Opposition Brief — United Auto Workers, Local 422 v. Tosti

~ Bupreme Court, U.S.

“BILLED

NO. 87-546

NOV 4 1987

IN THE

F. SPANIOL, JR.

SUPREME COURT OF THE UNITED Sassrsg © srs

OCTOBER TERM, 1987

UNITED AUTO WORKERS, LOCAL 422,

PETITIONER

V.

AUGUSTINO TOSTI,

RESPONDENT

ON PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME

JUDICAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

JOHN J. C. HERLIHY*

KAREN M. THURSBY

HERLIHY AND O'BRIEN

133 FEDERAL STREET

BOSTON, MA 02110

(617)426-6100

*COUNSEL OF RECORD

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED ii

STATUTORY PROVISION... 1

STATEMENT OF THE CASE... 1

SUMMARY OF ARGUMENT... 24

ARGUMENT... 26

I. The Massachusetts State

Court's jurisdiction over

plaintiff's defamation claim

is not pre-empted by Federal

Labor Law... 26

II. The evidence presented

established with clear and

convincing clarity that Henry

Ayik, a Union official, either

knew that the libelous state-

ments made in the article were

false, or acted with reckless

disregard of whether the state-

ments were true or false... 30

III. The damages assessed

after remittitur are no more

than compensatory and clearly

not in excess of the actual

damages sustained by Tosti... 31

CONCLUSION... 38

TABLE OF AUTHORITIES CITED

CASES

Linn v. Plant Guard Workers,

of America, Local 114

363 U.8. SS CLoe@e)s a 3p 40,29,57

Local 926, International

Union of Operating Engineers

v. Jones, 4600 U.S. 669 (1983).. 29

Old Dominion Branch No. 496

National Association of Letter

Carriers v. Austin, 418 U.S.264

Pek v2 Pen ry se 3

Tosti v. Ayik 386 Mass. 721

PE wort ick eee eee 3,26,29

Tosti v. Ayik, 394 Mass. 482,

(1905) os cnens a0 Veeueeeee 3,4,26,29

STATUTES

29 U.S.C. 158(b)(1)(B)..1,4,5,6,28

————

STATUTORY PROVISION

The respondent disputes the Local's

Citation of Title 29 U.S.C. sec.158

(b)(1)(B) on the grounds that (1) the

applicability of this statute has never

been presented or argued to any court at

any time during the 14 year history of

this action in the Massachusetts court

system, and (2) it does not apply to the

facts of this case as there is simply

nothing in the record on which to base a

finding that Augustino Tosti was an

employer representative for purposes of

collective bargaining or the adjustment

of grievances.

STATEMENT OF THE CASE

Initially, it is the respondent's

position that due to the many editorial

comments, deviations from the facts as

proven and found by the jury and the

Local's obvious attempts to interject

irrelevant considerations including

arguments never presented to the state

court and issues waived below into its

Petition for Writ of Certiorari, it

would be appropriate for this Court to

deny the Local's Petition pursuant to

Supreme Court Rule 21.5.

For example, the Local's Petition

makes no attempt to establish the

appropriateness of Certiorari in light

of the considerations set forth in

Supreme Court Rule 17. The reason for

this is that none of these

considerations apply to this case. The

Massachusetts Supreme Judicial Court has

scrupulously followed the decisions of

this Court in every respect during the

three appeals presented to them over the

fourteen year pendency of this case.

nan nec heteey wat cto

Indeed, in order to follow the mandate

of Linn v. United Plant Guard Workers of

America, Local 114, 383 U.S. 53, 64-66

(1966) that plaintiffs in libel actions

arising out of labor disputes only

recover upon proof of actual malice, a

new trial was ordered in 1982. Tosti v.

Ayik, 386 Mass. 721, 725 (1982) (Pet.

App. A) (hereinafter Tosti I.) In

compliance with this Court's mandate in

Linn, Supra, and Old Dominion Branch No.

496, National Association of Letter

Carriers v. Austin, 418 U.S. 264, 287

n.17 (1974), that jury awards be

scrupulously examined in order to

protect the stability of labor unions

and small employers, a remittitur was

ordered in 1985 which resulted in the

amount of damages found by the jury

being cut almost in half. Tosti v.

Ayik, 394 Mass. 482, 499 (1985) (Pet.

App. B) (hereinafter Tosti II).

