Petition for Writ of Certiorari — Dunn v. Air Line Pilots Ass'n

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991507 MAR! 5 200

No. OFFICE OF TE caeak

In The |

Supreme Court of the United States

LARRY DUNN, TOM DUCKWORTH, et al.,

Petitioners,

VS.

AIR LINE PILOTS ASSOCIATION,

HARRY DUFFY, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Puiturp A. HuBBART Mytes J. TRALINS

Counsel of Record One Biscayne Tower,

One Biscayne Tower Suite 2930

Suite 2930 2 South Biscayne

2 South Biscayne Boulevard

Boulevard Miami, Florida 33131

Miami, Florida 33131 (305) 374-3300

(305) 374-0650

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does federal labor law, under the doctrine of pre-

emption, entitle a labor union and its leaders to a sum-

mary judgment in a state libel action brought against

them for printing and distributing blacklists to potential

employers on a world-wide basis accusing its union

members and others of being trade union “scabs” — solely

because these workers refused to honor an illegal strike

unilaterally called by union leaders without taking a

union membership vote as expressly required by the

union constitution?

2. Does federal labor law, under the doctrine of

preemption, entitle a labor union and its leaders to a

summary judgment in a state libel action brought against

them for printing and distributing blacklists to potential

employers on a world-wide basis accusing its union

members of being trade union “scabs” — solely because

these workers ended a strike, which they had previously

honored, and returned to work only after their local

union president directed them to do so?

LIST OF PARTIES

There are a large number of parties to this action.

Due to space limitations, their names do not appear in the

caption of the case appearing on the preceding cover

page. Accordingly, a list of all such parties to the proceed-

ing in the court below [the Eleventh Circuit Court of

Appeals] whose judgment is the subject of this petition is

contained in Appendix D.

TABLE OF CONTENTS

Page

SUPE UR SEY WUMMIUW EERE 65 cccccscanesdaccosacenes i

RE ee eee eT eee eee eee ee Tee ii

SS Bae eS er ire iii

EE WP EPG soko ks seen de teesecceewases Vv

TABLE OF AUTHORITIES ..............2220esceee. vi

EY I od occ bcos sede daasncatsvancere 1

i cli echne seks acneakhentnadeendavadas 1

STATUTORY PROVISIONS INVOLVED............. 2

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

A. Proceedings in District Court and Eleventh Cir-

cuit Court of Appeals ..........-..-.--+++++5:. 2

1. Basis for Federal Jurisdiction............... 2

2. The mature Of Che action .............cceees 2

3. Disposition of libel claim.................. 4

B. Statement of the Evidence in the Record....... 5

1. IAM sympathy strike and its immediate after-

Aer er err rT rere rere 6

2. Eastern ALPA union meeting and immediate

EES eee re eee ee er ee 7

3. World-wide publication of “scab” blacklist.. 9

4. Division of Eastern ALPA union membership

over IAM sympathy strike ................. 10

TABLE OF CONTENTS - Continued

REASONS FOR GRANTING THE PETITION ...... F

A. FEDERAL LABOR LAW DOES NOT ENTITLE A

LABOR UNION AND ITS LEADERS TO A SUM-

MARY JUDGMENT IN A STATE LIBEL ACTION

BROUGHT AGAINST THEM FOR PUBLISHING

50,000 BLACKLISTS TO POTENTIAL

EMPLOYERS ON A WORLD-WIDE BASIS

ACCUSING ITS UNION MEMBERS AND

OTHERS OF BEING TRADE UNION “SCABS” -

WHERE, AS HERE, THESE WORKERS

REFUSED TO HONOR AN ILLEGAL STRIKE

UNILATERALLY CALLED BY UNION

LEADERS WITHOUT TAKING A UNION MEM-

BERSHIP VOTE AS EXPRESSLY REQUIRED BY

THE UNION CONSTITUTION.................

1. Importance of the issue decided ...........

2. Prior Supreme Court precedent............

3. ALPA’s IAM Sympathy Strike was illegal ..

4. “Actual Malice” standard satisfied .........

FEDERAL LABOR LAW DOES NOT ENTITLE A

LABOR UNION AND ITS LEADERS TO A SUM-

MARY JUDGMENT IN A STATE LIBEL ACTION

BROUGHT AGAINST THEM FOR PUBLISHING

50,000 BLACKLISTS TO POTENTIAL

EMPLOYERS ON A WORLD-WIDE BASIS

ACCUSING ITS UNION MEMBERS OF BEING

TRADE UNION “SCABS” - WHERE, AS HERE,

THESE UNION MEMBERS HONORED A PREVI-

OUSLY-CALLED ILLEGAL UNION STRIKE,

AND LATER RETURNED TO WORK ONLY

WHEN THEIR LOCAL UNION PRESIDENT

DIRECTED THEM TO DO SO 2... .cccsccccess

CRU EE +k bn dx sch ds hus vbbiaeavaecae paeekens

TABLE OF CONTENTS - Continued

INDEX TO APPENDICES

APPENDIX

Page

11th Circuit opinion.......... App. 1

USDC Order Granting Summary

Judgment ........---.e+seeeee App. 61

Denial of Rehearing - 11th

CU: vc kaaaksnvngusaiasso sence App. 92

List of all parties ..........-- App. 94

ALPA Union Charges against

Jack Bavis ...........--ssee: App. 101

ALPA’s Point-to-Point publica-

Mia cc kien ween cenneayseerees App. 105

ALPA’s Blacklist .......------ App. 107

Excerpts from ALPA’s 11th Cir.

PPE Pere App. 169

ALPA’s “Black Sunday” letter.. App. 174

Petitioners’ Third Amended

Complaint ........---+++++++: App. 180

Excerpts from Petitioners’ 11th

Cir. Reply Brief......-....--- App. 222

TABLE OF AUTHORITIES

Page

CASES

Dow v. United Brotherhood of Carpenters and

Joiners of America, 1 F.3d 56, 58*(1st Cir. 1993) .... 23

Eastman Kodak Co. v. Image Tech. Serv., Inc., 504

US. Gi, 46m. OF Ciek isn scecsesar eee 5

Harte-Hanks Communications, Inc. v. Con-

naugmton, 491 U.S. G57 CIBC) coc cscncscrscncscens 27

Linn v. United Plant Guard Workers of America,

Local 334, S33 US. Sd CHGee 6c keesaccassuceus 18, 20

New York Times Co. v. Sullivan, 376 U.S. 254

(29GE) oon sc cacscccssdceeuaseeuseneseeee 18

Old Dominien Branch No. 496, Nat’l Ass’n of

Letter Carriers v. Austin, 418 U.S. 264 (1974)...19, 20

St. Amant v. Thompson, 390 U.S. 727 (1968)......... 25

Vandenburg v. Newsweek, Inc., 441 F.2d 378 (5th

Che. OFS) 6. oossscnednicennducun eens eee 27

STATUTE AND RULES -

The Railway Labor Act, 45 U.S.C. §§ 151 et seq....... 2

28 USL. & T2068 OF) 5 osenkccisieyencenneseeeeeee 1

28 USA.. § 18h ics ocnnccctuscunese eee 2

28 USA... & ROGRMD 60s scans ddnseasssceragees eee 2

Rute 10(c), US. Sept. Bs. «os vseecuseeseueeeune 12

Rele 13.1, 133, US. Sa Be ss 6s cc ew deceunaeee 1

REG Cie. SOR. «0 o0ncvavvnneaunaeeees ane 1

TABLE OF AUTHORITIES - Continued

Page

I Se eg oO oe aa eae 1

Federal Rules of Civil Procedure, Rule 54(b)......... 5

OTHERS .

ALPA Administrative Manual, Part 4, Section D..... 23

Ast. 1, Sec. 25, ALFA COmettetiom ....ccsccccccscces 21

Art. IV, Sec. 2B, ALPA Constitution................. 21

Webster’s Third International Dictionary 2022

SNES oS Sevdeuhsocesnes dueuabaveneshapenueaswian 15

OPINIONS BELOW

The 2-1 majority opinion of the Eleventh Circuit

Court of Appeals (Tjoflat, J. dissenting) [App. A, 1-59.]} is

reported at 193 F.3d 1185 (11th Cir. 1999). The opinion of

the United States District Court for the Southern District

of Florida [App. B, 62-91] is unreported.

JURISDICTION

On October 25, 1999, the Eleventh Circuit Court of

Appeals entered its judgment in this case. [App. A, 60].

On November 12, 1999, within 21 days after the entry of

this judgment, the petitioners filed a timely motion for

rehearing en banc [see 11th Cir.R. 35-2] — which under

11th Cir.R. 35-6 is also “treated as a petition for rehearing

before the original panel.” On December 17, 1999, the

Eleventh Circuit Court of Appeals denied this motion

both as a motion for rehearing and as a motion for

rehearing en banc. [App. C, 92-93]. Within 90 days there-

after, this timely petition for a writ of certiorari was filed

in this Court [Rule 13.1, 13.3, U.S. Sup.Ct. Rules], seeking

review of the Eleventh Circuit Court of Appeals’ judg-

ment pursuant to 28 U.S.C. § 1254(1).

1 The symbol “App.” refers to the appendix in this cause.

STATUTORY PROVISIONS INVOLVED

The Railway Labor Act, 45 U.S.C. §§ 151 et seq. is

generally involved in this case.

STATEMENT OF THE CASE

A. Proceedings in District Court and Eleventh Circuit

Court of Appeals

1. Basis for federal jurisdiction

This state libel action, arising out of a labor dispute,

was Originally brought by the petitioners in the Circuit

Court for the Eleventh Judicial Circuit in and for Miami-

Dade County, Florida. The respondents Airline Pilots

Association [ALPA] and their leaders thereafter removed

this cause to the United States District Court for the

Southern District of Florida pursuant to 28 U.S.C.

§ 1441(a), and then successfully resisted petitioners’

motion to remand the action back to state court. The

asserted basis for federal jurisdiction is that this is an

action “arising under the... laws .. . of the United

States” -— thereby giving the District Court original juris-

diction in the case under 28 U.S.C. § 1331 — because the

action may be preempted under the Railway Labor Act.

2. The nature of the action

This state libel action arises out of the ill-fated Inter-

national Association of Machinists [IAM] strike (1989-91)

at Eastern Airlines that eventually drove Eastern out of

business in January 1991. From March 1, 1989 to Novem-

ber 22, 1989, the respondent ALPA’s local union leader-

ship at Eastern ordered its members to go out on strike

without taking a union membership vote — we say ille-

gally - in sympathy with the IAM strike. Many of the

petitioners defied this strike from the outset or shortly

thereafter. About five months into the strike, on August 6,

1989, the respondents held a local union meeting of all

the Eastern pilots —- at which time the local ALPA union

president at Eastern ordered the striking pilots to return

to work, and over 250 of the petitioners complied.

The gravamen of the libel action is that after Eastern

ceased operations, the respondents ALPA and its leaders,

with New York Times “actual malice,” printed and distrib-

uted 50,000 copies of a blacklist to all major commercial

airlines on a world-wide basis falsely accusing 2,242 East-

ern pilots [over 40% of the Eastern ALPA union member-

ship and all the petitioners] of being trade union “scabs”

in the IAM sympathy strike. The petitioners contend that

this libelous, world-wide blacklist destroyed their careers

as commercial airline pilots.

The petitioners are a group of 413 airline pilots who

formerly worked for Eastern and were represented by

ALPA. They filed a complaint, later amended, for libel2

under Florida law against the respondents ALPA and its

2 Claims were also filed for intentional interference with

business relationships, and breach of the duty of fair

representation. These claims, however, were either dismissed or

resulted in the entry of an adverse summary judgment and form

no part of the instant petition for a writ of certiorari.

union leaders. [3d Amended Compl] [App. K]. In their

complaint, the petitioners divided themselves into three

groups depending on when they crossed the IAM/ALPA

picket lines during this labor dispute. The Group I peti-

tioners crossed the subject picket lines after August 6,

1989, when they were toid to do so by their local union

president at Eastern, Jack Bavis.4 The Group II petitioners

crossed the subject picket lines at various times between

March 4, 1989 and August 6, 1989, while the Group III

petitioners never honored the subject picket lines.

3. Disposition of libel claim

Upon proper motion, the United States District Court

for the Southern District of Florida (Judge Edward Davis)

entered a summary judgment for the respondents on the

libel claim - on the ground that the claim was preempted

3 These leaders were: Henry Duffy, the president of ALPA

from January 1, 1983 to December 31, 1990; Randolph Babbit,

Executive Administrator of ALPA during Duffy’s term and

president of ALPA since January 1, 1991; C.H. Copeland,

Chairman of the Eastern MEC of ALPA from September 1989 to

December 31, 1994; and J. Breen, Lewis Baldwin and Gregg

Petachenko, members of the Eastern MEC’s Strike Committee.

[Sum.Judg. Order] [App. B, 64].

4 For simplicity sake, Jack Bavis is referred to throughout

this petition as the “local union president.” By this, we mean

that Bavis was the Chairman of the Master Executive Council of

ALPA at Eastern Airlines, and was the highest ALPA official at

Eastern Airlines, save for the national ALPA president. Stated

differently, he was, in effect, in charge of all ALPA pilots who

flew for Eastern.

by the Railway Labor Act. In particular, the District Court

concluded that as a matter of law (1) the “scab” accusa-

tion was true, and (2) even if false, it was not uttered with

“actual malice.” [Sum.Judg. Order]. [App. B, 80-87]. The

petitioners filed a timely appeal to the United States

Court of Appeals for the Eleventh Circuit from a subse-

quently-entered certified final judgment under Rule 54(b)

of the Federal Rules of Civil Procedure. The Eleventh

Circuit Court of Appeals affirmed based on the same

grounds relied on by the District Court. [Maj.Op.]5 [App.

A, 9-30]. This petition for a writ of certiorari follows.

B. Statement of the Evidence in the Record

Both the majority and dissenting opinions in the

Eleventh Circuit’s decision below [together with the

record before the Eleventh Circuit] reveal the following

record evidence viewed in a light most favorable to the

petitioners — the appellate standard for reviewing a sum-

mary judgment.®

5 The symbol “Maj.Op.” refers to the majority opinion of

the Eleventh Circuit Court of Appeals in this cause.

¢ The Eleventh Circuit below correctly states that the

standard of review for a summary judgment, as here, is de novo

in which the appellate court reviews “all [record] evidence and

all factual inferences therefrom in the light most favorable to the

non-moving party” — the petitioners herein. [Maj.Op.] [App. A,

7); see e.g. Eastman Kodak Co. v. Image Tech. Serv., Inc., 504 U.S.

451, 465 n. 10 (1992).

1. IAM sympathy strike and its immediate after-

math

On March 1, 1989, the Eastern Master Executive

Council [MEC] - the local union leadership of ALPA at

Eastern Airlines — ordered the 3400 ALPA membership at

Eastern Airlines to go out on strike in sympathy with a

simultaneous strike called by the IAM that eventually

drove Eastern out of business. [Maj.Op.] [App. A, 2-3].

The strike was called without taking a union membership

vote [Maj.Op.] [A, 15]; [Dissent]? [App. A, 42] - despite

union constitutional provisions expressly requiring a

union membership vote by secret ballot as a precondition

to calling a strike.®

The Group II and Group III petitioners in this action

‘— Eastern ALPA members and new-hires — did not honor

this strike and went to work at Eastern. [Maj.Op.] [App.

A, 26 n. 18]. Eastern MEC officials placed these pilots

[among others] on a “scab” blacklist - as they did anyone

7 The symbol “Dissent” refers to Judge Tjoflat’s dissenting

opinion to the Eleventh Judicial Circuit’s decision in this cause.

8 “When a suspension or withdrawal of service [i.e. a strike] is

called for in compliance with the requirements of the Constitution and

By-Laws or the Policy Manual, the members will be balloted before

such action may be taken. Association general balloting procedures

will be used.” Art. I, Sec. 25, ALPA Constitution. (emphasis and

brackets added). “The approval by a majority vote of the Master

Executive Council with the advice of the President [of ALPA]Jon

an airline is mandatory before a strike vote of the members of an

airline may be taken. This membership strike vote shall be by secret

ballot... .A simple majority of valid ballots returned shall govern.”

Art. IV, Sec. 2B, ALPA Constitution. (emphasis and brackets

added). [Maj.Op.] [App. A, 18 n. 12].

who returned to work at Eastern prior to November 22,

1989. [Maj.Op.] [App. A, 3-4, 5].

The strike provoked a great deal of internal union

membership disagreement about whether the strike

should continue. [Maj.Op. 4] [App. A, 4]. Consequently,

the Eastern MEC called a union meeting to discuss the

matter. [Maj.Op.] [App. A, 4].

2. Eastern ALPA union meeting and immediate

aftermath

On August 6, 1989 this meeting was conducted.

[Maj.Op.] [App. A, 4]. At the meeting, the Chairman of

the Eastern MEC Jack Bavis — the equivalent of the local

union president at Eastern - officially instructed the strik-

ing Eastern pilots to go back to work. [Maj.Op.] [App. A,

28]. Under the Eastern Airlines Pilots Manual issued to

9 The Eleventh Circuit correctly concludes there is a jury

issue as to whether this event happened because 17 of the

petitioners filed affidavits opposing summary judgment in the

District Court stating that Bavis instructed them to return to

work at the August 6, 1989 meeting. [Maj.Op.] [App. A, 28]. In

addition, on November 22, 1989, the Eastern MEC of ALPA later

brought union charges against Bavis for officially advising the

striking Eastern pilots, at this union meeting, to return to work

to save their jobs - a damning piece of evidence to say the least.

[Dissent] [App. A, 54]. These charges are outlined in a January

3, 1990 letter sent by the respondent Charles Copeiand to the

Chairman of the ALPA Hearing Board. [App. E, 101-04).

