicated that in
most circumstances State substantive law should prevail in
cases of tortious conduct and in cases of State unemploy-
ment benefits. See Farmer v. Carpenters Local 25, 430
U.S. 290 (1977); New York Tel. Co. v. New York State
Dep't of Labor, 440 U.S. 519 (1979). From a reading of
these decisions, we conclude that the preemption doctrine
should not be applied if the matter subject to State law does
not affect the national labor policies of the NLRA. See,
e.g., Sears, Roebuck & Co. v. San Diego County Dist.
Council of Carpenters, 436 U.S. 180, 198 (1978). See also
Attorney Gen. v. Travelers Ins. Co. , 385 Mass. 598, 610-611
& nn. 20-21 (1982); Note, Labor Law — Federal Preemp-
tion — The Aftermath of Sears, 27 Wayne L. Rev. 313
(1980).
The intentional circulation of defamatory materials in the
context of a legitimate labor dispute is not protected activity.
See Farmer v. Carpenters Local 25, 430 U.S. 290, 298
(1977); Linn v. Plant Guard Workers Local 114, 383 U.S.
5 Tribe restates the tests of Federal preemption as follows: (1) whether
State power conflicts with the power Congress has exercised in the field; -
(2) whether State power conflicts with that which Congress might have
exercised, so called “dormant” power to act in a certain area; (3) whether
Congress has legislatively preserved to the Federal government the power
to act in a certain area. L. Tribe, American Constitutional Law § 6-23
(1978).
34a
728 386 Mass. 721
Tosti vo. Ayik.
53, 61 (1966); Dazzo v. Local 259, UAW, 448 F.Supp. 799,
801-802 (E.D. N.Y. 1978); Davenport v. Terry, 134 N.]J.
Super. 88 (1975). In Linn v. Plant Guard Workers Local
114, supra, an employee filed a claim against the union for
libel. The libel was published in the context of an organiza-
tion campaign by the company’s employees. Despite the
fact that the libel arose in the course of a labor dispute, the
Court did not preclude State action but limited “the availa-
bility of state remedies for libel to those instances in which
the complainant can show that the defamatory statements
were circulated with malice and caused him damage.” Id.
at 64-65. In International Union, UAW v. Russell, 356 U.S.
634 (1958), the Supreme Court allowed a plaintiff to recover
for tortious interference with employment where the com-
plaint was based on unprotected activity (violence). A con-
trary result is not required by Local 207, International Ass'n
of Bridge, Structural & Ornamental Iron Workers Union v.
Perko, 373 U.S. 701 (1963). In Perko, the union did not
employ any unprotected means in its labor dispute. In
Farmer v. Carpenters Local 25, 430 U.S. 290, 300 n.9
(1977), the Supreme Court ruled that “[u]nder these cir-
cumstances, concurrent state-court jurisdiction would have
impaired significantly the functioning of the federal sys-
tem.” Since the defendants’ conduct in the present case
may not have been a protected means, the plaintiff's com-
plaint that the union interfered with his employment by the
publication of defamatory material is not preempted. See
International Union, UAW v. Russell, 356 U.S. 634 (1958);
6 Federal Regulation of Employment Service § 44:45, at 48-
50 (1980), and cases cited.
The plaintiff’s State tort claim, if based on libel made
with actual malice, does not affect any national labor policy.
“There [is] little risk [here] that the state cause of action
would interfere with the effective administration of national
labor policy.” Farmer v. Carpenters Local 25, 430 U.S.
290, 298 (1977). “[I]n the absence of compelling congres-
sional direction, we [should] not infer that Congress [has]
deprived the States of the power to act.” New York Tel. Co.
35a
386 Mass. 721 729
Tosti o. Ayik.
v. New York State Dep't of Labor, 440 U.S. 519, 540 (1979),
quoting from San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236, 244 (1959). Our State tort law does not have
a greater impact on national labor policy than the New York
State law granting unemployment benefits to strikers. See
New York Tel. Co. v. New York State Dep’t of Labor, supra.
Thus, Federal law does not preempt the plaintiff’s claim in
these circumstances.
Finally, the plaintiff’s claim is “a function of the particu-
larly abusive manner in which the [interference with em-
ployment] is accomplished . . . rather than a function of the
actual .. . [interference] itself.” Farmer v. Carpenters
Local 25, supra at 305. “If the [plaintiff’s] common-law
rights of action against a union tortfeasor are to be cut off,
that would in effect grant to unions a substantial immunity
from the consequences of [the intentional circulation of
defamatory material], such as [may have been] employed
during the [labor dispute] in the present case.” Interna-
tional Union, UAW v. Russell, 356 U.S. 634, 645 (1958).
