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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1204

## Text

Vi
991530 mar 14a
NO. RICE OF THE CLERK

IN THE
SUPREME COURT OF THE UNITED STATES

JOSEPH S. NORMAN, I,
Petitioner,
In the case of:
LARRY DUNN, TOM DUCKWORTH, et al.
Plaintiffs-Counter defendants-Appellants,
VS.

AIR LINE PILOTS ASSOCIATION, HENRY
DUFFY, et al.

De fendants-Counter-claimants-Appellees.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOSEPH S. NORMAN II, pro se
' 5647 Santa Anita Dr.
Tallahassee, Florida 32308-2007
Telephone (850) 893-1484

INTRODUCTORY STATEMENT

The reason for this petition is because the name of
the petitioner appears on a pilot scab list, published over a
year after the strike ended, of pilots who worked for
Eastern Air Lines, Inc. Petitioner has never been a pilot
for or employee of Eastern Air Lines, Inc. No court has
commented on the overwhelming evidence, which
supports his position that he is not a scab.

QUESTIONS PRESENTED FOR REVIEW:
I
Is a union’s license to use libelous rhetoric limited
to the time period of the dispute or is there no time limit
whatsoever?
Il
Is summary judgment appropriate where the
District Court did not consider the affidavit submitted by
the non-moving party?

II
Have airline pilot trainees done work? (This

question is presented to clarify a major conflict in 11"

Circuit opinions, and is relevant to this case)

IV
Does the publication of a SCAB list after the

dispute is over constitute “an expression that contains a
threat of reprisal or force or promise of benefit” in
violation of 29 U.S.C. Sec. 158 (c)?

LIST OF PARTIES TO THE PROCEEDING:

This is the case of hundreds of airline pilots who
were blacklisted by their union. The complete list of
parties to the case is included in the Appendix which is
attached herein. See appendix pages 52-A--57-A

TABLE OF CONTENTS

INTRODUCTORY STATEMENT................0.ceccc0ee: i
THE QUESTIONS PRESENTED FOR REVIEW.........i

PARTY AND CORPORATE INFORMATION (SEE

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Re Say oe re iii
TABLE OF AUTHORITIES. ...........ccccccceccccececcecee iv
CITATION TO THE OPINION BELOW.................. l
BASIS FOR JURISDICTION. .........0cccccececcececcccesees l
PERTINENT TEXT OF THE STATUTES
Si ER a ee 2
STATEMENT OF THE CASE..........c0cccceccececcecceees 3
REASONS FOR GRANTING THE WRIT................. 5
NN I cso. ovedavdunndcduunvcceeodeesacecccecne 11
SIGNATURE OF PETITIONER...........0..00c0-0005-5 12
APPENDIX IS ATTACHED HEREIN
DENIAL OF REHEARING...................... 1-A
11™ CIRCUIT DECISION...........00..e.000--. 2-A
LIST OF PLAINTIFFS. .............0.00000000-. 52-A
LIST OF DEFENDANTS...........0.0000.-000-. 57-A
iii

TABLE OF AUTHORITIES
CASE PAGE
DUNN v. ALPA
No. 97-5587, 11™ Cir., Oct., 1999.......c.ccccceceececens 1,9

EASTERN AIRLINES V. ALPA, et al.
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LETTER CARRIERS v. AUSTIN
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LINN V. PLANT GUARD WORKERS,

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STATUTES AND RULES:

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1V

CITATION TO THE OPINIONS BELOW

The opinion of the Eleventh Circuit is found in
Dunn v. ALPA, Case No. 97-5587, JS ws
Cir., October 25, 1999. A petition for rehearing and

rehearing en banc was denied December 17, 1999. ON
REHEARING AND REHEARING EN BANC, DUNN v.

ALPA, Opinion , 11" Cir., 1999 ae

BASIS FOR SUPREME COURT JURISDICTION
The jurisdiction of the Court is invoked pursuant to
28 U.S.C. Section 1254 (1). The Eleventh Circuit denied a
request for rehearing and rehearing en banc on December
17, 1999. This petition is timely filed within 90 days

thereafter.