In addition, the Local improperly

attempts to interject arguments never

previously raised before any trial or

appellate court in this matter. The

Local has never raised or attempted to

prove the applicability of 29 U.S.C.

sec.158(b)(1)(B) to the facts of this

case. Indeed, the reason for this is

that it simply does not apply. In

footnote 16 of its Petition, the

defendant for the first time attempts to

argue that Tosti was an employer

representative involved in the

adjustment of union grievances. There

was absolutely no evidence ever

presented which would remotely lend

itself to such a finding. The only

description of Tosti's duties was that

he was a foreman of unlicensed drivers.

There was no evidence that he was in any

way designated, involved or had any

responsibilities as an employer

representative in the negotiation of

collective bargaining agreements or the

adjustment of grievances. Consequently,

this is not a matter which could have

been presented to the National Labor

Relations Board (hereinafter NLRB) as a

violation of 29 U.S.C. sec.158 (b)(1)(B).

This leads to another argument the

Local attempts to present for the first

time to this Court, namely, the argument

that the plaintiff should not be allowed

to recover damages for loss of income in

the state court libel action because the

NLRB could have awarded this type of

Gamage if a violation of 29 U.S.C.

sec.158(b)(1)(B) had been found. Not

only was this partial pre-emption

argument never raised before, but also,

as stated above, the applicability of 29

U.S.C. sec.158(b)(1)(B) was never

argued, and further, there is no

evidence to indicate this statute

applied to Tosti.

Moreover, the Local improperly

includes in its Petition irrelevant,

inaccurate and inflammatory statements

regarding the issuance by the Supreme

Judicial Court of a stay of the

execution pending consideration of this

Petition by this Court, as well as

intimations of the "imminent demise" of

the Local and threats of bankruptcy.

Since the issue of a stay of execution

is not before this Court, these

inflammatory and misleading statements

regarding the stay and bankruptcy are

einai

totally improper. Moreover, the Local's

characterizations of the Supreme

Judicial Court's motivation in initially

issuing the stay are totally without

foundation. Indeed, the Supreme

Judicial Court has the matter of the

continuation of the stay under

consideration at this very time.

Due to the Local's complete failure

to present any basis under Supreme Court

Rule 17 for this Court to exercise it's

discretion to grant this Petition, as

well as its many attempts to abuse the

appellate process by presenting

arguments for the first time in this

case's 14 year history to this Court,

the respondent feels it would be

appropriate for this Court to deny the

Local's Petition solely on the basis of

Supreme Court Rule 21.5.

Nothwithstanding the above, it is

the respondent's position that all

issues were correctly decided by the

Supreme Judicial Court and there is

consequently no basis for this Court to

exercise its discretion in favor of

granting this Petition.

Due to the obvious bias,

inaccuracies and omissions in the

Local's statement of the facts, the

respondent is compelled to present the

following statement of facts based upon

the evidence presented at the March,

1983 jury trial.

This lawsuit arises out of the

publication of an article in the United

Auto Workers, Local 422 newspaper "The

Conveyor". The article alleged that the

plaintiff, Augustino Tosti, a management

employee, had been performing bargaining

unit work in violation of the collective

bargaining agreement. In addition and

most importantly, the article alleged

that the plaintiff was sending cars out

into the marketplace with serious safety

defects.

The incident related in this

article, written by the co-defendant,

Henry Ayik, a member and official of

Local 422, allegedly occurred on June 7,

1971. At that time, the plaintiff was

the foreman of unlicensed drivers.

Henry Ayik wasS a stock chaser. Both

were working in the "electrical hole",

Cars with minor electrical malfunctions

such as windshield wipers, tail lights

Or blowers, would be sent to the

electrical hole for minor repairs before

shipping. Henry Ayik would be sent to

other parts of the plant by the

TN

repairmen to "chase" the parts necessary

to complete the repairs. It was Tosti's

job to see to it that the repaired cars

were driven out of the electrical hole

for shipment.

On June 7, 1971, a car was sent to

the electrical hole. The ticket on this

car indicated that the heater blower was

in need of repair. Tosti testified that

he replaced the fuse, punched the ticket

to indicate that the blower had been

repaired and sent the car out for

shipment. Although performing the

repairs and punching the tickets was

union work, there was testimony that

this was commonly done by foremen such

as Tosti and condoned by higher

management.

Tosti testified that Henry Ayik

watched him through the windshield of

the car as the plaintiff made the

necessary repairs on this vehicle.