Distressingly, the Eleventh Circuit in its opinion distorts the

contents of what it claims to be a single unofficial audiotape

taken by one of the pilots at the meeting. [Maj.Op.] [App. A, 27].

Actually, the quotes appearing in the opinion come from five -

every Eastern pilot, a strike action could be terminated

only at the direction of the MEC chairman.!° Moreover, at

this same meeting “ALPA National officials [also] advised

the Eastern pilots to go back to work.” [Def. Randolph

Babbit article in Dec. 1992 ALPA official newsletter]

[App. F, 105] [Dissent] [App. A, 54]. The individual

respondents in this action were all present at this meet-

ing. [Dissent] [App. A, 55, 56].

With the express knowledge of the individual

respondents, on August 7, 1989 and the days that imme-

diately followed, over 450 striking Eastern pilots returned

to work at Eastern — including all the Group I petitioners

[Sum.Judg.Order] [App. B, 70] [App. I, 175, 178] - we say

in obvious compliance with Jack Bavis’ directive. Eastern

MEC officials placed these pilots on their “scab” blacklist

not one — incomplete, partially-garbled, unofficial audiotapes

taken by various pilots that the Court has strung together as if

they came from one continuous transcript — none of which was

remotely a “preface” to Bavis’ statements at the meeting. It is

unnecessary, however, at this point to correct the many errors

that appear in the Circuit Court’s recitation of these garbled,

fragmented transcripts — in view of the Court’s conclusion that

there is some evidence that Bavis told the union members to go

back to work at the August 6, 1989 union meeting. Nonetheless,

suffice it to say that all these unfortunate errors were discussed

at length in the petitioners’ reply brief [App. K, 223-225] in the

Eleventh Circuit as an answer to the respondents’ inaccurate

record representations to the contrary — representations that the

Circuit Court regrettably adopted.

10 “PLEASE KEEP IN MIND: A STRIKE ACTION WILL NOT

BE CALLED OFF OR TERMINATED EXCEPT BY DIRECTION

OF THE MEC CHAIRMAN.” (capitals and underscoring in

original) [Dissent] [App. A, 53].

<e-mUlUlmlmlcC ll

— as they did anyone who returned to work at Eastern

prior to November 22, 1989. [Maj.Op.] [App. A, 3-4, 5].

On August 12, 1989, the Eastern MEC announced to

the union membership that the strike was still on

[Maj.Op.] [App. A, 28-29] - after the Group I petitioners

had already returned to work. The strike then continued

for over three more months until November 22, 1989,

when the respondents finally gave up and announced to

the union membership that the strike was over. [Maj.Op.]

[App. A, 5].

3. World-wide publication of “scab” blacklist

In January 1991 and thereafter, ALPA and the indi-

vidual respondents printed and distributed 50,000 copies

of a “scab” blacklist to all major commercial airlines on a

world-wide basis. [Maj.Op.] [App. A, 5] [3d Amend.

Compl.] [App. J, 187] [Sum.Judg.Order at 11] [App. B,

73]. This blacklist accused 2,242 Eastern pilots of being

trade union “scabs” during the IAM sympathy strike

ordered by the Eastern MEC. [3d Amend.Compl., Exhib.

1] [App. G, 107-168]. Approximately 1,400 names on the

blacklist were Eastern ALPA union members!! — over 40%

of the 3400 total ALPA Eastern union membership. All of

the petitioners [413 pilots] were on this blacklist

[Maj.Op.] [App. A, 5] - with the Group I petitioners

11 ALPA, in its brief before the Eleventh Circuit, states that

831 trainee pilots were hired by August 7, 1989 [ALPA Br.] [App.

H, 170] which were presumably non-union and placed on the

scab blacklist. Subtracting that number from the 2,242 names on

the blacklist leaves 1,411 union pilots who were placed on the

blacklist.

consisting of over 250 pilots. [3d Amend.Compl. Schd. AI

& Exhib.1] [App. J, 186, 202-209].

4. Division of Eastern ALPA union membership

over IAM sympathy strike

Contrary to the Eleventh Circuit’s opinion, the record

contains considerable evidence that the ALPA Eastern

membership was divided from the outset on the

advisability of this ill-fated strike on which no member-

ship vote was ever taken - until it eventually became a

union in total turmoil. As previously noted, ALPA’s

“scab” blacklist contained the names of over 40% of the

total Eastern ALPA union membership. A non-binding

opinion poll taken by the Eastern MEC before the strike

indicates that 25% of those who expressed an opinion

were opposed to the strike from the outset; moreover,

ALPA has never indicated what percentage of the balance

actually opined in favor of the strike from the two other

options given on the poll. [Sum.Judg.Order] [App. B,

66].12

At the August 6, 1989 meeting, a non-binding, previ-

ously-unannounced show-of-hands “vote” was taken in

which [according to ALPA] 686 union members —- a mere

20% of the total 3,400 Eastern ALPA membership - indi-

cated their support of the strike. [ALPA Br.] [App. H, 171

n. 8]. After this meeting, at which Bavis had directed the

12 The balance [75% of the 80% who responded] either

opined that they were willing to give up their vote on the issue

to the MEC or were in favor of the strike — with no percentage

breakdown given on each of these two choices. [Dissent] [App.

A, 48-49].

bia ice

pilots to return to work, over 450 striking Eastern pilots

[more than 13% of the 3400 Eastern ALPA membership]

crossed the picket line the next day and_the days that

immediately followed - a traumatic event that ALPA has

since referred to as “Black Sunday.” [R. 25-443; pls’ exhib.

presented at Sum.Judg.Hearing] [App. I, 175, 178].

REASONS FOR GRANTING THE PETITION

A. FEDERAL LABOR LAW DOES NOT ENTITLE A

LABOR UNION AND ITS LEADERS TO A SUM-

MARY JUDGMENT IN A STATE LIBEL ACTION

BROUGHT AGAINST THEM FOR PUBLISHING

50,000 BLACKLISTS TO POTENTIAL EMPLOYERS

ON A WORLD-WIDE BASIS ACCUSING ITS

UNION MEMBERS AND OTHERS OF BEING

TRADE UNION “SCABS” - WHERE, AS HERE,

THESE WORKERS REFUSED TO HONOR AN

ILLEGAL STRIKE UNILATERALLY CALLED BY

UNION LEADERS WITHOUT TAKING A UNION

MEMBERSHIP VOTE AS EXPRESSLY REQUIRED

BY THE UNION CONSTITUTION

1. Importance of the issue decided

The Eleventh Circuit Court of Appeals has held in a

2-1 decision below - with Judge Tjoflat dissenting — that

federal labor law, under the doctrine of preemption, enti-

tles a labor union and its leaders to a summary judgment

in a state libel action for printing and distributing 50,000

blacklists to potential employers on a world-wide basis

accusing its union members and others of being trade

union “scabs” for not honoring a strike unilaterally called

by union leaders —- even though the strike may have been

illegally called without conducting a union membership

strike vote in express violation of the union constitution.

[Maj.Op.] [App. A, 13-17].

One of the important considerations in determining

whether this Court should exercise its certiorari jurisdic-

tion is whether “a United States court of appeals has

decided an important question of federal law that has not

been, but should be, settled by this Court.”!3 We submit

that the Eleventh Circuit has decided a question of far-

reaching national importance that has not been, but

should be, settled by this Court. And settled in a way that

allows the states to hold labor unions and their leaders

accountable under state libel law for publishing irrespon-

sible “scab” accusations against their members for defy-

ing otherwise illegal strikes unilaterally called by union

leaders without taking a union membership vote in

express violation of the union constitution. Surely, union

leaders should not be allowed to escape the reach of state

libel laws when, as here, they violate the fundamental

voting rights of union members to determine the most

important decision a union makes — whether to go out on

strike - and then smear as “scabs” anyone who defies

their arbitrary orders.

In particular, the Eleventh Circuit below concluded

that it was factually true, and therefore not libelous, for a

labor union and its leaders to call union members and

others trade union “scabs” for not honoring a strike uni-

laterally called by union leaders — regardless of whether

13 Rule 10(c), U.S. Sup.Ct. Rules.

the strike was legal or illegal under the union constitu-

tion. This is so, the Circuit Court concluded, because a

“scab” in the trade union sense is a person who does not

honor a de facto union work stoppage — whether lawfully

called or not - as the legality of a strike is a technical

formality that forms no part of a “falsity” analysis of a

“scab” accusation in a state libel action. Here is the Cir-

cuit Court’s reasoning and holding on this point:

The pilots argue that ALPA was never legit-

imately on strike because it failed to conduct a

formal secret ballot of its membership as

required by ALPA’s Constitution and By-Laws.

Contending that the strike was illegally called,

the pilots assert that there was no valid strike,

that they cannot be considered to have worked

when their union was striking, and that thus

they cannot be considered as “scabs.”

The pilots argue that falsity should be assessed

in this case based on the technical legalistic

definition of “strike” and whether this “strike”

was called legally under ALPA’s Constitution

and By-Laws. Their argument, however, misses

the whole point of Letter Carriers, Linn and

Bresler’s mandates to consider the surrounding

circumstances and reasonable understanding of

the supposedly defamatory remarks and not the

strictly legalistic or literal interpretation of the

words used. * * * As a reasonable reader would have

understood, a “scab” of “Eastern of the Strike of ‘89”

was a person who returned to work during the well-

publicized 1989 pilots massive work stoppage

designed to enforce compliance with demands made

on an employer. The truth or falsity of the label

“scab” turns not on a highly formalistic, legal anal-

ysis of the validity of the strike itself under ALPA’s

constitution but on a reasonable readers perception

of this work stoppage as a “strike.” Thus, ALPA’s

describing Plaintiffs as “scabs” was not

ae. ** *

Similarly, ALPA’s listing of these pilots as

“scabs” during the 1989 strike was not an accu-

sation that ALPA’s leadership called the sympa-

thy strike in the strict, legal manner provided

for under its Constitution and By-Laws, its

Administrative Manual, and its other rules.

Instead, placing these pilots on the “scabs” list was

an allegation that they worked during the union’s

called work stoppage and was factually true. A rea-

sonable reader would understand the pilots on

—_—, ALPA’s “scab” list to be the pilots who returned to

work across union picket lines during the 1989 work

stoppage. In assessing falsity of “scabs” in this libel

suit, how a labor strike must be called under a

particular union's constitution, by-laws and rules,

and whether this labor strike was legally called there-

under was simply not part of the generally accepted

definitions of a “scab” or a “strike” that inform the

analysis in a libel claim — much less part of the

reasonable reader's concern in reading the 1989

“scabs” list.

[emphasis added] [footnotes omitted] [Maj.Op.] [App. A,

15-17].

We strongly disagree with this analysis because, in

our view, a “scab” in the trade union sense is inter alia

one who refuses to honor a union-authorized strike — not,

as here, an illegal strike called at the whim of union

leaders. Indeed, we think that a reasonable reader of such

a scabbing accusation wouid assume this to be true -

especially when the accusation is made, as here, by a

union. In this connection, we agree with the Eleventh

Circuit that “[t]he pertinent definition of [a trade union]

‘scab’ ” is “one who refuses to strike or returns to work

before a strike has ended.” [Maj.Op.] [App. A, 14] [quot-

ing from Webster’s Third International Dictionary 2022

(1986)]. But obviously implied in that definition is that

the strike in question was union-authorized, not an illegal

strike unauthorized by the union membership. Other-

wise, the accusation carries no negative connotation that

the alleged “scab” did anything contrary to the union

membership’s interests. Indeed, Judge Tjoflat, in dissent

below, expressly so concluded:

In this case, we must assume that ALPA

intended, through the publication of the scab

list, to convey that its strike was legal. A con-

trary assumption would mean that ALPA pub-

lished a list of all the pilots who worked during

a strike it illegally ordered. Although it is theo-

retically possible that ALPA wanted to convey

such a message, it is highly unlikely, for such a

message would only harm the union.

Further, the scab list was distributed to [other

airlines and] pilots at other airlines and was -

by ALPA’s own admission — intended to make it

difficult for the named pilots to obtain employ-

ment with other airlines. If the strike was ille-

gally called, pilots’ inclusion on the scab list

would provide no basis for denying them

employment. On the contrary, a pilot’s refusal to

participate in an illegal strike, called by union

bosses acting outside the scope of their author-

ity, would make the pilot a more attractive can-

didate for employment. Inclusion on the scab

list would in no way demean the character of

persons so included, but instead would be a

badge of honor.

Thus, in the context of this case, the scab allega-

tion makes serse only if the strike was legally

called, because only then would inclusion on the

scab list carry a negative connotation. It was

therefore a necessary assumption of the persons

reading the scab list that the strike was legally

called. This assumption was buttressed by the

fact that the scabbing charge was being made by

a union, in a publication distributed by the

union pursuant to a formal union resolution.

Under these circumstances, a reasonable reader

undoubtedly would assume that the persons on

the scab list had refused to participate in a valid,

union-authorized strike. This assumption, how-

ever, was false. As demonstrated in the preced-

ing section, the strike was not called in

accordance with the union’s Constitution and

By-Laws, and was therefore invalid. Conse-

quently, the scab allegation was false, and the

appellants have established the falsity element

of their libel claim.

[footnote omitted] [App. A, 43-44].

Nonetheless, under the Eleventh Circuit’s holding,

labor unions and their leaders may with impunity uni-

laterally call and conduct an illegal strike without taking

a union membership strike vote in express violation of

the union constitution - accuse any of its members of

being a trade union “scab” if the member refuses to

honor this illegal strike - and are protected by federal

labor law from any legal accountability to its members

under state libel laws for making such an accusation.

This, we submit, constitutes a breath-taking judicial

approval of arbitrary union power with far-reaching

national implications. The decision, in effect, gives

unbridled authority to union leaders throughout the

country to make scabbing accusations against union

members who have the courage to defy a strike that

union leaders have illegally called in complete disregard

of the fundamental voting rights of the union member-

ship - which, as an aside, is hardly a “technical” legal

deficiency, as the Eleventh Circuit concludes in its deci-

sion below. This is especially true in this case where the

scabbing accusation was made by ALPA and its leaders in

50,000 blacklists published and distributed to all major

commercial airlines on a world-wide basis to destroy the

petitioners’ careers as commercial airline pilots. This

unjustified decision which sanctions a monumental injus-

tice should not be allowed to stand - and should there-

fore trigger this Court’s exercise of its certiorari

jurisdiction. .

2. Prior Supreme Court precedent

In two prior cases, this Court has considered the

extent to which state libel laws are applicable in a labor

dispute, the last case having been decided over 25 years

ago in 1974. This Court, however, has never addressed

the specific issues presented by this case. We submit the

time has come for the Court to do so.

In particular, we think the states must be given some

leeway to redress through their libel laws the horrendous

reputational and economic damage inflicted by labor

unions on their members and others through the union’s

publication of reckless “scab” falsehoods in a labor dis-

pute - as vividly shown in this case. Without dispute,

federal labor law leaves these petitioners and other sim-

ilarly-situated union members with no administrative

remedy for such defamation. It should not also leave

these workers remediless under state libel law.

In the first of these cases, this Court in Linn v. United

Plant Guard Workers of America, Local 114,14 decided that

federal labor law partially preempted the application of

state libel laws in a labor dispute — but allowed such libel

actions if the fibel met the New York Times Co. v. Sullivan’

standard. In particular, the Court held “where either

party to a labor dispute circulates false and defamatory

statements during a union organizing campaign, the

court does have jurisdiction to apply state remedies [i.e.

state libel law] if the complainant pleads and proves that

the statements were made with [actual] malice and

injured him.”!© Indeed, the Court observed:

But it must be emphasized that malicious libel

enjoys no constitutional protection in any con-

text. After all, the labor movement has grown

up and must assume ordinary responsibilities.

The malicious utterance of defamatory state-

ments in any form cannot be condoned, and

unions should adopt procedures calculated to

prevent such abuses.!7

14 383 U.S. 53 (1966).

1S 376 U.S. 254 (1964).

16 Linn, 383 U.S. at 55.

17 Linn, 383 U.S. at 63.

In the second of these cases, this Court in Old Dominion

Branch No. 496, Nat'l Ass’n of Letter Carriers v. Austin,}8

expanded the Linn holding beyond union organizing

campaigns to include any labor dispute “where the poli-

cies of the federal labor law leading to protection for

freedom of speech are significantly implicated.” 19

A state libel claim arising out of a labor dispute may,

therefore, be maintained and is not preempted by federal

labor law — if three elements are pled and proven:

(1) the statements sued upon must be false and

defamatory as to the plaintiff; ,

(2) the defamatory statements must be pub-

lished by the defendant with “actual malice” -

that is with knowledge of its falsity or with utter

disregard whether it was true or false;?!

and

(3) the plaintiff must be actually injured by the

defamatory statements - which damage “may

include general injury to reputation, consequent

mental suffering, alienation of associates, speci-

fic items of pecuniary loss, or whatever form of

harm would be recognized by state tort law.”22

Directly related to the issues presented by this case,

this Court in Linn expressly held that calling a person a

“scab” in a labor dispute is not an actionable libel under

18 418 U.S. 264 (1974).

19 Letter Carriers, 418 U.S. at 279.

20 Linn, 383 U.S. at 55.

21 Letter Carriers, 418 U.S. at 281-82.

22 Linn, 383 US. at 65.

this standard if, in fact, the person is a “scab” under the

commonly accepted trade union definition of that term.