PERTINENT TEXT OF THE STATUTES
INVOLVED:
29 U.S.C. Sec. 158 (c) reads in pertinent part “:...

The expressing of any views, argument, or opinion, or the
dissemination thereof,.... shall not constitute or be evidence
of an unfair labor practice ...if such expression contains no

threat of reprisal or force or promise of benefit. ”

Fed. R. Civ. P. 56 states, in pertinent part: “....The

judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show

that there was no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

2

STATEMENT OF THE CASE

In early 1989, the International Association of
Machinists (IAM) called a strike against Eastern Air Lines,
Inc. (“Eastern” or “EAL”). The Air Line Pilot’s
Association (“ALPA”) engaged in a “sympathy strike”.
The strike by both unions began on March 4", 1989.

ALPA represents airline pilots. Eastern encouraged
pilots to cross the union picket lines and work. ALPA
adopted a formal resolution to “PUBLISH A FINALIZED
LIST OF STRIKE-BREAKING PILOTS AT THE
CONCLUSION OF THE ALPA SYMPATHY STRIKE”
and to bring internal union charges under Article VIII of
ALPA’s Constitution and By-Laws against pilots who
crossed picket lines.

On November 22, 1989, ALPA ended the sympathy
strike. In 1991, long after the strike had ended, ALPA
produced and distributed 50,000 copies of a list titled “The
Scabs of Eastern of the strike of *89”. The affected pilots
filed a suit for libel against ALPA.

The District Court granted summary judgment for
ALPA concluding that the pilots had not shown that the
“scabs” list was false or that there was evidence of actual
malice. The Eleventh Circuit upheld the summary

judgment.

Petitioner Joseph S. Norman II, (Norman) was

originally by himself in a separate group of this lawsutt.
The group in which Norman was categorized was defined
as a person who “had never been employed by Eastern”.
During the litigation Norman was lumped into a group of
pilots that did not fairly represent his situation. When the
attorney representing Norman, along with hundreds of
other Plaintiffs, failed to respond to Norman’s
representation complaints the attorney was dismissed and
Norman continued with this suit on a pro se basis.

In the process of separating NORMAN in this
complex action, the District Court failed to review or
consider THE AFFIDAVIT OF JOSEPH S. NORMAN II
to determine if there was a genuine issue as to one or more
material facts. -As Judge Davis stated at the hearing RE
SUMMARY JUDGMENT MOTION “Secondly, I don’t
find an affidavit of Joseph Norman anywhere in our
records”. There is no evidence in the record the affidavit
of Norman was ever found and evaluated, by the court,
prior to the Summary Judgment ruling. The record reflects
that the district court rendered summary judgment without
all the information it needed.

Petitioner Joseph S. Norman II appeals.

REASONS FOR GRANTING THE PETITION

|
Is a union’s license to use libelous rhetoric
limited to the time period of the dispute or is there no
time limit whatsoever?
This is a case where the libel occurred after the

union dispute had ended. The libel, in fact, was not
published until more than a year and a half after the dispute
had ended. The union publication titled “The Scabs of
Eastern of the Strike of ‘89” cited more than two thousand
pilots who allegedly crossed the machinists union’s picket
lines and worked. If the list could not be useful in settling
the labor dispute to which it pertained, then what was the
purpose a year and a half later?

The courts cited cases where unions had a license to
use libelous rhetoric, but in every case cited, the
immunization of the union was for statements occurring
“IN THE HEAT OF THE DISPUTE” or “DURING A
UNION ORGANIZING CAMPAIGN” or ‘IN LABOR
DISPUTES”. See LETTER CARRIERS v. AUSTIN, 418
U.S. 264 (1974), and LINN v. PLANT GUARD
WORKERS, 383 U.S. 53 (1966).