Henry Ayik testified that on June

7, 1971, as he was sitting on his mule

(the motorized cart he used to chase

stock) he watched Tosti go down a line

of six cars, take the repair tickets off

the windshield, take a punch out of his

pocket and punch the repair ticket.

Henry also testified that he confronted

the plaintiff, took down the job numbers

of the cars and informed the plaintiff

he intended to file a grievance. Henry

admitted he did not know how to read

these tickets, and therefore had no idea

what repairs were designated on the

tickets.

Henry further testified that for

the 15 minutes prior to making these

observations of the plaintiff on June

LE TE AL

ete ee

7th, he was chasing stock in another

part of the plant and had no opportunity

to view the plaintiff in the electrical

hole. When asked if the plaintiff had

the opportunity to make the repairs on

the vehicles during this time, Henry

stated that he didn't believe the

plaintiff knew how to make the repairs.

When asked why the repairs on the

vehicles the plaintiff punched couldn't

have been done by either the plaintiff

or anyone else during the 15 minutes

Henry was chasing stock prior to

observing the plaintiff punching the

tickets, Henry stated that they were

not, and that the sole basis for this

belief was his observations of the

plaintiff over the three prior months,

and not his actual observations of the

night of June 7, 1971.

Henry testified that during the

months of April and May, he observed the

plaintiff two or three nights a week

during the second (night) shift punching

tickets on cars in the outside repair

yard. Henry was sure all of these

observations were at night during the

second shift.

Tosti testified conclusively that

he worked the day shift during the

months Henry allegedly observed him

Punching without repairing. He

unequivocally testified that he never

punched an item on a ticket that he did

not himself repair.

Henry Ayik testified that although

the article makes reference to brakes

and horns and he considers these items

to be safety items on motor vehicles, he

had absolutely no knowledge on June Va

1971 whether any of the cars he

allegedly saw the plaintiff punching had

any safety problems or any improper

repairs at all.

In fact, Henry Ayik admitted that

he was not at all concerned with whether

the part of the article accusing Tosti

of approving for shipment cars with

unrepaired safety defects was true or

not. All he cared about was protecting

union jobs:

A.

(Henry Ayik): Sir, I wasn't complaining

about the repair. I was

only complaining about the

punch. That's all I

wanted taken away was the

punch.

Q.

(plaintiff's

counsel): You weren't concerned

that repairs were done

or net done.

A. Correct. I wanted the

punch taken away.

Q. And that was your only

concern.

A. Yes, Sir.

1963 Tr. 3-36.

Prior to the publication of this

article, Tosti had a 23 year unblemished

employment history with General Motors.

The article which is the subject of this

law suit was published on June 15,

1971. On this day, Tosti worked the

second shift, reporting for work at 3:30

p.m. and returning home approximately

2:00 a.m. On June 16, 1971, the day

after this article was distributed to

both union and management personnel,

Tosti was summoned to the Framingham

General Motors plant manager's office at

9:00 or 10:00 a.m.; his regular shift

was not to begin until 3:30 that

afternoon.

At this meeting, reference was made

to the Conveyor article, and the

plaintiff was suspended until further

notice. Two days later, on June 18,

1971, the plaintiff was again summoned

to his superior's office where he was

fired. The plaintiff testified that the

June 15, 1971 Conveyor article written

by the defendant, Henry Ayik, and

published by the Local was the only

matter discussed in connection with the

plaintiff's suspension and subsequent

termination.

In June of 1971, when this libelous

article was published by the Local, Gus

Tosti was a 44 year old man with 12

years of public education and some

additional undefined schooling in the

Armed Services. He had been born and

raised in the Framingham area and had

established his own family in the same

area. He had worked at the General

Motors Assembly Plant in Framingham

practically all his adult life, since he

was 21 years old.

In 1971, Gus Tosti's family

consisted of his wife, Lillian, and

daughters Cynthia, then 20 years old,

Roberta 19, and Lisa 7. He had been

with the same employer for 23 years,

made a decent base salary of $11,776.64,

enjoyed the security of a pension plan,

full medical insurance, life insurance

and stock purchase program. Due to his

unblemished employment record, Tosti had

every reason to believe his job and

benefits were secure.

In addition, although overtime was

not guaranteed, in his 23 years with

General Motors overtime had generally

been available during the months of

September, October, November and

December, when General Motors would

begin production of the next year's

models.