The stated rationale for this result was that (a) “[t]he sine

qua non of recovery for defamation in a labor dispute

under Linn is the existence of falsehood;” (b) “the only

factual statement in the.disputed publication is the claim

that [plaintiffs] were scabs [in the trade union sense];”

and (c) “naming the [plaintiffs] as scabs was [therefore in

this case] literally and factually true.”23 Thus, the Court

concluded that calling a person a “scab” who refused to

join a union was not an actionable libel because the

statement was true. One definition of a trade union

“scab” is a person who refuses to join a union, and this

was true of the Linn plaintiff. The Court, however, was

careful to point out that if the “scab” accusation was not

true in the trade union sense, a different result might

obtain:

This is not to say that there might not be situa-

tions where the use of this writing [containing a

“scab” accusation] or other similar rhetoric in a

labor dispute could be actionable, particularly if

some of its words were taken out of context and

used in such a way as to convey a false repre-

sentation of fact. [citation omitted] But in the

context of this case, no such factual representa-

tion can be reasonably inferred, and the publica-

tion is protected under the federal labor laws.?4

Accordingly, the issue for the Court’s consideration

in this case is whether accusing the petitioners of being

“scabs” in ALPA’s 50,000 blacklists published on a world-

23 Letter Carriers, 418 U.S. at 283-84.

24 Letter Carriers, 418 U.S. at 286.

eure canescens nani reece cers io

wide basis conveyed to the reasonable reader a false

representation of fact - namely that the petitioners had

refused to honor a union-authorized strike — when, in fact,

the strike was not union-authorized, as it was illegally

called without taking a union membership secret ballot

vote as expressly required by the union constitution. We

submit this is an extremely important issue with nation-

wide implications that should be decided by this Court.

3. ALPA’s IAM sympathy strike was illegal

Without dispute, the Eastern MEC leaders uni-

laterally called the 1989 IAM sympathy strike without

taking a secret ballot strike vote of the ALPA Eastern

union members. The ALPA Constitution, however,

expressly gives union members the right to a secret ballot

vote on a strike before it is called. Article I, Section 25 of

the ALPA Constitution could not be any clearer:

When a suspension or withdrawal of service [i.e. a

strike] is called for in compliance with the require-

ments of the Constitution and By-Laws or the Policy

Manual, the members will be balloted before such

action may be taken. Association general balloting

procedures will be used.

[emphasis and brackets added] [Maj.Op.] [App. B, 18 n.

12]. Article IV, Section 2B of the ALPA Constitution, in

turn, provides that a union membership strike vote shall

be by secret ballot:

The approval by a majority vote of the Master Execu-

tive Council on an airline with the advice of the

President [of ALPA] is mandatory before a strike

vote of the members of an airline may be taken. This

membership strike vote shall be by secret ballot... .

A simple majority of the valid ballots returned shall

govern.

[emphasis added] [Maj.Op.] [App. A, 18 n. 12].

Not only do these constitutional provisions give

ALPA members the right to vote on any strike that the

MEC calls, there is no exception made for any particular

type of strike — including a sympathy strike. As Judge

Tjoflat correctly observed in dissent below:

Reading these provisions together, it appears

indisputable that the ALPA Constitution and

By-Laws requires a vote of the membership

before a strike may be called * * *

Likewise, there is nothing in the text of the

Constitution and By-Laws that distinguishes

among types of strikes - understandably so,

given that a strike has the same impact on labor

and management regardless of the reason why it

is called - and it is therefore unreasonable for

ALPA now to claim that the strike provisions in

its Constitution and By-Laws refer only to pri-

mary strikes.

[App. A, 41-42]. Accordingly, ALPA’s 1989 IAM sympathy

strike was entirely illegal as it was admittedly conducted

without conducting a secret ballot union membership

vote in express violation of the ALPA Constitution.

The Eleventh Circuit, however, concluded in an alter-

native holding below that the ALPA sympathy strike was

lawfully called. The basis for this alternative holding was

that ALPA has consistently interpreted the above consti-

tutional provisions to be inapplicable to sympathy

strikes. [Maj.Op.] [App. B, 18-24]. Admittedly true. In flat

contradiction to its own Constitution, the ALPA union

leadership for the past thirty years has unilaterally arro-

gated to themselves, by administrative fiat, the right to

unilaterally call sympathy strikes without taking a union

membership vote.

Beyond that, ALPA in its brief before the Eleventh

Circuit below states that the union “typically (but not

always) utilizes these [voting] procedures to conduct

union membership votes in primary economic strikes.”

[ALPA Br.] [App. H, 172]. Consequently, ALPA has not

only ignored the constitutional rights of its members to

vote in sympathy strikes, but apparently in some primary

strikes as well. Contrary to the Eleventh Circuit’s conclu-

sion, however, this cynical “interpretation” of the ALPA

Constitution is in utter disregard of the express constitu-

tional rights of union members and is entitled to no

deference whatever.?¢ It is done in bad faith, is utterly

implausible, and is patently unreasonable. As stated by

Judge Tjoflat in dissent below:

The majority points out that, for over thirty

years, ALPA has interpreted its Constitution

and By-Laws as not requiring a membership

vote for a sympathy strike. This tells us merely

25 “The decision to honor or not honor picket lines of other

crafts shall be left to the discretion of the President and the MEC

of the carrier involved.” ALPA Administrative Manual, Part 4,

Section D. [Maj.Op.] [App. A, 20].

26 See Dow v. United Brotherhood of Carpenters and Joiners of

America, 1 F.3d 56, 58 (1st Cir. 1993), and authorities collected

(courts generally defer to a union’s interpretation of its

governing documents unless the interpretation is patently

unreasonabie or implausible).

that ALPA’s interpretation has been consistent,

not that it is reasonable.

Equally irrelevant to the question of the legality

of the strike is the fact that ALPA’s interpreta-

tion is included in ALPA’s Administrative Man-

ual; the ALPA Board of Directors [the author of

the manual] has the power to interpret and apply

the ALPA Constitution, but not to ignore it. Oth-

erwise, the Constitution and By-Laws would be

no more than default provisions, subject to revi-

sion at the whim of the Board of Directors.

[emphasis in original] [App. A, 42 n. 9].

More to the point, the fact that the ALPA union

leadership has gotten away with its despotic practice of

refusing union membership votes in sympathy strikes -

and apparently some primary strikes as well - for the

past thirty years does not, as urged, make the practice

democratic, plausible or reasonable. As surely the last

century has taught us, the arbitrary exercise of power by

either the government or private combines never

improves with age. At long last, the ALPA union mem-

bership has called its leadership to account, and this

leadership cannot escape this accounting by claiming that

they have always done it this way.

4. “Actual Malice” standard satisfied

Contrary to the Eleventh Circuit’s conclusion, there is

sufficient evidence in this record from which a jury could

reasonably conclude that ALPA and its leaders published

the false and defamatory accusations in this case with

“actual malice” — that is, with knowledge of such falsity

or in reckless disregard of whether such accusations were

Pt lt SD AR ae ss

Pe Sn Mice: Meee

BBA ERRD Ea Rens Ns

true or false. As pointed out by Judge Tjoflat in dissent

below:

“Reckless disregard,” in this context, means that

the defendant made the allegation despite

“entertain[{ing] serious doubts as to the truth

thereof.” St. Amant v. Thompson, 390 U.S. 727,

730... (1968).

[App. A, 45]. In this connection, the respondents surely

knew - or at least must have entertained serious doubts —

that its scabbing allegation was false, that the ALPA

Eastern MEC had no legal authority to unilaterally call a

strike without first taking a union membership strike

vote as expressly required by the union constitution, and

that the petitioners therefore had not defied a union-

authorized strike. This is so based on four factors outlined

by Judge Tjoflat in dissent which we entirely adopt.

[App. A, 46-51].

First, the ALPA Constitution could not be any clearer:

a union-authorized strike requires a strike vote of the

membership. Even a lay person would have known this.

Assuming, therefore, that the ALPA leadership read

its own Constitution, it must have known that a vote

was required. This seems a fair assumption consider-

ing the substantial legal significance given to voting

rights contained in a union’s Constitution and By-

Laws. Federal law provides a cause of action

against a union for denying a member the right

to vote, if the right to vote is contained in the

union’s Constitution and By-Laws. (citations

omitted). ALPA is no stranger to this cause of

action; it has been sued on the basis of federal

voting rights requirements on numerous occa-

sions, both before and after the events giving

rise to this lawsuit. * * * Finally and more gener-

ally, federal law imposes a “duty of fair repre-

sentation” on unions that requires them always

to act in their members’ best interests (citation

omitted); such a duty suggests that unions are

expected to be aware of their constitutional obli-

gations to their members. These obligations

include, I submit, the duty not to defame as

“scabs” members who refused to participate in

an illegal strike. In light of this body of law — and

ALPA’s known familiarity with it — it would be

difficult for ALPA to claim that it was unfamiliar

with the voting requirements contained in its own

Constitution and By-Laws, or that it honestly

thought it could ignore the requirements of the Con-

stitution and By-Laws on the basis of its own inter-

nal administrative policies.

[emphasis added] [App. A, 46-48].

“Second, the idea that the union leadership would

not be required to poll the membership before calling a

strike is so implausible that it seems unlikely that ALPA

actually believed it.” [Dissent] [App. A, 48]. Indeed,

“[s]uch an approach would deprive workers of any direct

input into the most important decision that a union

makes.” Id.

Third, the non-binding opinion poll taken by ALPA

just prior to calling the strike “suggests that ALPA had

serious doubts regarding its power to call a strike uni-

laterally.” [Dissent] [App. A, 48]. This is so because the

poll included an option in which members could opine

that “[m]y elected MEC representatives are best qualified

to make this decision, if and when an IAM strike occurs,

and I will abide by their decision.” [Dissent] [App. A, 49]

6 ial ni ee i a teas x

€

As Judge Tjoflat observed in dissent, “[t]he availability of

the third option could lead a reasonable jury to conclude

that ALPA knew (or at least suspected) that it could not

call a strike on its own, and that the purpose of the poll

was to encourage the members to abdicate their voting

rights.” Id.

Finally, ALPA and its leaders conducted no investiga-

tion whatever to determine whether their “scab” allega-

tion was true — whether these petitioners had defied a

legal, union-authorized strike - before sending out their

50,000 blacklists on a world-wide basis. In particular, they

sought no legal advice on the matter at all. Moreover,

ALPA was under no rush to issue its blacklists when they

did, as there was no pressing need for an immediate

publication. And as Judge Tjoflat noted in dissent below:

When there is no pressing need for immediate

publication of a defamatory allegation, actual

malice may be inferred if the investigation given

to the allegation is grossly inadequate under the

circumstances. See Harte-Hanks Communications,

Inc. v. Connaughton, 491 U.S. 657, 692-93...

(1989); Vandenburg v. Newsweek, Inc., 441 F.2d

378, 380 (5th Cir. 1975).

[footnote omitted] [App. A, 49].

B. FEDERAE-LABOR LAW DOES NOT ENTITLE A

LABOR UNION AND ITS LEADERS TO A SUM-

MARY JUDGMENT IN A STATE LIBEL ACTION

BROUGHT AGAINST THEM FOR PUBLISHING

50,000 BLACKLISTS TO POTENTIAL EMPLOYERS

ON A WORLD-WIDE BASIS ACCUSING ITS

UNION MEMBERS OF BEING TRADE UNION

“SCABS” - WHERE, AS HERE, THESE UNION

MEMBERS HONORED A PREVIOUSLY-CALLED

ILLEGAL UNION STRIKE, AND LATER

RETURNED TO WORK ONLY WHEN THEIR

LOCAL UNION PRESIDENT DIRECTED THEM

TO DO SO

Compounding the national significance of the issue

decided by the Eleventh Circuit is the Court’s refusal to

accord any libel remedy under state law to even those

union members who initially honor a union leadership-

called strike, although an illegal one, but later return to

work at the direction of the local union president. These

are the Group I petitioners in this case — over 250 Eastern

pilots. Not even these otherwise loyal union members

have any libel remedy under the Circuit Court’s decision

below. The union may with impunity label these union

members as trade union “scabs” in 50,000 blacklists dis-

tributed to all the major commercial airlines in the world

and destroy their careers.

Indeed, the Circuit Court below acknowledged that

“a jury issue exists” on whether the Eastern ALPA Chair-

man [Jack Bavis] directed the striking Eastern pilots to

return to work at the critical August 6, 1989 union meet-

ing because “seventeen pilots filed affidavits stating that

Bavis urged pilots to return to work at the August 6

VSIA PEO MUON Se Se

ESN ne ene

SERGE SEBS

sa erase

meeting.” [Maj.Op.] [App. A, 28]. Nonetheless, the Cir-

cuit Court held that it was still true as a matter of law -

and even if false, no “actual malice” was involved — for

ALPA and its leaders to call the Group I petitioners trade

union “scabs.” This is so, the Circuit Court reasoned,

because ALPA Eastern MEC informed the union members

six days later, on August 12, 1989, that the strike was still

on, and the work stoppage continued thereafter.

[Maj.Op.] [App. A, 28-29]. Of course, by that time it was

too late for the Group I petitioners, as they had all

returned to work prior to August 12, 1989, and had

already made the scab blacklist from which they could

not be removed.

But no matter. They too are trade union “scabs.”

They too have no libel action remedy against their union

for this incredible outrage. Why? Because these peti-

tioners “crossed” the “hardliner” union leaders at the

Eastern ALPA MEC who wanted to continue this ill-

advised strike — notwithstanding the contrary directive of

the local union president at Eastern whom the “hard-

liners” promptly removed and later filed charges against

for issuing this very directive. Moreover, the respondents

knew that the local union president had directed the

Group I petitioners to return to work. Nonetheless, they

intentionally or at least recklessly smeared these loyal

union members as trade union “scabs” when in fact these

petitioners were no such thing - as the respondents

surely knew. And who got irreparably hurt in this sense-

less union leadership struggle for power? Whose careers

as commercial airline pilots were totally destroyed? The

average union member. The member who followed the

rules and obeyed their union leaders. The Group I peti-

tioners. These people too have no state libel remedy

under the Eleventh Circuit’s decision. We submit that this

totally unjustified decision which sanctions a monumen-

tal injustice should not be permitted to stand - as it has

national implications that are inimical to a democratic

union movement and a democratic society.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Puiturp A. HuBBART

Suite #2930, One Biscayne Tower

Miami, Florida 33131

(305) 374-0650

Counsel of Record for Petitioner

Mytes J. TRALINS

Suite #2930, One Biscayne Tower

Miami, Florida 33131

(305) 374-3300

Co-Counsel for Petitioner

PA EER TAR PL 6D LE

App. 1

APPENDIX A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-5587

D.C. Dokcet No. 91-2679-CV-EBD

LARRY DUNN, TOM DUCKWORTH, et al.,

Plaintiffs-Counter-

defendants-Appellants,

versus

AIR LINE PILOTS ASSOCIATION,

HENRY DUFFY, et al.,

Defendants-Counter-

claimants-Appellees.

Appeals from the United States District Court

for the Southern District of Florida

(October 25, 1999)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

HULL, Circuit Judge:

A group of airline pilots allege that the Air Line

Pilots Association - a labor union - libeled them by

placing them on a “scabs” list. The pilots also assert that

App. 2

by listing them as “scabs,” the union intentionally inter-

fered with their business relationships with other airlines.

The district court dismissed the tortious interference

claim for failure to state a claim for relief. As for the libel

claim, the court held on summary judgment that the

description of the pilots as “scabs” was not false because

the pilots admit they crossed union picket lines and

worked during the 1989 strike of Eastern Air Lines. The

district court also held there was no evidence of actual

malice. We affirm.

I. FACTS

A. Eastern Pilots’ Sympathy Strike

The Air Line Pilots Association (“ALPA”) is a labor

union that represents airline pilots from a number of

commercial airlines. Within each airline, ALPA operates

through a Master Executive Council (“MEC”), a board of

elected pilot representatives that makes union policy

decisions relating to that airline.

In early 1989, Eastern Air Lines, Inc. (“Eastern” or

“EAL”) reached an impasse in its negotiations with the

International Association of Machinists (“IAM”), and

IAM began to consider a strike. At its February 1989

meeting, the Eastern MEC adopted a formal resolution

declaring the MEC’s intention to direct pilots to honor

IAM picket lines in the event of an IAM strike.

The Eastern MEC also directed its officers to survey

the membership to measure pilot support for a sympathy

strike to provide guidance to the MEC’s strike delibera-

tion. On February 16, 1989, MEC Chairman Bavis sent a

)

App. 3

letter to each Eastern pilot enclosing a copy of the MEC

resolution expressing support for the IAM. The following

day, the Eastern MEC sent a “ballot poll card” to each

Eastern pilot. Nearly seventy-five percent of the 2,165

pilots who returned the ballot poll cards responded that

they would honor IAM picket lines outright or would

support the MEC’s decision to call a sympathy strike.

The Eastern MEC met again on March 1, 1989. After

reviewing the results of the pilot survey and conducting a

last-minute telephone poll revealing even stronger pilot

support, the MEC unanimously adopted a resolution

“that all Eastern Air Lines pilots shall honor the Interna-

tional Association of Machinists picket lines and shall

refuse to cross picket lines and that all pilots shall refrain

from performing any work for EAL during the strike.”

On March 4, 1989, the IAM struck Eastern, and ALPA

commenced its sympathy strike. Over ninety percent of

the approximately 3,400 Eastern pilots initially joined the

sympathy strike and refused to cross IAM picket lines.

B. “Scabs” List

Eastern encouraged pilots to cross picket lines by

promising that any pilot who returned to work would

receive promotions to higher-paying positions. In

response, on March 28, 1989, the Eastern MEC unani-

mously adopted a formal resolution to “publish a final-

ized list of strikebreaking pilots at the conclusion of the

ALPA sympathy strike” and to bring internal union

charges under ALPA’s constitution against ALPA mem-

bers who crossed the picket lines. Individuals were

App. 4

placed on this list of working pilots only upon receipt of

two confirmed reports that they had crossed ALPA picket

lines, and after being provided with “an opportunity to

refute the allegation” that they had crossed picket lines to

fly for Eastern.