Petitioner found no case where the union license for

libelous rhetoric exceeded the calendar time parameter of a

union dispute or organizing campaign.

Petitioner Norman also notes the Circuit Judge

Tjoflat, dissenting in the Eleventh Circuit opinion, believed
that ALPA was never legally on strike. Judge Tjoflai
pointed out that ALPA did not follow its own rules in
calling the sympathy strike.

II

Is summary judgment appropriate where the
District Court did not consider the affidavit of a non-
moving party?

The District Court said during its proceedings that it
was going to consider Petitioner Norman’s affidavit.
Unfortunately, the District Court lost track of Norman’s
affidavit in the morass of documents in a case involving
hundreds of plaintiffs. The court never ruled on it (R-443,
pg. 3 et seq.) The plain words of FED. R. Civ. P 56 require
a district court to consider all the documents before a
summary judgment is rendered. That was not done. The
Eleventh Circuit never reached this issue.

Was Petitioner’s affidavit important? The affidavit
showed Petitioner was, at all times, an ALPA MEMBER
IN GOOD STANDING sand that he had run for the
presidency of the union, without objection, subsequent to
the period of the sympathy strike. Individuals who are not
in good standing with the union are precluded from seeking
the office of union president by the Union Constitution and

By-Laws. The documentary evidence provided by

Petitioner Norman meant placing his name on the scab list

was an act neither justifiable nor warranted under the rules

of ALPA and ALPA’s Constitution and By-Laws.

There are a series of facts that help to define why

this petitioner is not a scab and why summary judgment

was incorrect:

The summary judgment was directed to “ Plaintiffs,
former flight deck operating crew members for Eastern
Air Lines”. Petitioner was never an Eastern Air Lines
“flight deck operating crew member”.

Norman was never a pilot for Eastern Air Lines, nor
was he ever qualified to be a pilot for Eastern Air Lines.
ALPA (Defendant in case) never gave Norman an
opportunity to refute allegations he was a SCAB.
Norman was never subject to Article VIII discipline by
the union. (See fn. 11 appendix pg. 39-A)

Norman left EAL training when asked by ALPA which
in return classified Norman as a “sympathy striking
pilot”.

ALPA gave Norman strike benefits from June 18, 1989
until benefits were ended for all ALPA sympathy
striking pilots. Had Norman done pilot work for
Eastern he would not have received these strike
benefits. The scab list was updated “almost daily” and
names of those who crossed the picket line to work had

their names removed from the benefit list.

e None of the listed details above is refuted. ALPA put
Norman on the SCAB list without cause and after
ignoring ALPA’s own Constitution and By-Laws. No
two union positions are more opposite than of “scab’
and “member in good standing”. The District Court
could not have granted summary judgment for ALPA if
it had reviewed the affidavit of Petitioner Norman. In
the interest of judicial economy, the Supreme Court is
asked to rule that where the evidence, as here, is so
clear that Norman was libeled, the case be remanded to
the District Court for a determination of damage that
petitioner is entitled to.

Il

Have airline pilot trainee’s done work? (This
question is presented to clarify a major conflict in 11"
Circuit opinions, and is relevant to this case)

The 11™ Circuit addressed pilot trainee’s in Eastern
Airlines v. Air Line Pilots Association et. al.,920 F.2d 722,
727, C.A. | 1(1990) and quoted a Seventh Circuit statement
from United Airlines, 802 F.2d at 911 which reads:

“These pilots never performed any work for
United nor did they ever submit to United’s
Supervision of them in their work.....”

Again in EASTERN AIRLINES V. ALPA, et al., 920 F. 2d
722, 728:
“Eastern’s trainees were not actually performing
the work ordinarily discharged by the former
strikers. As the district court correctly reasoned:
Trainees, to be sure, are not qualified to perform
in the stead of striking pilots. In fact they may
never be. Optimistically, they may ultimately
fill the shoes of striking employees.”

The 11" Circuit also quoted from an Eighth Circuit
opinion:

“these trainees were not ‘performing

any work’ of the carrier by any stretch

of the imagination.”