At this time, the plaintiff's

financial condition was such that he,

his wife, daughters Roberta, Lisa and

grandson Paul, lived in an eight room

colonial house in Holliston which the

plaintiff owned, subject to a

traditional bank mortgage, 6 miles from

the General Motors plant. Previous to

owning this home, he and his family had

lived in another house he had been able

to purchase. The family had also been

able to send their eldest daughter,

Cynthia, to nursing school.

At trial Mrs. Tosti testified that

prior to the publication of this

libelous article, the Tosti's enjoyed a

happy life, socialized with their many

friends, were proud of owning their own

home and their ability to provide their

eldest daughter with the opportunity of

formal post high school education which

they did not have. After the article

was published she testified everything

changed. The family had to sell their

home and borrow money from her parents

to survive. They had no social life, no

friends. There was just no comparison

to their former lifestyle.

On June 15, 1971, this defamatory

article was disseminated throughout the

entire Framingham plant, to people Gus

Tosti had worked with for 23 years. Due

to the General Motors management's»

actions which the evidence revealed were

undertaken solely on the basis of

reading this article, the plaintiff was

never able to return to work to explain

Or dispute the article to his

co-workers, associates and friends.

Upon being suspended, the plaintiff

was very down but still hopeful his 23

year history with the company would

prevail over the false accusations.

When he was terminated by General Motors

two days later, the evidence established

that Tosti was visibly shaken, and very

depressed. His wife testified that he

couldn't believe it, was all shook up,

couldn't talk and was close to tears.

After being fired by General

Motors, the plaintiff made various

attempts to get reinstated at General

Motors, even approaching the Local for

help. In what could be viewed by the

fact finder as an attempt to mislead

him, Local officials assured him he

would be back to work in a couple of

weeks.

When he was unsuccessful in getting

reinstated with General Motors, Gus

Tosti tried for approximately 6 years to

find comparable steady employment in the

Framingham area but there was just no

such work available for a man in his mid

forties with very focused experience and

only a high school education. The work

he was able to get consisted of

temporary construction jobs initially

out of the laborer's union hall in

Framingham during the balance of 1971

through 1972, earning him gross annual

income in 1972 of $11,113.35, and then

with a realty trust doing condominium

maintenance repairs and odd jobs in 1973

and 1974, earning a gross annual income

of $6,189.60 and $13,909.50

respectively. In 1975, the plaintiff

was able to earn only $2,414.80 and he

was forced to sell the family home.

After 1975, the plaintiff was never

again able to afford to own a home for

himself and his family. Since that time

they have moved from one rented house to

another. In 1976 the plaintiff was able

to find temporary employment with

Cumberland Farms while that company was

constructing a bakery in Westboro,

Massachusetts. This job lasted 15 to 18

months and through it he earned

$12,660.05 in 1976 and $2,342.25 in

1977. When this job was over, Tosti was

unable to find any work in the

Framingham area. He went on

unemployment for a period of time and

finally decided to move his family to

Cape Cod, Massachusetts where he thought

work would be available. In 1978 he was

able to find work with Mid-Cape

Development as a carpenter's helper, and

earned a gross income of $6,938.00. He

continued with Mid-Cape Development

through part of 1979 earning $9,561.25

with them in that year. Some time in

1979 he found temporary work as a full

carpenter with The Green Company

building condominiums in Harwich. He

earned an additional $4,189.50 in 1979

as a full carpenter. The job with the

Green Company continued through 1980 and

1981 and the piaintiff earned $17,688.89

and $18,738.04, respectively in those

years. Tosti continued to work for the

Green Company until construction was

finished and all workers were laid off.

He received unemployment benefits of

$2,964.00 until he found his current

position as a carpenter with the company

of Marney and Canteine. His total

earned income for 1982 amounted to

$8,262.38. The plaintiff, at age 56 in

1983, was earning $7.00 per hour as a

carpenter, compared to the $6.00 per

hour plus benefits he earned at General

Motors twelve years prior as a

management employee.

SUMMARY OF ARGUMENT

i The Massachusetts state court's

jurisdiction over the plaintiff's state

law libel claim is not totally or

partially pre-empted by federal labor

law because the state court meticulously

followed this Court's mandates regarding

the plaintiff's standard of proof in

such cases, and further because the

libelous portions of the incident

article involved no activity which could

arguably have been brought before the

NLRB as an unfair labor practice.