The Eastern MEC, the strike operations committee,

and striking pilots repeatedly advised working pilots that

the union would regard them as “scabs” if they crossed

ALPA’s picket lines. For example, a July 31 MEC strike

committee report reminded pilots that, “[a] pilot becomes

[a] scab at [the] moment he signs to go back to work.”

C. Pilots Vote to Continue Strike

Meanwhile, the Eastern MEC was engaged in an

internal debate about whether to continue the Eastern

pilots’ sympathy strike. Initially, the MEC convened on

August 1, 1989, and met for five consecutive days to

review the situation. Following substantial discussion,

two “straw” polls of the MEC members established that a

majority favored continuation of the sympathy strike;

thus, the MEC unanimously adopted a resolution to con-

tinue the sympathy strike pending membership meetings

at each local pilot base.

The first of these local pilot meetings was held on

August 6 in Miami and broadcast to other cities. As

detailed later, the parties dispute what the ALPA and

Eastern MEC leadership said at this August 6 meeting

about returning to work. However, it is undisputed that

the August 6 meeting concluded with the Miami-based

Eastern pilots voting overwhelmingly, by a show of

App. 5

hands, to continue the sympathy strike. Subsequent local

pilot meetings yielded the same result. From August 6 to

9, ALPA held pilot meetings at communication centers

throughout the Eastern system. At each meeting, with

one exception, the pilots voted overwhelmingly to con-

tinue the sympathy strike.

On August 11, 1989, the Eastern MEC made an offi-

cial decision to continue the sympathy strike. ALPA Pres-

ident Duffy notified all ALPA pilots of the MEC’s

decision by letter, explaining: “Over the past week ... the

Eastern pilots have reviewed their options and have

voted overwhelmingly not to return to work without a

structured settlement of the sympathy strike.” On August

12, 1989, the strike operations committee likewise con-

firmed that “THE STRIKE IS ON!! THE PICKET LINE

REMAINS!!” The pilots’ overwhelming vote to remain on

strike was widely reported in the media and in internal

ALPA communications.

On November 22, 1989, the Eastern MEC voted to

end the pilots’ sympathy strike, despite the fact that the

IAM strike had not ended. Accordingly, the MEC made

an unconditional offer — on behalf of all pilots —- to return

to work.

During the sympathy strike, ALPA had compiled a

“scabs” list of pilots who crossed union picket lines to fly

for Eastern. ALPA added the names of other crossover

pilots and new hires over time. The list was available to

anyone who wanted it. In 1991, ALPA produced and

distributed 50,000 copies of the “scabs” list. This final

publication was entitled “The Scabs of Eastern of the

Strike of 89.”

App. 6

The Plaintiffs-Appellants in this case are all pilots

who were on this list. They brought suit against ALPA,!

alleging, inter alia, that the publication of the “scabs” list

constituted libel and that it intentionally interfered with

their business relationships with other airlines.? The dis-

trict court dismissed the tortious interference allegation

for failure to state a claim under Florida tort law.? The

court granted summary judgment to ALPA on the libel

claim, concluding that the pilots had not shown the

“scabs” list was false or evidence of actual malice, as

required for a libel claim.* The pilots now appeal these

rulings.

Il. STANDARD OF REVIEW

This Court reviews de novo the dismissal of a com-

plaint for failure to state a claim, construing all

' The Plaintiffs-Appellants also sued certain individual

executives in ALPA and in the Eastern MEC. In this opinion, we

refer to all of the Defendants-Appellees jointly as “ALPA” or the

“Defendants.”

2 The Plaintiffs-Appellants filed suit in Florida circuit

court; ALPA removed the case to the United States District

Court for the Southern District of Florida on the ground that

certain of the pilots’ claims (not at issue here) were governed by

the federal Railway Labor Act. See 28 U.S.C. § 1441 (1994).

3 The parties agree that Florida law controls this dispute

except to the extent it is preempted by federal law.

4 There was a summary judgment motion filed by ALPA

and Defendants Duffy and Babbit on April 12, 1996, and a

separate summary judgment motion filed by Defendants

Copeland, Breen, Baldwin, and Petachenko on April 22, 1996,

which incorporated the first by reference. The two motions raise

nearly identical issues.

App. 7

allegations in the complaint as true and in the light most

favorable to the plaintiff. Lowell v. American Cyanamid Co.,

177 F.3d 1228, 1229 (11th Cir. 1999); Harper v. Thomas, 988

F.2d 101, 103 (11th Cir. 1993). A complaint may not be

dismissed unless it appears beyond doubt that the plain-

tiff can prove no set of facts which would entitle plaintiff

to relief. Hall v. Coram Healthcare Corp., 157 F.3d 1286, 1288

(11th Cir. 1998); Terry v. Cook, 866 F.2d 373, 375 (11th Cir.

1989).

Our review of a summary judgment order is also de

novo. See Eastman Kodak Co. v. Image Tech. Servs., Inc., 504

U.S. 451, 465 n.10, 112 S.Ct. 2072, 2081 n.10, 119 L.Ed.2d

265 (1992); Harris v. H & W Contracting Co., 102 F.3d 516,

518 (11th Cir. 1996); Carriers Container Council v. Mobile

S.S. Assoc., Inc., 896 F.2d 1330, 1337 (11th Cir. 1990). We

review all evidence and all factual inferences therefrom in

the light most favorable to the non-moving party.

III. TORTIOUS INTERFERENCE CLAIM

We first consider the pilots’ claim for tortious inter-

ference with business relationships. ALPA moved to dis-

miss the claim under Fed. R. Civ. P. 12(b)(6) for failure to

state a claim upon which relief can be granted; the district

court granted the motion. See Dunn v. Air Line Pilots

Ass'n, 836 F.Supp. 1574, 1584 (S.D. Fla. 1993). The pilots

challenge this dismissal.°

5 The pilots filed three different complaints in this suit;

each complaint modified the prior complaint. The interference

with business relationships claim was part of the pilots’ second

complaint. ALPA contends that the pilots waived their right to

snare eae arenes

App. 8

Under Florida law, the elements of an interference

with a business relationship claim are: (1) the existence of

a business relationship, (2) the defendant's knowledge of

that relationship, (3) an intentional and unjustified inter-

ference with the relationship, and (4) injury resulting

from the breach of the relationship. See Tamiami Trail

Tours, Inc. v. Cotton, 432 So.2d 148, 151 (Fla. lst DCA

1983), aff'd in relevant part, 463 So.2d 1126, 1127 (Fla.

1985). A “business relationship,” for purposes of the first

prong, does not require the existence of a contractual

agreement. See id. It does, however, require a relationship

with a particular party, and not just a relationship with

the general business community. See Ethan Allen, Inc. v.

Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla. 1994). In

their complaint, none of the pilots alleged the existence of

a business relationship with a particular airline. They

instead alleged that ALPA’s publication of the scab list

prohibited them from obtaining employment with any

commercial airline - in other words, that it interfered

with the pilots’ ability to sell their labor to the general

community. Such an allegation is insufficient to state a

appeal the dismissal because after dismissal of that claim they

failed to replead interference with business relationships in

their third (and final) complaint. We disagree. The pilots

presumably had nothing to add to their interference with

business relationships claim; consequently, repleading would

have been futile and would have resulted only in a second

dismissal under Rule 12(b)(6). For this reason, we do not require

a party to replead a claim following a dismissal under Rule

12(b)(6) to preserve objections to the dismissal on appeal. See

Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1237-38 (5th Cir.

1978), vacated on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62

L.Ed.2d 371 (1979).

RAG REBAR SSA cai i OE:

Skt ie CORRS TUN 8

pM RMT ASS

i Sala Bee Ret i Chee BNA OR

App. 9

claim for intentional interference with a business relation-

ship; we therefore affirm the district court’s dismissal of

this claim.

IV. LIBEL CLAIM

Turning to the pilots’ libel claim, we initially discuss

applicable Supreme Court precedent and why the “scabs”

list was not false. We next explain why the district court

correctly held that the 1989 strike was lawfully called and

why ALPA’s interpretation of its governing rules is enti-

tled to judicial deference. Finally, we address the lack of

evidence of actual malice.

A. Supreme Court Precedent

Under Florida law, libel is defined as the

unprivileged written publication of false statements that

cause injury. See Delacruz v. Peninsula State Bank, 221

So.2d 772, 775 (Fla. 2d DCA 1969). However, the Supreme

Court has instructed that federal labor law partially pre-

empts state libel law because national labor policy favors

free speech, open communication, and robust debate in

labor disputes. 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, 57-58

(1966). Therefore, when published in the context of a

labor dispute, a defamatory statement concerning a plain-

tiff is actionable only if a plaintiff shows the statement

was made with actual malice. Linn, 383 U.S. at 65 (apply-

ing malice requirement to statements made during union

App. 10

organizing campaign); Letter Carriers, 418 U.S. at 273-281

(interpreting Linn to apply to all labor disputes).

To show “actual malice” a plaintiff must establish by

clear and convincing evidence that the speaker made the

statement “ ‘with knowledge that it was false or with

reckless disregard of whether it was false or not.’ ” Letter

Carriers, 418 U.S. at 281 (quoting test adopted by analogy

from New York Times v. Sullivan, 376 U.S. 254, 280, 285-86

(1964) (setting out standard for First Amendment restric-

tions on state defamation law and stating that plaintiff

bears the burden of proving actual malice with “convinc-

ing clarity”)); see also Gertz v. Robert Welch, Inc., 418 U.S.

323, 342 (1974) (clarifying that New York Times requires

“clear and convincing proof” of actual malice). In addi-

tion, “[b]efore the test of reckless or knowing falsity can

be met, there must be a false statement of fact.” Letter

Carriers, 418 U.S. at 284. Thus, a defamation claim escapes

labor-law preemption only if (1) there is a false statement

‘of fact; and (2) the plaintiff proves actual malice by clear

and convincing evidence. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986) (explaining how New York Times’s

requirement of clear and convincing proof affects the

court’s inquiry and presents a formidable obstacle at

summary judgment).

The Supreme Court has emphasized that the epithet

“scab” is “commonplace” in labor disputes and is a fac-

tual allegation that will support a libel claim but only if

false and made with actual malice. Linn, 383 U.S. at 60-61;

Letter Carriers, 418 U.S. at 282. Indeed, the Supreme

Court’s Letter Carriers decision involved a “scab” defama-

tion suit where the Court explained that “the only factual

statement in the disputed publication is the claim that

App. 11

appellees were scabs.” Letter Carriers, 383 U.S. at 285. The

Supreme Court examined the context in which “scabs”

was used and held that naming the appellees as “scabs”

was factually true and therefore appellees’ claims failed,

stating:

Rather than being a reckless or knowing false-

hood, naming the appellees as scabs was liter-

ally and factually true. One of the generally

accepted definitions of “scab” is “one who

refuses to join a union,” Webster’s Third New

International Dictionary (unabridged ed.1961),

and it is undisputed that the appellees had in

fact refused to join the Branch.

Id. at 282-83. In Letter Carriers, there was not even a union

organizing campaign, much less an ongoing strike or

work stoppage. Yet, the Supreme Court held that the

description “scabs” was not false even where used in the

context of a union’s simply gathering supporters.®

6 As noted by the dissent, the piece of trade union

literature, entitled “Ode To A Scab,” was on the front cover of

the scab list in this case entitled “The Scabs of Eastern of the

Strike of ’89.” Although the Supreme Court in Letter Carriers

held the epithet “scab” is a factual allegation that will support a

libel claim if false and made with actual malice, the Court

clarified that the pejorative definition of what a “scab” is in Jack

London’s “Ode To A Scab” was “rhetorical hyperbole” and was

entitled to protection under the federal labor laws. 418 U.S. at

285-86. The Court explained “[bJefore the test of reckless or

knowing falsity can be met, there must be a false statement of

fact....” Id. at 284. However, according to the Court, the

rhetoric in “Ode To A Scab” was “obviously used here in a loose,

figurative sense to demonstrate the union’s strong

disagreement with the views of the workers who oppose

unionization” and was not a representation of fact. Id. The Court

App. 12

In Letter Carriers, the Supreme Court further

explained that falsity in a libel case must be examined

from the perspective or understanding of the reader. The

Supreme Court followed the reasonable reader approach

developed earlier in Greenbelt Cooperative Publishing Asso-

ciation v. Bresler, 398 U.S. 6 (1970). In Bresler, the defen-

dants had characterized the position of the plaintiff in

certain negotiations as “blackmail,” and at trial, the plain-

tiff had recovered damages for libel on the theory that

defendants knew he had committed no such criminal

offense. The-Supreme Court reversed, holding that this

use of the word “blackmail” should not be legalistically

construed as the commission of the criminal offense of

“blackmail” but the way a reader would have reasonably

perceived the word. In Letter Carriers, the Supreme Court

quoted Justice Stewart’s reasoning in Bresler:

It is simply impossible to believe that a reader

who reached the word “blackmail” in either

article would not have understood exactly what

was meant: it was Bresler’s public and wholly

legal negotiating proposals that were being crit-

icized. No reader could have thought that either

the speakers at the meetings or the newspaper

articles reporting their words were charging

Bresler with the commission of a criminal

offense.

further noted that Jack London’s definition of a scab “has

become a familiar piece of trade union literature; according to

undisputed testimony in this case it has been published

countless times in union publications over the last 30 years or

more.” Id. at 286.

App. 13

Letter Carriers, 418 U.S. at 285-86 (quoting Bresler, 398

U.S. at 14). Applying this reasoning in Letter Carriers, the

Supreme Court found a reasonable reader of the union’s

use of the term “traitor” would not understand the union

“to be charging the appellees with committing the crimi-

nal offense of treason.” 418 U.S. at 285.

The reasonable reader approach has been followed

- consistently by the Supreme Court and this Circuit. See

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 515, 517

(1991) (inquiring into “the meaning a statement conveys

to the reasonable reader” and explaining that a “state-

ment is not considered false unless it ‘would have a

different effect on the mind of the reader from that which

the pleaded truth would have produced.’ ”) (quoting R.

Sack, Libel, Slander, and Problems 138 (1980)); Keller v.

Miami Herald Pub. Co., 778 F.2d 711, 716 (11th Cir. 1985)

(“Appellant’s strictly literal interpretation ignores the

nature of a cartoon and how cartoons are traditionally

understood by those who view them: ‘(Such an] inter-

pretation does not construe [the cartoon] as the common

mind would understand [it] but is tortured and extreme.’

' Valentine v. C.B.S., Inc., 698 F.2d 430, 432 (11th Cir. 1983)

(per curiam).”).

B. “Scabs” List Was Not False

Applying this precedent, we examine whether the

“scabs” list was false. In assessing falsity, we place the

“scabs” list in the context of the above undisputed events

surrounding the 1989 strike and interpret the “scabs” list

from the perspective or understanding of the reasonable

reader.

App. 14

As in Letter Carriers, our initial step is to examine the

commonly understood definitions of “scab” and “strike.”

The pertinent definition of “scab” for this case is “one

who refuses to strike or returns to work before a strike

has ended.”” Likewise, the commonly understood defini-

tion of “strike” in a labor context is “a temporary stop-

page of work by a body of workers designed to enforce

compliance with demands (as changes in wages, hours, or

working conditions) made on an employer.”8 It is undis-

puted that the 1989 sympathy strike was designed to

enforce compliance with such demands.

Thus, under the undisputed facts here, a reasonable

reader of ALPA’s list of “The Scabs of Eastern of the

Strike of ’89” would interpret it as a list of those pilots

who crossed the union’s picket lines and worked during

the 1989 work stoppage. Because these pilots admit they

crossed picket lines to work during that 1989 work stop-

page, ALPA’s listing them as “scabs” was factually true

7 The various definitions of a “scab” in the labor context

are: “(1): one who refuses to join a union (2): a member of a

union who refuses to strike or returns to work before a strike

has ended (3): a worker who accepts employment or replaces a

union worker during a strike (4): one who works for lower

wages than or under conditions contrary to those prescribed by

a union.” Webster’s Third New International Dictionary 2022

(1986). The definitions quoted are from the 1986 version of the

dictionary, which was the current version when the “scabs” list

was published in 1991. The definitions remain unchanged in the

1993 version of the same dictionary. See Webster’s Third New

International Dictionary 2022 (1993).

8 Webster’s Third New International Dictionary 2262

(1986).

App. 15

and the district court correctly granted summary judg-

ment on their libel claims for failure to show falsity.? No

reasonable jury could find otherwise.

The pilots argue that ALPA was never legitimately on

strike because it failed to conduct a formal secret ballot of

its membership as required by ALPA’s Constitution and

By-Laws. Contending the strike was illegally called, the

pilots assert that there was no valid strike, that they

cannot be considered to have worked when their union

was striking, and thus that they cannot be considered as

“scabs.”

The pilots argue that falsity should be assessed in

this case based on the technical, legalistic definition of

“strike” and whether this “strike” was called legally

under ALPA’s Constitution and By-Laws. Their argu-

ment, however, misses the whole point of Letter Carriers,

Linn, and Bresler’s mandates to consider the surrounding

circumstances and reasonable understanding of the sup-

posedly defamatory remarks and not the strictly legalistic

or literal interpretation of the words used. It is undis-

puted that the strike called by ALPA’s leadership resulted

in a massive union work stoppage; that there were union

picket lines; that as many as ninety percent of Eastern

9 The district court ruled that “the listing of the Plaintiffs on

the scab list either is not a matter of fact, or is indeed factually

correct. By common parlance, a ‘scab’ is ‘one who works for less

than union wages or on nonunion terms.’ ” 836 F.Supp. 1575,

1581 (S.D. Fla. 1993) (citing Webster’s New Collegiate

Dictionary 1021 (1979)). Because all Plaintiffs crossed picket

lines, the district court further held that all Plaintiffs “crossing a

picket line during a sympathy strike constitutes working on

nonunion terms.” Id.