“(T]he labor movement has grown up and must assume
ordinary responsibilities” (Linn v. Plant Guard Workers
Local 114, 383 U.S. 53, 63 [1966]; see DiLuzio v. Electrical
Radio & Mach. Workers Local 274, ante 314, 318 [1982]),
and, therefore, in the absence of a clear command by Con-
gress or the Supreme Court of the United States, we con-
clude that our tort law is not preempted.
In order, however, to ensure that the instant claim does
not interfere with national labor policy, we make the fol-
lowing observation. To prevail on his tortious interference
with employment claim, the plaintiff must both prevail on
his libel claim, see part 1, supra, and convince the trier of
fact that his discharge was due to such unprotected activity.°
In conclusion, we reverse the judgments and order a new
trial on both the libel and the tortious interference with em-
ployment claims.
So ordered.
*If the plaintiff prevails on the tortious interference claim, it follows
that no other privilege was available to the defendants. See supra at 726.
36a
Appendix D
COMMONWEALTH OF MASSACHUSETTS.
/ SUPREME JUDICIAL COURT FOR THE COMMONWEALTH,
AT BosTon, June 10 1987.
IN THE CASE No. SJC-4298
AUGUSTINO TOSTI
VS.
HENRY AYIK & another
pending in the Superior Court Department of the Trial
Court for the County of__ Middlesex No. 335102
ORDERED, that the following entry be made in the docket;
VIZ. —
The judgment is affirmed.
By THE Court,
/s/_ Frederick J. Quinlan, Clerk.
June 10, 1987
See opinion on file.
37a
Appendix E
SUPREME JUDICIAL CoURT For THE COMMONWEALTH
Room 1412 CourT HOUSE
BOSTON, MASSACHUSETTS 02108
(617) 725-8055
JEAN M. KENNETT FREDERICK J. QUINLAN
Clerk Assistant Clerk
July 2, 1987
Louis S. Scerra, Jr., Esq.
Stephanie Pax Flanigan, Esq.
Gary C. Greenberg, P.C.
Goldstein and Manello
265 Franklin Street
Boston, MA 02110
Dear Attorneys: Re: AUGUSTINO TOSTI vs. HENRY
AYIK & another
Supreme Judicial Court No. SJC-4298
Your Petition for Rehearing in the above captioned appeal
has been considered by the court and is denied.
Very truly yours,
Dolores G. Dupre
for Jean M. Kennett, Clerk
c.c.: John J. C. Herlihy, Esq.
Karen M. Thursby, Esq.
Herlihy and O’Brien
133 Federal Street
Boston, MA 02110
38a
Appendix F
Supreme Judicial Court for the Commonwealth
OFFICE OF THE CLERK, 1412 Court House, BOSTON 02108, (617) 725-8055
No. SJC-4298 8/7/87 __19__
In re AUGUSTINO TOSTI vs. HENRY AYIK & another
VS.
MOTION for Stay of Enforcement of Judgment ALLOWED.
Jean M. Kennett, Clerk
39a
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT
No. 335102
Augustino Tosti
VS
Francis J. Lynch, et als Indiv. and as
officers of Local 422, United Auto Workers
ORDER
The execution entered in the above captioned case on July 20,
1987 is superseded; the judgment after rescript entered on July 10,
1987 is vacated and the original is to be returned forthwith to this
Court.
By the Court
(Hennessey, C.J.)
Supreme Judicial Court
/s/ William P. Johnston
Attest: William P. Johnston
1987, August 7 First Assistant Clerk
per telephone instructions
40a
Appendix G
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 335102
AUGUSTINO TOSTI
VS.
HENRY AYIK & BAHEEGE AYIK
Individually and as Representatives
of Local 422 — United Auto Workers
MEMORANDUM and ORDER
This case came on for hearing on the defendants’ motion
for new trial on the issue of damages. See Tosti v. Ayik, 394
Mass. 482 (1985) which was remanded to the Superior Court
for consideration of a remittitur or a new trial. The trial judge,
Pierce, J., has resigned from the Court. Where he was in a
better position than I to evaluate the credibility and weight of
the evidence, he was appointed a special master to make recom-
mendations as to a remittitur and report to the Court. He has
done so and a copy of his report is attached in which he
recommends a remittitur to the amount of Two Hundred Sev-
enty-five Thousand Dollars ($275,000).
In consideration of the foregoing and the Supreme Judicial
Court’s observations concerning the damage issue, it is ordered
that there be a new trial on the issue of damages unless within
thirty days from the entry of this order the defendants file an
acceptance of the damages as remitted to the amount of Two
4la
Hundred Seventy-five Thousand Dollars ($275,000). If the
remittitur is not accepted within that time, the case shall stand
for trial on the issue of damages.