II. Where the author of the libelous

article admitted that he did not know

whether the libelous portions of his

article were true or not and further

testified that he did not care whether

these portions of the article were true

or false there is sufficient evidence to

establish clearly and convincingly that

he published the article either knowing

the libelous protions were false, or

with reckless disregard for whether they

were true or false.

III. The evidence of special and general

damages was more than adequate to

support the amount of damages after

assessment of a remittitur which cut the

jury's verdict almost in half.

ARGUMENT

THE MASSACHUSETTS STATE COURT'S

JURISDICTION OVER THE PLAINTIFF'S

DEFAMATION CLAIM IS NOT PRE-EMPTED

BY FEDERAL LABOR LAW.

4

oo

The respondent defers to the

Supreme Judicial Court's analysis of

Federal pre-emption law as set forth in

Tosti I and Tosti II (Pet. App. B and

Pet. App. C). The Local attempts to

avoid the clear rationale of Linn,

Supra, and its progeny by ignoring the

libelous charges contained in the

article, specifically, that the

plaintiff was allowing cars with serious

safety defects to be shipped from the

General Motors plant and released into

the marketplace, and focusing instead on

the portions of the article which

detailed the plaintiff's unauthorized

use of a labor employee punch in

violation of the collective bargaining

agreement. Whether or not the plaintiff

violated the collective bargaining

agreement was and is totally irrelevant

to the plaintiff's libel action. In

fact, the plaintiff admitted using the

repair punch in violation of the

agreement. If Henry Ayik had confined

his article to this allegation, Tosti

would not have spent the last 14 years

litigating this action in the

Massachusetts courts. But the article

did not stop with complaining about

unauthorized punching of repair

tickets. It went on to falsely accuse

the plaintiff of punching as repaired

cars with serious safety defects and

authorizing the shipment of these

allegedly dangerous cars to dealers. It

was this part of the article that was

false, malicious, libelous and which

caused Tosti to lose his job of 23

years. This is a clear claim of libel,

not an unfair labor practice in

violation of the NLRA. As set forth

infra, although there was evidence that

Tosti waS a management employee, there

was absolutely no evidence that he was

an employer representative with

responsibility for adjusting

grievances. He consequently was not in

a position to present a violation of 29

U.S.C. sec.158(b)(1)(B) to the NLRB.

The central element of Tosti's

state law libel claim is the falsity of

the allegations made in the article and

the publisher's knowledge or reckless

disregard of the falsity of these

allegations. The Local attempts to

bring this case within the rationale of

Local 926, International Union of

Operating Engineers v. Jones, 460 U.S.

669 (1983) despite the reaffirmance of

the Linn case in footnote 11 of Jones,

by attempting to convince this Court

that the central element of the

plaintiff's libel claim is whether the

libelous article caused Tosti's

discharge. Obviously however, this is

but one element of the plaintiff's

damages. The Local would still have

libel judgment against it if Tosti had

failed in this element of his proof of

damages (which he did not).

Consequently, as the Supreme

Judicial Court concluded in Tosti I and

Tosti II, this case falls squarely

within the rationale of Linn, supra, and

the Massachusetts courts properly

exercised jurisdiction over the

plaintiff's libel claims.

- 29 -

iii ie

Il. THE LZVIDENCE PRESENTED ESTABLISHED

WITH CLEAR AND CONVINCING CLARITY

THAT HENRY AYIK, A UNION OFFICIAL,

EITHER KNEW THAT THE LIBELOUS

STATEMENTS MADE IN THE ARTICLE

WERE FALSE, OR ACTED WITH RECKLESS

DISREGARD OF WHETHER THE

STATEMENTS WERE TRUE OR

FALSE.

The Local's contention that the

evidence presented was "fatally

deficient" to show either that Henry

Ayik knew of the falsity of the

statements made in the article, or acted

in reckless disregard of the truth or

falisty of the statements, can only be

based upon its selective recollection of

the evidence, especially the testimony

of Henry Ayik himself.

As set forth supra at 10-14, not

only was Henry not in a position to make

the continuous observations of the

plaintiff on June 7, 1971, which would

have been required to substantiate the

- 30 -

allegation that Tosti had not made the

necessary safety repairs, Ayik himself

admitted that he simply did not care

whether this part of his article, the

part that caused Gus Tosti to lose his

job of 23 years, was true or not! This

evidence clearly and convincingly

warrants the conclusion that Henry Ayik

either knew these allegations were false

Or at the very least submitted the

article for publication in reckless

disregard of whether these serious

allegations were true or false.