App. 16

pilots refused to fly for Eastern initially; that a strike

committee was set up and local communication centers

were operating; that Plaintiffs returned to work during

that work stoppage; and that the majority of pilots actu-

ally supported and voted overwhelmingly to continue

ALPA’s leadership’s called work stoppage. Even though

the pilots now contend that ALPA’s leadership should

have had a full membership vote by secret ballot first, it

is undisputed that its union pilots actually struck Eastern

and a massive work stoppage occurred. As a reasonable

reader would have understood, a “scab” of “Eastern of

the Strike of ‘89” was a person who returned to work

during the well-publicized 1989 pilots’ massive work

stoppage designed to enforce compliance with demands

made on an employer. The truth or falsity of the label

“scab” turns not on a highly formalistic, legal analysis of

the validity of the strike itself under ALPA’s constitution

but on a reasonable reader’s perception of this work

stoppage as a “strike.” Thus, ALPA’s describing Plaintiffs

as “scabs” was not false.

Supreme Court precedent explicitly supports this

conclusion. In Letter Carriers, addressing a union's allega-

tion that the plaintiffs were guilty of “treason,” the

Supreme Court explicitly explained that the union’s

charge was not “false” merely because the plaintiffs were

not guilty of “treason” in the technical sense. 418 U.S. at

285-86. Likewise, in Bresler, the Court explained that an

allegation that the plaintiff had committed “blackmail”

should be read in context as a statement that the plain-

tiff’s bargaining position was unreasonable — not an accu-

sation that the plaintiff had actually committed the

criminal offense of blackmail. 398 U.S. at 14.

RSE tis ach SORE

se _

App. 17

Similarly, ALPA’s listing of these pilots as “scabs”

duriing the 1989 strike was not an accusation that ALPA’s

leadiership called the sympathy strike in the strict, legal

manner provided for under its Constitution and By-Laws,

its Administrative Manual, and its other rules. Instead,

placing these pilots on the “scabs” list was an allegation

that they worked during the union’s called work stop-

page and was factually true. A reasonable reader would

undierstand the pilots on ALPA’s “scabs” list to be the

pilotts who returned to work across union picket lines

duriing the 1989 work stoppage.'° In assessing falsity of

“scaibs” in this libel suit, how a labor strike must be called

under a particular union’s constitution, by-laws, and

rules, and whether this labor strike was legally called

thereunder are simply not part of the generally accepted

defimitions of a “scab” or a “strike” that inform the anal-

ysis in a libel claim - much less a part of the reasonable

reader’s concern in reading the 1989 “scabs” list."

10 It strains credulity, as suggested by the dissent, that in

the face of the massive work stoppage of 1989, the picketing, the

polls of the pilots in favor of the strike, and the communications

from ALPA about the ongoing nature of the strike that a

reasonable reader would infer the suggestion of a strike called

in strict conformance with ALPA’s constitution simply because

it wa‘s a union that used the term “scab.” Additionally, there is

no ewidence in this record that any ALPA member during the

coursie of the 1989 strike sought an injunction to halt the strike

as illlegally called under ALPA’s constitution, but instead

ALPA’s pilots overwhelmingly voted to support the strike and

actually struck Eastern.

‘1 We found no published case applying Letter Carriers

where defamation liability was imposed based on a “scab”

allegation during an admitted labor dispute — much less on the

dissemt’s novel theory that even though a strike occurred, the

ita

App. 18

C. Strike Was Lawfully Called

In any event, the district court correctly held that

ALPA’s 1989 sympathy strike was lawfully called. ALPA’s

constitution does provide that members “will be bal-

loted” before a “suspension of service” and that the

majority vote of the MEC is required before “a strike vote

of the members.” !2 This provision is general and does not

lack of a validly called strike renders a “scab” allegation false as

a matter of law. The truth of the “scabs” list depends not on the

legal validity of the strike but upon the reader’s perception of

the existence of a labor dispute, such as a strike, and of whether

Plaintiffs-Appellants opposed the union during the labor

dispute, such as by returning to work across union picket lines.

As quoted above, the commonly understood definition of a

strike is not a legalistic definition but is “a temporary work

stoppage by a body of workers designed to enforce compliance

with demands .. . made on an employer.” See footnote 7 infra.

12 ALPA’s Constitution provides in Article I:

SECTION 25 - SUSPENSION OF SERVICE

When a suspension or withdrawal of service is called

for in compliance with the requirements of the

Constitution and By-Laws or the Policy Manual, the

members will be balloted before such action may be

taken. Association general balloting procedures will

be used.

Article IV, Section 2(B), provides:

SECTION 2 - JURISDICTION AND DUTIES OF

MASTER EXECUTIVE COUNCIL

B. The approval by a majority vote of the Master

Executive Council on an airline with the advice of the

President [of ALPA] is mandatory before a strike vote

of the members of an airline may be taken. This

membership strike vote shall be by secret ballot....A

simple majority of valid ballots returned shall govern.

App. 19

distinguish between primary strikes and sympathy

strikes.

However, ALPA’s constitution also (1) vests its Board

of Directors with authority to control and manage the

business affairs of ALPA; (2) charges the Board with the

authority to interpret and apply the terms of ALPA’s

constitution; and (3) provides that in the event of any

dispute about the intent or meaning of its constitution,

the Board’s interpretation of the constitution shall gov-

ern.!3 ALPA’s Board is also authorized to develop internal

ALPA policies, which are contained in its Administrative

13 Article VII, Section 2, provides:

SECTION 2 - JURISDICTION AND DUTIES

The Board of Directors is the highest governing body

of the Association. It shall be vested with the control

of the Association, its general management and

business affairs. Its decision, whether rendered by

ballot or in session, shall be the final governing

decision of the Association and shall be binding on

the Executive Board, the Executive Committee, the

Officers, and all members of the Association, subject

to action of the Executive Board pursuant to Article V,

Section 2, of this Constitution and By-Laws. The

Secretary of the Association shall ballot the Board of

Directors on any issue when petitioned by fifteen

percent (15%) of the Board of Directors. In the event

of any dispute arising out of the meaning or intent of

these Constitution and By-Laws, the Board of

Directors shall have the power to interpret the

Constitution and By-Laws and such interpretation

shall govern the Association in the conduct of its

business and affairs.

App. 20

Manual and are binding on all ALPA members. In partic-

ular, a section entitled “Strike Policy” in that Manual

gives the MEC authority to declare a sympathy strike:

D. PICKET LINES IN THE EVENT OF A

STRIKE SOURCE - Board 1966; AMENDED -

Board 1986

1. The decision to honor or not honor picket lines of

other crafts shall be left to the discretion of the

President and the MEC of the carrier involved.

2. No ALPA member shall cross another ALPA

member’s picket line in order to do struck work.

ALPA Administrative Manual, Part 4, Section D

(emphasis added).

This Strike Policy has remained essentially

unchanged since 1966. The unrebutted evidence in this

case shows that for the past thirty years ALPA consis-

tently has applied its constitution and this Strike Policy in

the same manner as it did during the Eastern ALPA

sympathy strike and has called sympathy strikes without

a membership vote first.'* The general language of this

14 As Seth Rosen, ALPA’s long-time Director of Represen-

tation, stated: :

In my employment with ALPA over the last 25 years,

I have been involved in or had close personal knowl-

edge of a number of occasions on which ALPA

decided to engage in sympathy strikes. In particular,

I have personal knowledge of the following occa-

sions on which ALPA decided to engage in sympa-

thy strikes:

App. 21

ballot provision has been interpreted by ALPA’s Board

for thirty years to apply to only primary strikes and

Year Air Carrier Primary Strike By

1971-72 Hughes Air Corp. Aircraft Mechanics

d/b/a Air West Fraternal Ass’n

1973 Ozark Air Lines Aircraft Mechanics

Fraternal Ass’n

1974 Saturn Airways Int’l Bhd. of Teamsters

1977 Trans Int’! Airlines Int’l Bhd. of Teamsters

1979 Ozark Air Lines Ass’n of Flight

Attendants

1985 Pan American World _ Transport Workers

Airways Union

To the best of my knowledge, on none of the above

listed occasions was a vote of ALPA members taken

for the purpose of authorizing the decision to engage

in a sympathy strike. Indeed, I am not aware of any

occasion on which a vote of ALPA members was con-

ducted for the purpose of authorizing a sympathy strike.

(emphasis added). In contrast, Mr. Rosen stated that ALPA’s

general practice has been to ballot members only prior to

conducting a primary strike.

App. 22

not to secondary strikes, also known as sympathy

strikes.!5

The district court correctly held that ALPA’s long-

standing interpretation of its own governing documents

is entitled to considerable judicial deference, subject to

15 J. Randolph Babbitt, the current president of ALPA,

testified at his deposition:

It is our practice here for a primary strike to follow

the procedures set forth in the Constitution and

Bylaws. It is equally our practice, if there is a

secondary strike, there is specific language that

directs us in the Policy Manual to a different set of

procedures and we would follow those.

John Bavis, who had twenty-four years of experience at ALPA

and is a former chairman of the Eastern MEC, similarly testified

at his deposition:

If what you are asking me is did we actually do a

strike vote of the membership under paragraph B, my

answer to you is no. However, the authority and duty

to [sic] the MEC is contained in all of this section. And

B talks about a primary strike, which could be the

pilots’ own strike on the property. It is silent here in

this particular section you’re talking about dealing

with the question about a secondary strike. You have

to go to the Administrative Manual to find out what

the process is to follow. And when you do that, it says

in words to the effect that the president in conjunction

with the MEC is the decision-making factor to honor

another craft’s picket line on your property. It takes

both of those constituent bodies to agree.

The literal words say strike vote of the members of

airlines may be taken. It refers to a primary strike on

the property. Even though the word primary isn’t

there, that is the intent of the particular paragraph.

App. 23

judicial review only if “patently unreasonable” or

adopted in bad faith. See Dow v. United Bhd. of Carpenters

and Joiners, 1 F.3d 56, 58 (1st Cir. 1993); Local 1052 United

Bhd. of Carpenters & Joiners v. Los Angeles County Dist.

Council of Carpenters, 944 F.2d 610, 613 (9th Cir. 1991); Air

Wisconsin Pilots Protection Comm. v. Sanderson, 909 F.2d

213, 218 (7th Cir. 1990); Newell v. International Bhd. of Elec.

Workers, 789 F.2d 1186, 1189 (5th Cir. 1986). Judicial defer-

ence is particularly appropriate in this libel case where

ALPA’s interpretation is consistent with its well-estab-

lished past practices for sympathy strikes, where most

pilots participated in the leadership’s called strike, where

the pilots subsequently voted overwhelmingly in August

1989 to continue the strike, and where ALPA’s constitu-

tion provides that the Board’s interpretation shall govern

in the event of dispute. The district court correctly

deferred to ALPA’s interpretation of its governing docu-

ments. Even if ALPA’s interpretation were somehow

incorrect, the record contains no evidence that ALPA’s

thirty-year interpretation is patently unreasonable or that

it was adopted in bad faith.!¢

'e The dissent describes ALPA’s interpretation as “simply

ridiculous” and “implausible.” There are common sense

arguments why union members would want a membership vote

for all types of strike. However, the question here is not what we

think is best or what pilots likely would insist upon before a

sympathy strike is called. Instead, the question is what actually

happened in this case and whether this Court should defer to

ALPA’s interpretation of its own constitution under the specific

uncontested facts in this record.

App. 24

In sum, we find that the pilots have not shown that

ALPA’s sympathy strike was unlawfully called. At a min-

imum, there is insufficient evidence that ALPA’s inter-

pretation of its constitution is patently unreasonable or

adopted in bad faith.

D. No Jury Issue Regarding Actual Malice

Independently of the above reasons, all Defendants

are also entitled to summary judgment on the libel claim

because the pilots have produced insufficient evidence of

“actual malice.” Indeed, the evidence establishes that

Defendants reasonably believed these pilots were “The

Scabs of Eastern of the Strike of ’89” because they undis-

putedly crossed ongoing picket lines during the sympa-

thy strike. At a minimum, the record is devoid of

evidence to support a jury finding that the pilots proved

by clear and convincing evidence that Defendants knew -

or were reckless about whether — they were “The Scabs of

Eastern of the Strike of ’89.” Similarly lacking is any

evidence that Defendants knew or were reckless about

whether readers would strictly construe the terms

“scabs” and “strike” according to technical definitions

rather than the common understanding of workers who

cross picket lines during a work stoppage.

The inquiry in a case involving actual malice is not

whether the defendants acted negligently or imprudently

in publishing the challenged statements. See Masson, 501

U.S. at 510; St. Amant v. Thompson, 390 U.S. 727, 731

(1968). Rather, a defamation plaintiff must establish that a

defendant acted with a “high degree of awareness

of . . . probable falsity” of factual statements or in fact

App. 25

“entertained serious doubts as to the truth of his publica-

tion.” Masson, 501 U.S. at 510 (citations omitted); St.

Amant v. Thompson, 390 U.S. at 731; Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974); accord Harte-Hanks Communica-

tions v. Connaughton, 491 U.S. 657, 667 (1989); Bose Corp. v.

Consumers Union, 466 U.S. 485, 511 n.30 (1984).

This actual-malice standard requires a plaintiff to

establish by clear and convincing evidence, Masson, 501

U.S. at 510; Anderson, 477 U.S. at 254, that “the defendant

realized that his statement was false or that he subjec-

tively entertained serious doubt as to [its] truth.” Bose,

466 U.S. at 511 n.30; see Holbrook v. Harman Automotive,

Inc., 58 F.3d 222, 226 (6th Cir. 1995); Clyburn v. News World

Comm. Inc., 903 F.2d 29, 33 (D.C.Cir. 1990).?7

Here, there is no evidence, let alone sufficient evi-

dence to meet the clear and convincing standard, that

Defendants subjectively believed the strike was illegally

called and therefore it would be inaccurate to describe

the pilots as “scabs.” First, it is important to note the

parties have never suggested that anyone contested the

legality of the strike while it was ongoing. Each individ-

ual Defendant testified that he considered the pilots who

crossed ALPA’s picket lines to be “scabs” because they

abandoned the ALPA sympathy strike, took the jobs of

striking pilots, and sided with Eastern during the strike.

17 Tll-will, improper motive or personal animosity plays no

role in determining whether a defendant acted with “actual

malice.” See Masson, 501 U.S. at 510 (“Actual malice . . . should

not be confused with the concept of malice as an evil intent or a

motive arising from spite or ill will.”); Rosenbloom v. Metromedia,

Inc., 403 U.S. 29, 52 n.18 (1971) (same).

App. 26

These ALPA officials also testified, without contradiction,

that they in fact believed that the Eastern MEC and

ALPA’s President properly authorized the pilot sympathy

strike pursuant to ALPA’s Strike Policy. Given ALPA’s

thirty-year-old written policy and consistent practice of

initiating sympathy strikes without a formal membership

vote, and given that the majority of the pilots actually

struck against Eastern, participated in a massive work

stoppage, and later voted in favor of continuing the

strike, there is no evidence that the ALPA Defendants

entertained serious doubts about whether these pilots

were accurately described as “scabs.” Therefore, we

affirm the district court’s summary judgment order on

the libel claim because the pilots failed to show both a

false statement and actual malice.

E. Pilots Who Flew for Eastern Only After

August 6

The district court also correctly rejected the separate

argument made by a group of pilots who crossed the

union picket lines only after the union meeting on August

6 (the “post-August 6 crossover pilots”).18 These pilots

18 Plaintiffs divide themselves into three groups by dates.

Plaintiffs in Group III never honored the ALPA picket lines and

worked throughout the strike. Plaintiffs in Group II crossed

ALPA’s picket lines between March 4, 1989, and August 6, 1989.

Groups II and III allege only that they were defamed by being

placed on the “scabs” list because no membership strike vote

was taken, rendering ALPA’s sympathy strike invalid and

illegal.

In contrast, Plaintiffs in Group I crossed ALPA’s picket lines

only after the Miami-based pilots’ meeting on August 6, 1989.

App. 27

contended that they could not be described accurately as

“scabs” because even if ALPA’s leadership legally called

the sympathy strike on March 3, 1989, MEC Chairman

Bavis instructed them “to return to work” on August 6,

1989.

The audiotape of the August 6 meeting shows that

Bavis prefaced certain remarks by stating that he was

“[s]peaking just as Jack Bavis, the pilot,” not as “your

elected representative[ ],” and that Bavis and every other

speaker at the August 6 meeting emphasized that the

Eastern pilot group had to maintain its unity and abide

by the decision of the majority. Such personal opinions in

the course of a debate do not remotely constitute official

“instructions” to break ranks and cross picket lines to

return to work on an individual basis. As the audiotape

of the August 6 meeting also shows, Bavis made plain

that “I’m not going to go back to work personally, unless

we all go back to work in the cockpit. . . . I’m not gonna

go back to work and cross the picket line.” “[R]egardless

of what the outcome is in terms of the decisions we make

as a group,” Bavis explained, “we’ve made them as a

group coming out, we make them as a group going back.”

The Group I Plaintiffs allege that they did not cross IAM’s picket

lines until told to return to work on August 6 by officers of

Defendant ALPA and the Chairman of the Eastern MEC. Thus,

even if the sympathy strike was validly called initially, the

Group I Plaintiffs make the additional argument that the union

leadership acted with actual malice toward them by calling

them “scabs” after telling them to return to work on August 6,

1989.