/s/ Thomas R. Morse, Jr.
Thomas R. Morse, Jr.
Justice of the Superior Court
Dated: December 11, 1985
Entered: December 13, 1985
42a
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT
No. 335102
AUGUSTINO TOSTI,
Plaintiff
Vv
HENRY AYIK & BAHEEGE AYIK,
Individually and as Representatives
of Local 422 — United Auto Workers,
Defendants
i i i
MEMORANDUM IN SUPPORT OF RECOMMENDED
REMITTITUR
Having reviewed the transcripts of the trial, the damage
portions of the briefs filed by counsel in the Supreme Judicial
Court. and the Supreme Judicial Court decision in this action,
I recommend that the jury’s award of $495,000 against the
Union be remitted to the sum of $275,000. The basis of this
recommendation is the following:
1. That absent this incident plaintiff would have remained
at General Motors until retirement. The basis of this finding
is (a) that plaintiff was approximately 44 years old on the date
of his termination; (b) that plaintiff was employed at General
Motors for 23 years prior to this incident; (c) that plaintiff had
a good employment record at General Motors; and (d) that
43a
plaintiff worked his way up from a hourly wage position to
the management position of foreman during his tenure at Gen-
eral Motors.
2. That while no evidence was presented that the libel was
communicated to other potential employers, no comparable
work in terms of pay was seemingly available for a man of
plaintiff's age, experience and skill within a reasonable area
of his residence.
3. That plaintiff has made good faith and continuing efforts
to find comparable work since the date of his termination.
4. That in view of defendants’ conduct, they should not get
the benefit of the absence of available comparable work for a
person of plaintiff's age and skill.
5. That while no evidence was presented regarding the value
of the benefits which plaintiff lost, General Motors did provide,
at its expense, plaintiff with the following benefits: (a) Blue
Cross/Blue Shield; (b) vision, hearing and dental expenses;
and (c) life insurance.
6. That plaintiff was likewise entitled to a pension from
General Motors either upon a voluntary retirement after 30
years of service or following a mandatory retirement at age 70.
7. That the quality and standard of plaintiff’s life was sub-
stantially affected by defendants’ conduct. This finding is based
on the following: that plaintiff lost his job, the benefits incident
thereto, was forced to sell his home, and was unable to find
comparable work.
8. That plaintiff lost $100,000 of the income he would have
earned in base pay as a General Motors foreman as a result
of defendants’ conduct.
While I recognize that the sum of $275,000 cannot be sub-
stantiated with precision, the law does not require precision.
It requires only that the damages be compensatory and not
excessive. Moreover, the very nature of the factors which a
jury may consider — reputation, standing in the community,
44a
personal humiliation, mental anguish and suffering, damage
to employment, standard of life — weigh against precise cal-
culations. In this case, all of the things which plaintiff lost,
and as to which he failed to present evidence of value, had a
value. Even without evidence of value, it is clear from the
record that the loss of these things, other than pay, substantially
affected the quality and standard of plaintiff's life. On this
record, there could be no doubt as to that. Furthermore, while
the evidence of harm to reputation and mental suffering was
“sparse”, some evidence did exist.
Accordingly, given all of the circumstances which a jury
could have considered and the realization that two juries re-
turned verdicts against the defendants in excess of $400,000,
I conclude that a remittitur to the sum of $275,000 is appro-
priate and just.
Respectfully submitted,
/s/ Rudolph F. Pierce
Rudolph F. Pierce, Special Master
LeBoeuf, Lamb, Leiby & MacRae
168 Milk Street
Boston, Massachusetts 02109
(617) 451-1385
Dated: October 10, 1985
45a
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 335102
AUGUSTINO TOSTI
VS.
HENRY AYIK & BAHEEGE AYIK
Individually and as Representatives
of Local 422 — United Auto Workers
CORRECTED MEMORANDUM and ORDER
f
The order of the Court (p. 112) inadvertently misstated that
there shall be a new trial on the issue of damages unless the
defendants accept a remittitur to the amount of two hundred
and seventy-five thousand dollars ($275,000). The correct
order is as follows: _
It is ordered that there be a new trial on the issue of damages
unless within thirty days of the entry of this corrected memoran-
dum and order the plaintiff accepts a remittitur to the amount
of two hundred and seventy-five thousand dollars ($275 ,000).
/s/ Thomas R. Morse, Jr.
Thomas R. Morse, Jr.
Justice of the Superior Court
Dated: January 8, 1986
Entered: January 21, 1986
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.