III. THE DAMAGES ASSESSED AFTER

REMITTITUR ARE NO MORE THAN

COMPENSATORY AND CLEARLY NOT IN

EXCESS OF THE ACTUAL DAMAGES

SUSTAINED BY TOSTI.

Initially, although the defendant

continues to allege without any

foundation in fact that the two juries

which heard this case held some kind of

animus towards labor unions, it is

difficult to understand how this remains

at all relevant when what is being

evaluated now is the amount of damages

set by the special master, the former

trial judge who saw the witnesses and

heard all the evidence first hand.

Surely the Local does not seek to imply

that the special master was motivated by

anti-union prejudice.

The Local limits its arguments

regarding the amount of the damages to

the $175,000.00 which represents damages

for loss of the plaintiff's employment

security and benefits and the general

damages resulting from the malicious

defamation, which include the general

impairment of Tosti's reputation and

standing in the community, his

consequent mental anguish and suffering,

personal humiliation and alienation of

associates.

In this case, the Local circulated

this false, defamatory article

throughout the entire General Motors

plant in Framingham where Gus Tosti had

worked for 23 out of his 44 years as of

June, 1971. The Local disseminated the

article indiscriminently among labor and

management employees. There was

evidence that there were over 3,000

union employees alone. The defamatory

meaning of the article is clear on its

face to anyone who reads it, in this

case, the great number of people the

plaintiff had worked with for 23 years.

The shear number of people to whom the

defamation was communicated, people who

knew the plaintiff, at least in his

capacity as foreman at the plant for

many years, is evidence of the harm done

to the plaintiff's reputation.

Moreover, the General Motors'

management's swift action undertaken

solely as a result of this false article

not only prevented Tosti from defending

himself against the accusations, it also

lent credence to the untrue allegations,

further damaging his reputation.

In addition to the initial shock

and depression the plaintiff suffered,

also compensable is the mental anguish

and suffering the plaintiff personally

endured over the ensuing years as a

result of the publication of these lies,

including that occasioned as a result of

watching his family suffer.

The plaintiff, at age 44, was

deprived of his career of 23 years as

well as the security, both present and

future, he had built up for himself and

his family over those years. He was

forced to uproot his family from an area

they had spent their entire lives,

relocate and spend years training and

apprenticing in order to teach himself

an entirely new occupation as a

Carpenter. After.12 years he had

finally begun to earn a regular base

Salary within the range of that he was

earning at the time he was fired.

However, it is common knowledge that

costs dramatically rose during this

cime, and, 12 years later, he still had

no present or future benefits.

The financial hardship on the

plaintiff's family is also readily

apparent. Not only were they forced to

give up their home, they had to sell

their personal belongings and borrow

from relatives to survive. In addition,

the plaintiff's youngest daughter was an

impressionable seven years old when her

father was fired. She has grown up

watching her father fight to vindicate

his name and to regain his self respect.

Rather than giving undue emphasis

to the amount of the two jury awards

that have not been allowed to stand for

varying reasons, the plaintiff

interprets the special master's

recommendation as merely acknowledging

that two separate juries watched and

listened to the plaintiff's evidence and

determined he had suffered substantial

as opposed to nominal damages. This the

plaintiff feels is entirely

appropriate. (In this context it is

| eae

worthy of note that the defendant had

never, at trial or on appeal, raised any

issue with the trial judge's

instructions as they relate to the

assessment of damages).

Although it is true that both this

Court and the Supreme Judicial Court

have the duty to carefully review the

amount of libel verdicts against unions,

it must be remembered that this Court

has also emphasized that "malicious

libel enjoys no constitutional

protection in any context. After all,

the labor movement has grown up and must

assume ordinary responsibilities."

Linn, Supra, at 63. The jury has found

the Local responsible for publishing a

malicious libel. It is time for the

Local to now assume its responsibility

and pay the plaintiff his just damages.

CONCLUSION

Based upon the foregoing, the

respondent respectfully requests this

Court deny the Local's Petition for Writ

of Certiorari.

RESPECTFULLY SUBMITTED,

The Respondent,

Augustino Tosti

By His Counsel

John J. C. Herlihy*

Karen M. Thursby

Herlihy and O'Brien

133 Federal Street

Boston, MA 02110

(617)426-6100

*Counsel of Record

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