App. 28

Despite the existence of this audiotape, a jury issue

still exists about what Bavis actually said at the August 6

meeting because the audiotape was not an official record-

ing of the meeting and seventeen pilots filed affidavits

stating that Bavis urged pilots to return to work at the

August 6 meeting.!9

However, even though a jury issue exists about what

Bavis actually said on August 6, there is no question of

fact about what actually happened after that August 6

pilot meeting. It is undisputed that from then until

November 22, 1989, the work stoppage continued, East-

ern pilots in uniform continued to walk picket lines, the

sympathy strike continued, and the pilots continued to

cross picket lines and to work. Indeed, it is not disputed

that throughout the rest of August 1989, ALPA, the East-

ern MEC, and the Eastern MEC’s strike operations com-

mittee repeatedly instructed all pilots to remain on strike.

Between August 6 and August 9, the Eastern MEC and

the overwhelming majority of the pilot group also voted

to continue the strike. ALPA and the Eastern MEC noti-

fied every Eastern pilot of this decision. ALPA President

Duffy notified all ALPA pilots by letter of the MEC’s

decision. As Duffy explained:

19 The dissent points to an ALPA newsletter and charges

preferred against Bavis as evidence of what was said at the

August 6 meeting. However, the newsletter and the charges

were not contemporaneous with any confusion about the strike

that may have occurred in the meeting on August 6, 1989.

Instead, the newsletter was published in 1992, and the charges

were in December 1989 — both well after the official conclusion

of the strike on November 22, 1989.

App. 29

Over the past week . . . the Eastern pilots have

reviewed their options and have voted over-

whelmingly not to return to work without a

structured settlement of the sympathy strike.

On August 12, 1989, the strike operations committee like-

wise confirmed that “THE STRIKE IS ON!! THE PICKET

LINE REMAINS!!” The record contains evidence of how

the pilots’ overwhelming vote to remain on strike was

widely reported in the media and in internal ALPA com-

munications.

Accordingly, by August 12, 1989, both the Eastern

MEC and the overwhelming majority of Eastern pilots

had voted to continue the pilots’ sympathy strike. Both

the Eastern MEC and ALPA notified all Eastern pilots

that ALPA and the MEC had considered and rejected the

option of terminating the strike. From August 12, 1989,

until the end of the sympathy strike in November 1989,

the Eastern MEC continued to direct all pilots to maintain

the picket lines, and, more importantly, Eastern pilots

continued to walk the picket lines in their Eastern uni-

forms.

As outlined above, the test is not what these post-

August 6 crossover pilots thought but what Defendants

subjectively knew. The test is not whether these pilots

thought they were instructed to return to work and

whether they thought the strike was over, but whether

Defendants included the post-August 6 crossover Plain-

tiffs on the “scabs” list knowing the strike had ended on

August 6. These pilots cannot show the Defendants knew

the strike had been terminated because it is undisputed

that after August 6, the work stoppage continued and

Eastern pilots picketed until November 22, 1989. More

App. 30

importantly, even_if these pilots took Bavis’s remarks to

be official instructions from ALPA to return to work, their

subjective impression that they had ALPA’s consent to

cross pilot picket lines does not establish actual malice. It

is Defendants’ subjective view, not the pilots’, that deter-

mines whether the “scabs” list issued with actual malice.

We also disagree that actual malice is shown because

ALPA knew that many pilots returned to work after

August 6 and that ALPA’s failure to consider the practical

effect of Bavis’s statements on these pilots may constitute

reckless disregard of the truth. Bavis’s statements did not

‘occur in a vacuum but as part of a series of ongoing

events. Shortly after the August 6 meeting, the vast

majority of pilots voted to continue the strike, and on

August 12, the union unequivocally announced, “THE

STRIKE IS ON!!” Thus, any practical effect of Bavis’s

statements lasted only until August 12. These particular

pilots continued to work after August 12 through the end

of the strike in November, and no reasonable jury could

find the strike still appeared to be over after August 12 -

much less that Defendants were reckless about such

appearance.

Thus, the post-August 6 crossover pilots have failed

to present any evidence from which a reasonable juror

could conclude that the ALPA Defendants believed it was

false to refer to them as “scabs.” At a minimum, there is

insufficient evidence to establish actual malice by clear

and convincing evidence.

App. 31

V. APPELLANT NORMAN

Appellant Joseph S. Norman, II, advances pro se an

additional argument that ALPA acted with malice as to

him.?° According to Norman, he crossed the picket lines

to participate in Eastern’s pilot training program, not to

work as a pilot. Consequently, Norman argues that he

never “worked” in violation of the strike and thus was

not a scab. He cites a case holding that trainee pilots are

not “permanent employees” for purposes of the Railway

Labor Act. See Eastern Air Lines, Inc. v. Air Line Pilots

Ass'n Int'l, 920 F.2d 722, 727 (11th Cir. 1990).

Norman’s contentions lack merit. The record shows

that Norman was hired by Eastern as a DC-9 Captain and

received compensation while in training. One of his job

requirements was to participate in the pilot training pro-

gram. Under these circumstances, Norman was “work-

ing” for Eastern in the ordinary sense of the term. It is

this colloquial use of “working” - and not Norman’s legal

classification under the Railway Labor Act - that is rele-

vant in determining whether “scab” can be applied to

him. Consequently, ALPA had no additional reason to

20 Norman also contends that he was not served with

ALPA’s motion for summary judgment at least ten days before

the hearing thereon, as required by Fed.R.Civ.P. 56(c). See United

States v. One Colt Python .357 Cal. Revolver, 845 F.2d 287, 289

(llth Cir. 1988). The record, however, establishes that the

required notice was served upon Norman’s counsel nine

months prior to the hearing. The fact that Norman subsequently

began proceeding pro se - after service upon his counsel but

prior to the district court’s ruling on the motion - does not

invalidate the notice served while he was represented by

counsel and thus does not necessitate a second service.

App. 32

know that Norman was not a scab; his situation is there-

fore no different from that of all the other pilots?} who

worked despite the strike.?2

VI. CONCLUSION

For these reasons, we affirm the district court’s grant

of summary judgment in favor of all Defendants on all

Plaintiffs’ libel claims and affirm the dismissal of Plain-

tiffs’ claim for intentional interference with their business

relationships.

AFFIRMED.

TJOFLAT, Circuit Judge, concurring in part and dissent-

ing in part:

“Scab” in the labor context is a pejorative term that

frequently carries with it the threat of harm. See John P.

Ludington, Annotation, Defamation: Designation as Scab,

21 Norman began working for Eastern in May 1989, and

thus is not among the pilots who returned to work after August

6, 1989.

22 In light of this conclusion, we can also conclude that the

district court did not abuse its discretion in denying Norman’s

motion for severance.

App. 33

65 A.L.R.4th 1000, 1009-10 (1988).1 William West discov-

ered exactly what kind of harm when he decided not to

1 The Oxford English Dictionary (the “OED”) contains a

compilation of the uses of the word scab in a labor context. The

first known use occurred in 1777, “[t]he Conflict would not been

[sic] so sharp had not there been so many dirty Scabs; no Doubt

but timely Notice will be taken of them.” Oxford English

Dictionary 550 (1989). Other uses of the term scab the OED cites:

“[t]he offending member was then termed a scab and wherever

he was employed no others of the society were allowed to

work;” “[t]he man who takes the place of another when that

other engages in a struggle with a corporation is a ‘scab’;” “[t]he

scabs soon found out what it was like to be hated;” “Having

thus given the characteristics and conditions of the ‘legal,’ or

honourable trade, I next turn my inquiry to the state of the

labouring men, women, and children employed by the shop-

masters, who are distinguished from the ‘wages’ (or legal)

shops by the terms ‘illegal,’ ‘scab,’ or ‘slaughtershop’ keepers;” “If

there is a strike ordered I will be damned if I am going to scab;”

and “I won’t scab any man’s job.” See id. (citations omitted).

Probably the most famous use of the term scab is from a

poem generally attributed to Jack London entitled “Ode to a

Scab,” which appeared on the cover of the Air Line Pilots

Association (“ALPA”) publication:

After God had finished the rattlesnake, the toad,

and the vampire, He had some awful substance left

with which he made a SCAB. A SCAB is a two-legged

anima: with a corkscrew soul, a water-logged brain,

and a combination backbone made of jelly and glue.

Where others have hearts, he carries a tumor of rotten

principles.

When a SCAB comes down the street, men turn

their backs and angels weep in heaven, and the devil

shuts the gates of hell to keep him out. No man has a

right to SCAB as long as there is a pool of water deep

enough to drown his body in, or a rope long enough

to hang his carcass with. Judas Iscariot was a

App. 34

join his fellow Teamsters in striking United Parcel Service

(“UPS”) during the summer of 1997. Mr. West’s daughter,

Callie, was five years old at the time and suffered from

epilepsy and kidney problems. She had already under-

gone twelve operations. Because West did not strike, the

Teamsters, who controlled his medical insurance, cut off

Callie’s medical coverage. See Union Casualties, Wall St. J.,

Sept. 2, 1997, at Al18.

Rod Carter, a Miami-based UPS driver and Teamster,

also discovered what it meant to be labeled a scab during

the 1997 strike. While stopped at a traffic light, Carter

was pulled from his delivery truck by six men, beaten,

repeatedly called “nigger,” and stabbed five times with

an ice pick. See Hearing on S.230: The Freedom from Union

Violence Act Before the Senate Judiciary Comm., 105th Cong.,

at 100-01 (1997) (testimony of Rod Carter). Retaliation

against scabs that summer even extended into sympa-

thetic unions. In Houston, the president of the Police

Patrolmen’s Union, Terry Martin, told his members to “go

into a ‘zero tolerance’ mode, and do everything possible

gentleman compared with a SCAB. For betraying his

Master, he had character enough to hang himself. A

SCAB HASN'T!

Esau sold his birthright for a mess of ottage.

Judas Iscariot sold his Savior for thirt’ pieces of

silver. Benedict Arnold sold his country for a promise

of a commission in the British Army. The modern

strike-breaker sells his birthright, his country, his

wife, his children, and his fellow-men for an

unfulfilled promise from his employer, trust or

corporation.

App. 35

to get that UPS ‘scab’ truck off the road.” Stephen John-

son, Police Union Urges Members to Pull Over “Scab” UPS

Drivers, Hous. Chron., Aug. 7, 1997, at 1.

Lest one think the Teamsters are the only union that

harms scabs, here are two other examples. During a

United Auto Workers strike in Winchester, Virginia, strik-

ing workers vandalized the property of a woman they

targeted as a scab, fired a gun through her car window,

and left a bloody cow’s head on the hood of her car. See

Hearing on S.230: The Freedom from Union Violence Act

Before the Senate Judiciary Comm., 105th Cong., at 4 (1997)

(testimony of Reed Larson). Finally, in the midst of a

United Mine Workers strike, striking miners shot and

killed Eddie York for continuifig to work even though the

company he worked for was not the target of the United

Mine Workers strike. See id.

As these examples illustrate, in the labor context,

scab is a factual allegation with a specific definition and

consequences. See Old Dominion Branch No. 496, Nat'l

Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264,

284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745 (1974) [hereinafter

Letter Carriers] (stating that “the only factual statement in

the disputed publication is the claim that appellees were

scabs”). If this allegation is false and made with actual

malice, like any other factual assertion, it is defamatory.

Cf. id. at 283, 94 S.Ct. at 2780 (finding that “[rJather than

being a reckless or knowing falsehood, naming the appel-

lees as scabs was literally and factually true”). Because |

conclude that (1) the Air Line Pilots Association’s

(“ALPA”) allegation that they were scabs was false and

(2) a jury could find for either party on the issue of actual

App. 36

malice, I would hold that the district court erred in grant-

ing appellees summary judgment on appellants’ libel

claim.? I, therefore, respectfully dissent.3]

The Air Line Pilots Association (“ALPA”) is a labor

union that represents airline pilots from a number of

commercial airlines. Within each airline, ALPA operates

through a Master Executive Council (“MEC”), a board of

elected pilot representatives that makes union policy

decisions relating to that airline.

On March 4, 1989, the MEC at Eastern Airlines

decided that Eastern’s pilots should conduct a “sympathy

strike” in conjunction with a strike against Eastern by the

International Association of Machinists (“IAM”).4

Accordingly, the pilots were directed to stop working,

and not to return to work until such time as an agreement

was reached between IAM and Eastern. The sympathy

strike lasted until November 22, 1989, when the Eastern

MEC voted to end the strike (despite the fact that the

2 I agree with the majority, however, that the libel claim of

appellant Joseph S. Norman, II is insufficient as a matter of law.

Hence, in referring to appellants I exclude Norman.

3 I concur in the majority’s affirmance of the district

court’s dismissal of appellants’ claim, under Fed.R.Civ.P.

12(b)(6), that ALPA tortiously interfered with appellants’

business relationships with other airlines.

4 A “sympathy strike” occurs when members of a union

stop working to show support for another union that has a

grievance with management. See NLRB v. Peter Cailler Kohler

Swiss Chocolates Co., Inc., 130 F.2d 503, 505-06 (2d Cir. 1942).

— |

App. 37

IAM strike had not ended) and directed the pilots to

return to work.

After the conclusion of the sympathy strike, ALPA

produced and distributed a publication titled “The Scabs

of Eastern of the Strike of ‘89,” which listed the more than

two thousand pilots who allegedly refused to honor the

strike and crossed the machinist union’s picket lines to

fly for Eastern. The appellants in this case are pilots who

were on this list. They brought suit against ALPA,5 alleg-

ing, inter alia, that the publication of the list constituted

libel. The district court disposed of the libel claim on

summary judgment, concluding that the pilots had not

shown that the “scab” allegation was false, as required by

law.

II.

The majority, purporting to follow the Supreme

Court’s reasoning in Letter Carriers, concludes that

ALPA’s statement that appellants were scabs was factu-

ally true; and thus, the district court did not err in grant-

ing appellees summary judgment. The majority, however,

follows the Court’s reasoning in Letter Carriers in form

rather than substance. As in Letter Carriers, this case

involves a union calling people who oppose it scabs.

Unlike Letter Carriers, however, the pilots that crossed the

° The appellants also sued certain individual executives

in ALPA and in the Eastern MEC. I refer to all of the

defendants/appellees as “ALPA.”

App. 38

appellants were scabs) to be true, two conditions had to

be met: (1) appellants worked for Eastern and (2) they did

so while ALPA was on strike. It is undisputed that appel-

lants flew for Eastern. Because ALPA was never legally

on strike, however, appellants did not work during a

union strike. Thus, the statement that they worked dur-

ing a union strike, therefore were scabs, was false.

To succeed on a defamation claim based on state-

ments made during a labor dispute, a plaintiff must show

falsity and actual malice. A statement is false if it pro-

duces a different effect on the mind of the reasonable

reader than would the truth. See Masson v. New Yorker

Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 2432-33,

6 According to Webster’s, a “scab” is “(1): one who

refuses to join a union (2): a member of a union who refuses to

strike or returns to work before a strike has ended (3): a worker

who accepts employment or replaces a union worker during a

strike (4): one who works for lower wages than or under

conditions contrary to those prescribed by a union.” See

Webster’s Third New International Dictionary 2022 (1993); see also

ante at 12 n. 7.

The Court in Letter Carriers found the scab designation true

because the appellants refused to join the National Association

of Letter Carriers, and refusing to join a union is one definition

of scab. See Letter Carriers, 418 U.S. at 283, 94 S.Ct. at 2780. In this

case, the only possible definition of scab ALPA could have

intended to apply to appellants was that they worked during a

union strike. As discussed below, appellants did not violate a

legal union strike, therefore, the allegation that they were scabs

is false.

App. 39

115 L.Ed.2d 447 (1991). “Minor inaccuracies” do not make

a statement false. Id., 111 S.Ct. at 2433. The statement in

question here is that appellants were “scabs.” To deter-

mine if this statement was false, we thus look at whether

a “reasonable reader”? would have thought that ALPA,

by calling appellants scabs, meant that they were people

who worked during a union strike; or only meant to

engage in rhetorical hyperbole, suggesting in a general

sense that appellants were bad people. I agree with the

majority's answer to this question - ALPA meant literally

that appellants were people who worked during a union

strike.

I cannot, however, agree with the majority’s conclu-

sion that ALPA’s scab allegation was true. The reasonable

reader analysis dictated by Masson ends with the state-

ment that appellants were scabs; it does not extend to

determining whether ALPA was on strike. Yes, appellants

can only be scabs if ALPA was on strike. But, we do not

inquire whether ALPA was on strike based on the reason-

able reader’s perception. Rather, we determine whether a

union was on strike by looking to the rules that the union

established for itself in its constitution and by-laws.® If

7 Reasonable reader is a standard in defamation cases,

such as a reasonable person is a standard in negligence cases. I

do not, therefore, quote the term in the remainder of this

opinion.

8 The majority today turns labor law on its head by

finding that courts, when determining if a strike occurred, are

not to look at whether a union followed the rules and

procedures contained in its constitution and by-laws. Rather,

courts are to look at whether a reasonable reader would

perceive that the union was on strike. In other words, union

App. 40 ‘

these rules were not followed, the union was not on

strike. The majority at various times calls this approach

“highly, formalistic, legal analysis” and “technical [and]

legalistic.” See ante at 13-14. I agree. But the fact of the

matter is that ALPA’s Constitution and By-laws set forth

the requirements ALPA had to follow in order to call its

sympathy strike. ALPA did not follow its own rules;

therefore, ALPA was not legally on strike, and its allega-

tion that appellants were scabs, i.e., people who worked

during a union strike, was false.

_ Article I of the ALPA Constitution and By-Laws

states: “[w]hen a suspension or withdrawal of service is

called for ..., the members will be balloted before such

action may be taken.” The procedures for calling a strike

are spelled out in more detail in Article IV, which states:

The approval by a majority vote of the Master

Executive Council of an airline, with the advice

of the President [of ALPA], is mandatory before

a strike vote of the members of an airline may

be taken. This membership strike vote shall be

leaders can call strikes on their own initiative regardless of their

constitution’s requirement of majority vote, and the strike will

be “true” as long as people perceive it as such. Disregarding the

fact that such an oligarchical practice contradicts the primary

purpose of unions — democratizing the workplace — the majority,

with a straight face, declares that courts are not to consider the

“strictly legalistic or literal interpretation” of the word strike.

See ante at 1193. Why a United States Court of Appeals should

not be legalistic is unclear to me. Should a forest have no trees?

App. 41

by secret ballot. ... A simple majority of valid

ballots returned shall govern.

Reading these provisions together, it appears indisputa-

ble that the ALPA Constitution and By-Laws requires a

vote of the membership before a strike may be called.

ALPA, however, provides us with two alternative

readings of these provisions. The first is that they are

discretionary — in other words, they detail the procedures

to be followed if a strike vote is taken, but do not man-

date that such a vote be taken before a strike is called.

While this approach may be plausible as to the Article IV

provision, it is entirely incompatible with Article I, which

states that “members will be balloted” (emphasis added)

before a strike is called. Second, ALPA suggests, and the

majority agrees, that the voting provisions in the Consti-

tution and By-Laws apply only to primary strikes, and

not to sympathy strikes. This interpretation is simply

ridiculous. As an initial matter, this interpretation strains

the English language; under ordinary rules of grammar,

where a noun is left unqualified, it applies without quali-

fication. For example, if a person says that “the cars in

the fire lane are illegally parked,” we can safely assume

that he is referring to all of the cars in the fire lane. It

would be nonsense for him later to claim that he was

referring only to the blue cars, and not the green ones.

Nothing in the text or context of the statement suggests

that “cars” applies only to cars of a certain color. Like-

wise, there is nothing in the text of the Constitution and

By-Laws that distinguishes among types of strikes —

understandably so, given that a strike has the same

impact on labor and management regardless of the reason

why it is called - and it is therefore unreasonable for

App. 42

ALPA now to claim that the strike provisions in its Con-

stitution and By-Laws refer only to primary strikes. Fur-

thermore, if a union were to distinguish between the two

types of strikes, it would be far more logical to require a

membership vote for a sympathy strike than for a pri-

mary strike: whereas workers may benefit directly from a

primary strike (through a renegotiated contract), the only

benefits they could gain through a sympathy strike

would be indirect and speculative. Therefore, even if

substantial deference is afforded ALPA’s interpretation of

its own governing documents, see Dow v. United Bhd. of

Carpenters and Joinders of Am., 1 F.3d 56, 58 (1st Cir. 1993),

a membership vote was required before a strike could

commence.? Because no such vote was taken,!° the strike

was invalid.

9 The majority points out that, for over thirty years, ALPA

has interpreted its Constitution and By-Laws as not requiring a

membership vote for a sympathy strike. This tells us merely that

ALPA’s interpretation has been consistent, not that it is

reasonable. Equally irrelevant to the question of the legality of

the strike is the fact that ALPA’s interpretation is included in

ALPA’s Administrative Manual; the ALPA Board of Directors

(the author of the manual) has the power to interpret and apply

the ALPA Constitution, but not to ignore it. Otherwise, the

Constitution and By-Laws would be no more than default

provisions, subject to revision at the whim of the Board of

Directors.

10 ALPA members were polled two weeks prior to the

strike declaration to see whether they would honor an IAM

picket line. This was clearly an attempt by ALPA to gauge the

feelings of its members; it was not —- as ALPA properly concedes

- the equivalent of a membership vote on whether ALPA should

strike. The significance of this poll is discussed at greater length

in part II.B.1, infra.

App. 43

y 5

Appellees argue that the strike was legal even though |

not properly authorized because the pilots of Eastern did

in fact engage in a strike in which the appellants did not

participate. This argument, however, fails adequately to

account for the context in which the “scab” allegation is

being made. It is true that in the context of an ordinary

wildcat strike (in which a group of workers decides on its

own to stop work), the charge of “scab” made by a

striking worker to another worker who does not join the

strike may well be accurate despite the lack of official

union authorization. This case, however, presents a very

different situation. In this case, we must assume that

ALPA intended, through the publication of the scab list,

to convey that its strike was legal. A contrary assumption

would mean that ALPA published a list of all the pilots

who worked during a strike it illegally ordered. Although

it is theoretically possible that ALPA wanted to convey

such a message, it is highly unlikely, for such a message

would only harm the union.

Further, the scab list was distributed to pilots at other

airlines and was - by ALPA’s own admission — intended

to make it difficult for the named pilots to obtain employ-

ment with other airlines. If the strike was illegally called,

pilots’ inclusion on the scab list would provide no basis

for denying them employment. On the contrary, a pilot’s

refusal to participate in an illegal strike, called by union

bosses acting outside the scope of their authority, would

make the pilot a more attractive candidate for employ-

ment. Inclusion on the scab list would in no way demean

the character of the persons so included, but would

instead be a badge of honor.

App. 44

Thus, in the context of this case, the scab allegation

makes sense only if the strike was legally called, because

only then would inclusion on the scab list carry a nega-

tive connotation. It was therefore a necessary assumption

of the persons reading the scab list that the strike was

legally called. This assumption was buttressed by the fact

that the scabbing charge was being made by the union, in

a publication distributed by the union pursuant to a

formal union resolution.'? Under those circumstances, a

reasonable reader undoubtedly would assume that the

persons on the scab list had refused to participate in a

valid, union-authorized strike. This assumption, how-

ever, was false. As demonstrated in the preceding section,

the strike was not called in accordance with the union’s

Constitution and By-laws, and was therefore invalid.

Consequently, the scab allegation was false, and the

appellants have established the falsity element of their

libel claim.

1! On March 29, 1989 - about four weeks after the

beginning of the strike — the Eastern MEC unanimously

resolved “to publish a finalized list of strike-breaking pilots at

the conclusion of the ALPA sympathy strike” and “to bring

Article VIII charges against all strike-breakers in accordance

with [the] ALPA Constitution and By-Laws.” Article VIII of the

ALPA Constitution and By-Laws outlines the procedures for

disciplinary actions by the union against its members and the

grounds on which such actions may be brought. Under Article

VIII, any member may be disciplined, fined, or expelled for

working during an ALPA strike. ALPA’s Administrative Manual

further explains that any ALPA member who “participates in

strikebreaking by actually flying the airplanes of an airline ona

legal ALPA-sanctioned strike shall be automatically expelled

from membership in ALPA.” ALPA Administrative Manual

§ 65-12, at 271 (1993) (emphasis added).

App. 45

In addition to showing that the scab allegation was

false, the appellants, to succeed on their libel claim, also

must show that the allegation was made with actual

malice - in other words, that the allegation was made

knowing that it was false, or with reckless disregard as to

its accuracy. See New York Times Co. v. Sullivan, 376 US.

254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964); Letter

Carriers, 418 U.S. at 281-82, 94 S.Ct. at 2779-80 (extending

the New York Times framework to statements made during

labor disputes). “Reckless disregard,” in this context,

means that the defendant made the allegation despite

“entertain[ing] serious doubts as to the truth” thereof. St.

Amant v. Thompson, 390 U.S. 727, 730-31, 88 S.Ct. 1323,

1325, 20 L.Ed.2d 262 (1968). In this case, there are two

different theories — one argued by all appellants and one

only argued by the Group I appellants — concerning how

ALPA acted with actual malice. Each theory is discussed

in this section.

The appellants’ first theory is that ALPA acted with

malice because it knew that the strike was illegally called,

or at least had substantial doubts regarding the legality of

the strike, when it published the scab list. ALPA, in

response, maintains that it genuinely and without a

doubt believed that no membership vote was needed for

a sympathy strike, and thus believed that the individuals

App. 46

on the scab list were in fact scabs.!2 In support of its

position, ALPA points to its long-standing administrative

policy of not taking a membership vote prior to calling a

sympathy strike, and to the testimony of ALPA officials

that they believed the strike was properly authorized.}%

The appellants, meanwhile, contend that under the

circumstances it is highly improbable that ALPA actually

believed — at least without serious doubts — that it had the

power to call a strike without taking a vote of the mem-

bership. See generally Hunt v. Marchetti, 824 F.2d 916, 919

(11th Cir. 1987) (noting that malice may be inferred from

circumstantial and indirect evidence). Four arguments

support their contention.

First, the appellants point out that the requirement of

a membership vote is patently evident from ALPA’s own

Constitution and By-Laws. Assuming, therefore, that the

ALPA leadership read its own Constitution, it must have

known that a vote was required. This seems a fair

assumption considering the substantial legal significance

given to voting rights contained in a union’s Constitution

and By-laws. Federal law provides a cause of action

12 When I speak of what ALPA “believed,” I am referring

to the beliefs of the ALPA officials responsible for the

publication of the scab list. See New York Times Co., 376 U.S. at

287, 84 S.Ct. at 730.

13 The majority apparently finds this evidence to be

credible, and therefore concludes that ALPA did not act with

malice. There is, however, substantial evidence (discussed later

in this subsection) that ALPA, despite its assertions to the

contrary, knew that the strike was invalidly called. The

weighing of conflicting evidence is a matter within the province

of the jury, not this court.

App. 47

against a union for denying a member the right to vote, if

the right to vote is contained in the union’s Constitution

and By-laws. See 29 U.S.C. § 411(a)(1) (1994); Christopher

v. Safeway Stores, Inc., 644 F.2d 467, 470 (5th Cir. Unit A

May 1981). ALPA is no stranger to this cause of action; it

has been sued on the basis of federal voting rights

requirements on numerous occasions, both before and

after the events giving rise to this lawsuit. See, e.g., Mi-

chelotti v. Air Line Pilots Ass'n, 61 F.3d 13, 14 (7th Cir.

1995); O'Neill v. Air Line Pilots Ass'n, Int'l, 886 F.2d 1438,

1447-48 (5th Cir. 1989), rev'd on other grounds, 499 U.S. 65,

111 S.Ct. 1127, 113 L.Ed.2d 51 (1991); Klemens v. Air Line

Pilots Ass’n, Int'l, 736 F.2d 491, 495 (9th Cir. 1984). Further,

State law generally provides for a breach of contract

action when a union violates the terms of its Constitution

and By-laws. See International Ass'n of Machinists v.

Gonzales, 356 U.S. 617, 618-19, 78 S.Ct. 923, 924, 2 L.Ed.2d

1018 (1958). Finally, and more generally, federal law

imposes a “duty of fair representation” on unions that

requires them always to act in their members’ best inter-

ests, see Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65,

74-76, 111 S.Ct. 1127, 1133-34, 113 L.Ed.2d 51 (1991); such

a duty suggests that unions are expected to be aware of

their constitutional obligations to their members. These

obligations include, I submit, the duty not to defame as

“scabs” members who refused to participate in an illegal

strike. In light of this body of law - and ALPA’s known

familiarity with it - it would be difficult for ALPA to

claim that it was unfamiliar with the voting requirements

contained in its own Constitution and By-Laws, or that it

honestly thought it could ignore the requirements of the

App. 48

Constitution and By-Laws on the basis of its internal

administrative policies.

Second, the idea that the union leadership would not

be required to poll the membership before calling a strike

is so implausible that it seems unlikely that ALPA actu-

ally believed it. See Hunt v. Liberty Lobby, 720 F.2d 631,

643-46 (11th Cir. 1983) (stating that implausibility may be

evidence of actual malice). It is hard to imagine an orga-

nizing campaign in which the union leaders say to the

workers, “come join our union, and we'll decide whether

you should work or strike, without asking you.” Such an

approach would deprive workers of any direct input into

the most important decision that a union makes. Further-

more, such a system would contain an enormous poten-

tial for corruption: management could avert a strike

simply by bribing a few individuals, without having to

respond to the demands of the union membership as a

whole. (Conversely, those same individuals could

threaten a strike — regardless of the sentiment of the

membership as a whole — in order to obtain a bribe from

management.) !4

Third, an opinion poll taken by ALPA two weeks

prior to calling the strike suggests that ALPA had serious

doubts regarding its power to call a strike unilaterally.

The poll consisted of questionnaires sent to all Eastern

‘4 The idea of concentrating so much power in the hands

of a tew individuals recalls Lord Acton’s oft quoted phrase,

“[plower tends to corrupt and absolute power corrupts

absolutely.” John Bartlett, Familiar Quotations 615 (15th ed.

1980).

App. 49

ALPA members asking them to choose among the follow-

ing options: (1) “I would honor an IAM picket line at

EAL”; (2) “I would not honor an IAM picket line at EAL”;

or (3) “My elected MEC representatives are best qualified

to make this decision, if and when an IAM strike occurs,

and I will abide by their decision.” The inclusion of the

third option is telling: if ALPA officials were confident of

their constitutional power to call a strike without taking a

membership vote, they would, at most, ask ALPA mem-

bers to choose between the first two options in order to

gauge the feelings of the membership prior to making

their decision. The availability of the third option could

lead a reasonable jury to conclude that ALPA knew (or at

least suspected) that it could not call a Strike on its own,

and that the purpose of the poll was to encourage the

members to abdicate their voting rights.

Finally, ALPA’s lack of investigation may suggest

actual malice. When there is no pressing need for imme-

diate publication of a defamatory allegation, actual mal-

ice may be inferred if the investigation given to the

allegation is grossly inadequate under the circumstances.

See Harte-Hanks Communications, Inc. v. Connaughton, 491

U.S. 657, 692-93, 109 S.Ct. 2678, 2698-99, 105 L.Ed.2d 562

(1989); Vandenburg v. Newsweek, Inc., 441 F.2d 378, 380 (5th

Cir. 1971).15 In this case, the allegation is very serious -

ALPA officials believed (and hoped) that by labeling the

appellants “scabs,” they would permanently prevent

‘5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

App. 50

them from obtaining employment with a commercial air-

line. See infra note 25. Under those circumstances, and

given the union’s duty of fair representation, the union

must conduct a substantial investigation before it decides

whether to distribute a scab list. Although ALPA thor-

oughly researched whether the listed individuals actually

crossed the IAM picket lines, there is no evidence that it

investigated the more foundational question of whether

its Constitution and By-laws required a membership vote

prior to calling a sympathy strike. For instance, there is

no evidence that ALPA consulted counsel for a legal

opinion regarding its authority to call a sympathy strike

without a vote of the membership.' In the absence of

such evidence, a jury reasonably could infer that ALPA

16 Had ALPA so inquired, its attorney may well have

concluded that any reading of the agreement that allowed union

officials to call a strike without a membership vote would be

void as against public policy, because such an interpretation

would create an environment in which corruption would be

likely to occur. Indeed, it was in response to such concerns that

Congress passed the Labor-Management Reporting and

Disclosure Act (“LMRDA”), 29 U.S.C. §§ 401-531 (1994) - which,

as discussed above, protects the rights of union members to vote

on union business when such a right is contained in the union’s

Constitution and By-laws. The LMRDA reflects a federal policy

favoring democratic conduct of union activity, out of a

recognition that the tremendous power given to labor unions

under federal law must be accompanied by democratic

safeguards to prevent corruption. See NLRB v. Allis-Chalmers

Mfg. Co., 388 U.S. 175, 180-81, 87 S.Ct. 2001, 2006-07, 18 L.Ed.2d

1123 (1967). In the words of Archibald Cox, a key participant in

the drafting of the LMRDA, “[a]n individual worker gains no

human rights by substituting an autocratic union officialdom

for the tyranny of the boss.” Archibald Cox, The Role of Law in

Preserving Union Democracy, 72 Harv. L.Rev. 609, 610 (1959).

App. 51

made the scab allegation with serious doubts as to its

accuracy.

In sum, under this theory, a reasonable jury could

find for either side on the issue of malice. The district

court therefore erred in granting summary judgment and

substituting its judgment for that of a jury.

Even if the scab allegation was not made with malice

as to all of the pilots (because ALPA actually and non-

recklessly believed that the strike had been called in

accordance with the ALPA Constitution and By-Laws), it

may nevertheless have been made with malice as to a

subset of the pilots. On August 6, 1989 - five months after

the beginning of the strike — the Eastern MEC called a

meeting of all Eastern ALPA members to discuss the

union’s course of action.!7 At the meeting, the chairman

of the Eastern MEC, Captain Jack Bavis, said that the

striking pilots should return to work. Within the next few

days, several of the appellants - known as the “Group I”

pilots —- returned to work for Eastern.18 Union officials

other than Bavis subsequently announced that the strike

was still ongoing, and ALPA did not formally conclude

the strike until November 22. The Group I pilots were

therefore included on the scab list.

'7 The meeting was held in Miami and was broadcast to all

other Eastern pilot bases.

18 The remainder of the appellants either never joined the

strike or ceased striking prior to August 6.

App. 52

This sequence of events raises the possibility that the

strike was officially concluded on August 6, 1989. If so,

and if ALPA knew this when publishing the scab list,

then ALPA acted with actual malice as to the Group I

pilots — even if it believed that the strike had been legit-

imately called in the first instance. In this section, there-

fore, I discuss (a) whether the strike was in fact

terminated on August 6, and, if so, (b) whether ALPA

knew this to be the case (or acted with reckless disregard

of the truth) when it accused the Group I pilots of being

scabs.

ALPA argues that the strike could not have been

concluded by Bavis’ August 6 remarks because Bavis did

not have the authority to end the strike unilaterally; that

decision had to be made by the president of ALPA and a

vote of the entire MEC. ALPA may well be correct in this

assertion;!9 however, Bavis’ lack of actual authority to

end the strike is irrelevant in light of his apparent author-

ity to do so. See North River Energy Corp. v. United Mine

Workers of Am., 664 F.2d 1184, 1192 (11th Cir. 1981) (noting

that acts of a union agent on behalf of the union commit-

ted within the scope of the agent’s apparent authority

“bind the union, regardless of whether they were speci-

fically authorized or ratified”). Apparent authority is “the

authority a principal knowingly tolerates or allows an

19 Although the ALPA Constitution and By-Laws is clear

regarding how a strike is to be initiated, see supra part II.A.1,

they appear to be silent on the topic of how a strike is to be

concluded.

App. 53

agent to assume, or which the principal by his actions or

words holds the agent out as possessing.” Owen Indus.,

Inc. v. Taylor, 354 So.2d 1259, 1261 (Fla. 2d DCA 1978).

Bavis, as chairman of the Eastern MEC, undisputedly was

an agent of ALPA. ALPA held Bavis out as possessing the

authority to terminate the strike by placing the following

sentence on the front page of the ALPA Pilots’ Strike

Manual: “PLEASE KEEP IN MIND: A STRIKE ACTION

WILL NOT BE CALLED OFF OR TERMINATED EXCEPT

BY DIRECTION OF THE MEC CHAIRMAN.” Conse-

quently, Bavis had the apparent authority to end the

strike.

Given that Bavis had the apparent authority to end

the strike, the next question is whether he exercised that

authority. Bavis’ exact words are unknown,2° but the

Parties agree that he said that the striking pilots should

return to work. ALPA maintains that Bavis was expres-

sing his individual views in the context of a debate

regarding the future of the strike. In support of its posi-

tion, ALPA points to the fact that the meeting culminated

in a vote in which the majority of the pilots voted to

continue striking. ALPA also points to other statements

made by Bavis during the meeting, such as his statement

that he was “speaking just as Jack Bavis, the pilot” and

his statement that “I’m not going to go back to work

personally unless we all go back to work,” as well as his

affidavit that he never told the pilots to cross picket lines

20 No official recording of the pilots’ meeting was made.

Various pilots made unofficial recordings (some of which are in

the record), but these recordings are incomplete or unintellible

in key places.

App. 54

prior to November 22. Finally, ALPA points to certain

communiques issued subsequent to August 6 — such as an

August 11 letter to all Eastern pilots — in which it main-

tained that the strike was still ongoing.

The appellants, on the other hand, maintain that

Bavis was announcing that the strike was over. In support

of their position, they point to seventeen affidavits in

which various Group I pilots state that ALPA terminated

the strike on August 6, basing their conclusion on Bavis’

statements. They also point to disciplinary charges

brought against Bavis by ALPA that “Capt. Bavis did, on

August 6, 1989, publicly advise the Eastern pilots to

abandon their picket activities and to return to work at

Eastern, accomplishing this traitorous act during a...

meeting to which the striking Eastern pilots were listen-

ing via a system-wide audio transmission” — charges that

are highly inconsistent with ALPA’s present position that

Bavis was merely exercising his First Amendment right to

express his personal opinion in an open debate. In addi-

tion, they point to a statement in ALPA’s official newslet-

ter that “[i]Jn August 1989, ALPA National advised the

Eastern pilots to go back to work.”2! Finally, the

21 Contrary to the majority’s suggestion, see ante at 1199 n.

19, the newsletter and the charges proffered by ALPA are highly

probative circumstantial evidence as to what was said on

August 6. By way of analogy, if the buyer of widgets gives the

seller a check for $5000 following a meeting with the seller, the

check is highly probative as to the what the parties said at the

meeting regarding the purchase price. (I note that ALPA also

submitted after-the-fact evidence to the district court - namely,

the communiques discussed earlier — to support its position

regarding what Bavis told the pilots on August 6.)

App. 55

surrounding circumstances support the appellants’ argu-

ment: given Bavis’ apparent authority to end the strike,

the desire of many pilots to return to work, and the

severe consequences to the pilots of returning to work in

violation of the strike, see supra note 11, other ALPA

leaders at the meeting seemingly would have taken steps

to clarify Bavis’ remarks if they did not want them to be

interpreted as authorization to return to work.

In sum, there is a genuine issue of material fact as to

whether ALPA terminated the Eastern pilots’ strike on

August 6, 1989. If this issue is resolved against ALPA,

then the Group I pilots are entitled to a jury determina-

tion on whether the scab allegation was made with actual

malice, as I discuss in the next subsection.22

*? Even if ALPA did not in fact terminate the strike on

August 6, there may be another theory on which the Group I

pilots can establish malice. In order for a worker to be a scab, he

must know that his union is on strike. A worker who works in

Violation of a strike of which he is unaware is no more a “scab”

than a military officer who unwittingly divulges security

information is a “traitor” — both may be fools, but neither can be

said to have engaged in an act of intentional betrayal. And, as

the language quoted in note 1, supra, suggests, an allegation of

scabbing necessarily implies betrayal or disloyalty. Thus, if the

Group I pilots genuinely believed that their union was no longer

on strike, then they could not accurately be described as scabs.

Consequently, if ALPA knew that the Group I pilots believed

that the strike ended on August 6, then it acted with malice.

Because this theory of actual malice was not presented to the

district court or to this court on appeal, however, I discuss it no

further.

App. 56

ALPA acted maliciously in regard to the Group I

pilots if it published the scab list knowing that (or with

reckless disregard as to whether) Jack Bavis terminated

the strike on August 6. In this regard, ALPA has pre-

sented testimony and post-August 6 communiques from

its own Officials stating that it genuinely and non-reck-

lessly believed Bavis did not terminate the strike and that

the strike was continuing.? On the other hand, the appel-

lants have presented substantial circumstantial evidence

of actual malice —- namely, that other ALPA officials heard

Bavis’ statements, and therefore knew that the strike had

been terminated when they published the scab list. In

addition, the charges brought against Bavis by ALPA are

compelling evidence that ALPA knew that he had termi-

nated the strike. Also, because ALPA knew that many of

the pilots returned to work in response to Bavis’ state-

ments, ALPA’s failure to consider the practical effect of

those statements prior to calling the pilots “scabs” may

have constituted reckless disregard of the truth under the

circumstances. In other words, if ALPA induced the

Group I pilots to return to work, a jury could reasonably

infer that ALPA at least had serious doubts when it then

turned around and called those pilots “scabs.” Finally,

ALPA’s lack of investigation into the effect of Bavis’

23 The majority, as with the discussion of malice as to all of

the pilots, see supra part II.B.1, finds ALPA’s evidence to be

credible and therefore concludes that ALPA did not act with

malice. Again, however, in light of the contrary evidence

discussed in the remainder of this paragraph, the weighing of

the evidence is a matter for the jury, not the court. See supra note

13.

App. 57

statements suggest malice, as discussed in part II.B.1,

supra.

A genuine issue of material fact exists regarding mal-

ice as to the Group I pilots. This is an additional reason

(along with the theory of malice discussed in part II.B.1,

supra) why summary judgment was inappropriate.

Finally, the appellants must establish that injury

resulted from ALPA’s publication of the scab list. Florida

law recognizes certain types of libels as “libel per se,”

meaning that injury is presumed and the plaintiff need

not present evidence on the issue. See Briggs v. Brown, 46

So. 325, 330 (Fla. 1908). Under federal law, however, a

libel action arising out of a labor dispute requires proof of

injury, regardless of state libel law. See Linn v. United

Plant Guard Workers of Am., Local 114, 383 U.S. 53, 64-65,

86 S.Ct. 657, 664, 15 L.Ed.2d 582 (1966); Pantex Towing

Corp. v. Glidewell, 763 F.2d 1241, 1248 n. 7 (11th Cir.

1985).24

The district court, in its order granting appellees’

motion for summary judgment, expressly declined to

reach the issue of injury. The court focused primarily on

the truth of the scab allegation — and understandably so,

since in a case of this magnitude, it is easier to decide the

case on grounds (such as truth and malice) that apply to

broad groups of plaintiffs, rather than on a ground (such

24 “Injury,” however, may be defined broadly to include

injury to reputation, mental suffering, and so forth. See Linn, 393

U.S. at 65, 86 S.Ct. at 664.

App. 58

as injury) that may involve an individualized inquiry into

the circumstances of each -plaintiff.2> Nevertheless, such

an inquiry may be required in light of my earlier conclu-

sions that the scab allegation is false and that there is a

genuine issue of material fact as to actual malice. This

case, therefore, should properly be remanded for further

proceedings on this issue. I take no position on whether

there is a genuine issue of material fact regarding injury.

Il.

In conclusion, the appellants have established, as a

matter of law, that the 1989 Eastern Airlines strike was

25 Of course, certain evidence of injury is probative as to

all appellants - for instance, an affidavit submitted by an

economist which states that, out of the 2241 scab list pilots, only

three found subsequent employment with a major commercial

airline, whereas out of the 1146 non-listed pilots, 136 were able

to find such employment. In addition, the appellants’

allegations of injury are supported by the fact that the whole

purpose of publishing a scab list is to cause injury. The

possibility of being labeled a “scab” can encourage workers to

participate in a strike only if the label harms the workers in

some way. Cf. supra note 11 (noting that ALPA resolved to

publish a list of strike-breaking pilots at the conclusion of the

strike, presumably as a means of preventing defections). This is

further confirmed in the present case by correspondence

between ALPA and union members who were working during

the strike, which includes claims like, “[a] scab who doesn’t

change his mind in time finds it very difficult to find a job with

other carriers. It’s not just other pilots who don’t want to work

with scabs. Even managements [sic] recognize that someone

who doesn’t understand loyalty does not make a reliable

employee”; and “[i]f you crossed [the IAM picket lines] for a

job, the job isn’t going to last, and the next one could be hard to

find.”

App. 59

illegally called and therefore ALPA’s scab allegation was

false. They have presented sufficient evidence to create a

jury issue as to whether the allegation was made with

actual malice because ALPA knew (or acted with reckless

disregard as to whether) the strike was illegal. Even if the

jury answered that question in the negative — in other

words, if a jury found for ALPA on the issue of malice -

the Group I pilots would nevertheless have a claim for

libel. A jury could find that (1) Captain Jack Bavis termi-

nated the strike on August 6, 1989, and (2) ALPA pub-

lished the scab list knowing this, or with reckless

disregard as to whether the strike was so terminated. |

take no position on the third element of the appellants’

claim, injury.

For the foregoing reasons, I respectfully dissent.

App. 60

United States Court of Appeals

For the Eleventh Circuit

No. 97-5587

District Court Docket No. 91-2679-CV

LARRY DUNN, TOM

DUCKWORTH, et al.,

Plaintiffs-Counter-defendants-Appellants,

versus

AIR LINE PILOTS ASSOCIATION,

HENRY DUFFY, et al.,

Defendants-Counter-claimants-Appellees.

Appeals from the United States District Court

for the Southern District of Florida

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

JUDGMENT

(Filed Oct. 25, 1999)

These causes came to be heard on the transcript of

the record from the United States District Court for the

Southern District of Florida, and were argued by counsel;

UPON CONSIDERATION WHEREOF, it is now

- hereby ordered and adjudged by this Court that the judg-

ment of the said District Court in these causes be and the

same is hereby AFFIRMED;

App. 61

It is further ordered that plaintiffs-counter-defen-

dant-appellants and plaintiffs-appellants pay to defen-

dants-counter-claimants-appellees, the costs on appeal to

be taxed by the Clerk of this Court.

TJOFLAT, Circuit Judge, concurred in part and dissented

in part and filed an opinion.

Entered: October 25, 1999

For the Court: Thomas K. Kahn, Clerk

By: /s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: JAN 07 2000

App. 62

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

LARRY DUNN, et al., CASE NO. 91-2679-

Plaintiffs CIV-DAVIS

MAGISTRATE

. JUDGE TURNOFF

AIR LINE PILOTS ASSOCIATION,

HENRY DUFFY, RANDOLPH BABBIT,

C. H. COPELAND, EDWARD BREEN,

LEWIS BALDWIN, and GREGG

PETACHENKO,

Defendants.

(Filed July 28, 1997)

ORDER

BEFORE THE COURT are the Motions for Summary

Judgment of (1) Defendants Air Line Pilots Association,

Duffy, and Babbitt (filed April 12, 1996) and (2) Defen-

dants Copeland, Breen, Baldwin, and Petachenko (filed

April 22, 1996).! Plaintiffs, former flight deck operating

crew members for Eastern Air Lines (“Eastern”), sue their

union — the Air Line Pilots Association (“ALPA”) -— and

various union officials. As a result of strike activity and

1 The two summary judgment motions raise nearly

identical arguments, and the second motion for summary

judgment incorporates the first by reference. This opinion uses

the motion of Defendant ALPA, Duffy and Babbitt (“Motion”) as

a reference point.

App. 63

on-going labor disputes, Plaintiffs allege that (1) Defen-

dants defamed them by publishing and distributing a

blacklist designating Plaintiffs as “scabs” (Counts I and

II), and (2) Defendant ALPA breached its duty of fair

representation (Count III).2 Defendants moved for sum-

mary judgment on all counts. After carefully considering

the parties’ motions and exhibits, and hearing oral argu-

ment, the Court will GRANT Defendants’ Motions for

Summary Judgment.

I. FACTUAL BACKGROUND

A. The Parties

Plaintiffs, former Eastern pilots and ALPA members,

divide themselves into three groups, based on when each

§roup crossed a strike picket line. Plaintiffs in Group I

crossed the picket line after August 6 and 7, 1989, when

ALPA officers allegedly instructed them to do so. Com-

plaint { 20. Plaintiffs in Group II crossed the picket line

between March 4, 1989 and August 6, 1989. Id. The Group

III Plaintiffs did not honor the picket line at any time. Id.

Defendant ALPA is a national labor organization that

represents pilots at over thirty airlines. Rosen Decl. { 2.

* ALPA has asserted counterclaims against certain

Plaintiffs based on their alleged failure to 1) pay strike fines and

2) repay loans extended by the Union during the sympathy

Strike. ALPA, however, has volunteered to defer the trial of its

counterclaims until after this Court determines Plaintiffs’ claims

for liability. Furthermore, ALPA States that it will not pursue its

counterclaims if 1) this court grants summary judgment in its

favor and 2) the Eleventh Circuit affirms this decision. ALPA

Motion at 5 n.2.

App. 64

As a unitafy labor organization, ALPA has a single Con-

stitution and By-Laws governing all subordinate bodies

and members. Id. At all relevant times, ALPA National

was governed by a Board of Directors, an Executive

Board, and an Executive Committee, in descending order

of authority. Rosen Decl. { 2. ALPA National acts as an

umbrella entity supporting elected Master Executive

Councils (“MECs”) at each ALPA airline. The MECs are

coordinating councils which are responsible for repre-

senting the pilots at an airline. Rosen Decl. { 6. Under

ALPA’s Constitution and By-Laws, unless otherwise spec-

ified, each MEC is empowered to make the final decision

regarding any problem or concern the members at that

airline may have. Id. The pilot representatives on each

MEC are democratically elected by the ALPA member-

ship assigned to each pilot base; these representatives

form an ALPA Local Executive Council (“LEC”). Rosen

Decl. { 7. Each MEC is responsible for making ALPA

policy for the pilots employed by their airline. Id.

Defendant Henry A. Duffy was president of ALPA

from January 1, 1983 until December 31, 1990. Duffy Dep.

at 4-5. Defendant E. Randolph Babbit served as Executive

Administrator during Duffy’s term and has served as

president of ALPA since January 1, 1991. Babbit Dep. at

4-5. Defendant C. H. Copeland served as Chairman of the

Eastern MEC from September 1989 until December 31,

1991. Copeland Dep. at 6. The remaining Defendants -

Edward J. Breen, Lewis Baldwin, and Gregg Petachenko -—

were members of the Eastern MEC’s Strike Committee

during the ALPA sympathy strike. Breen Dep. at 7;

Petachenko Dep. at 6; Baldwin Dep. at 6.

App. 65

B. Factual Background to Counts I and II

In 1988 and early 1989, Eastern and the International

Association of Machinists (“IAM”)3 unsuccessfully

attempted to negotiate a new labor contract through col-

lective bargaining. ALPA Motion at 12. The National

Mediation Board (“NMB”) declared an impasse and set a

strike deadline date of March 4, 1989. The-ALPA Eastern

MEC had to decide whether to direct Eastern Pilots to

honor or cross IAM Picket lines in the event of an IAM

strike.4

At a February 13, 1989 meeting, the Eastern MEC

adopted two formal resolutions. One declared the MEC’s

intention to direct pilots to honor IAM picket lines should

3 The IAM is a labor organization that represented Eastern

mechanics and ramp service employees.

* Because the Parties dispute the procedures necessary to

conduct a strike under these circumstances, it is important to

Carrier involved.” Rosen Decl. | 11 & Exh. 2 at 10. Second, in a

section titled “strike benefit policies,” the manual states “When

the members of an ALPA pilot group have elected to withdraw

their services, the Constitution and By-Laws... provide a

means by which assessments may be levied... .” Rosen Decl.

Exh. 2 at 5. Finally, Article IV of the ALPA Constitution states

that MEC approval is mandatory before a Strike vote of the

membership is taken, and that a strike vote must be by secret

ballot. Rosen Decl. Exh. 1 at 22.

App. 66

a strike occur,> and the other directed MEC officers to

survey the membership to measure pilot support for a

sympathy strike. On February 16, 1989, MEC Chairman

Jack Bavis wrote the Eastern pilots a letter and enclosed

the two MEC resolutions. He stated that the MEC had

resolved to ballot the pilot group “to determine its feeling

in terms of honoring an IAM picket line.” Bavis Dep. Exh.

On February 17, 1989, ALPA sent each Eastern pilot a

letter and a Ballot Poll card. Bavis Dep. Exh. 3. The letter

urged each pilot to make an informed decision and noted

that the MEC was very sensitive to the results of the

collective ballots. Id. The Ballot Poll cards directed each

pilot to choose one of three alternatives: “1) I would

honor an IAM picket line at EAL; 2) I would not honor an

IAM picket line at EAL; 3

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