The 11™ circuit in Dunn v. ALPA 97-5587, 11”

Cir., Oct 1999 appears to have contradicted itself when it
ruled this Petitioner who was never more than a trainee

during the same strike addressed in Eastern had done work

during the Eastern Strike of ‘89° and was thus a “scab”. In
the interest of Judicial economy, the Supreme Court is
asked to rule that trainees have not done work during a
union strike and the case be remanded to the District Court

for a determination of damage that Petitioner is entitled to.

IV
Does the publication of the scab list after a

dispute is over constitute “an expression that contains a

threat of reprisal or force or promise of benefit” in

violation of 29 U.S.C. Sec. 158 (c) ?

What possible result did the union want by listing
over two thousand pilots as scabs, from a sympathy strike
of questioned legitimacy, that ended over a year earlier?

The union’s act might certainly qualify as FORCE —
the union’s ability to FORCE any pilot to pay the high
price of professional suicide if the ALPA officialdom was
angry with them for any reason- or no legitimate reason at
all. The scab list made the affected pilots unacceptable at
any airline where ALPA was the pilot union.

There was a concomittant PROMISE OF BENEFIT
to those pilots who would follow ALPA without questions.
The benefit was that the remaining: pilots would have
substantially improved chances for better jobs, pay and
seniority because ALPA had made more that 2000 pilot
members into “unemployables” at most major airlines by
placing their names on a scab list and distributing 50,000
copies, worldwide, a year and a half after the dispute had
ended.

Did the ALPA scab list represent a “THREAT OF
REPRISAL” if any pilot in the future might want to
challenge ALPA officialdom or run for the union
presidency? Was ALPA’s action legal or was it a violation

of 29 U.S.C. Sec. 158 (c)?

10

ro §

CONCLUSION

I
Petitioner Joseph S. Norman II asks the court to find

that a “scab list”, published over a year after the strike
ended , is not protected by the union’s “license” to use
libelous rhetoric during the period of a dispute or

organizing campaign.

Il
Petitioner asks the Court to find, where the District
Court did not review his affidavit prior to summary

judgment, that the judgment be reversed.

Ill
Petitioner asks the Court to find pilot trainee’s have
not done work and thus are not “scabs” and this case be

remanded for further proceedings as to damages.

IV
Petitioner asks the Court to find that the publication
of a “scab list”, after the dispute has been over for a period
of more than a year, represents “ an expression that

contains a threat of reprisal or force or promise of benefit”

in violation of 29 U.S.C Sec 158 (c).

Dated this 10" day of March, 2000
RESPECTFULLY SUBMITTED,

ww. (f/f)
, \ S. Norman II, pro se

Santa Anita Dr.
ahassee, Florida 32308-2007

Telephone: (850) 894-1484

12

APPENDIX TABLE OF CONTENTS

DOCUMENT PAGE

DENIAL OF PETITION(S) FOR REHEARING AND
PETITION(S) FOR REHEARING EN BANC.......... 1-A

ORDER OF ELEVENTH CIRCUIT COURT

Es plnhakentabhdukaeknaxapsekunds denn tienda 2-A

APPELLANT NORMAN. ..........s0sscccsssee 27-A
EE EME Dicnccnsisancksctenensassnsessensenes 52-A
RR GOONS ois sccocvessvcssdcscsdnrcensseves 57-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED
US. COURT OF APPEALS
No. 97-5587 ELEVENTH CIRCUIT
DEC 17 1999
THOMAS K. KAHN
CLERK

LARRY DUNN, TOM DUCKWORTH, ET al.,
Plaintiffs- Appellants

versus

AIR LINE PILOTS ASSOCIATION, HENRY
DUFFY, et al.,
Defendants-Appellees

On Appeal from the United States District Court for the
Southern District of Florida

ON PETITION(S) FOR REHEARING AND
PETITION(S) FOR REHEARING EN BANC
(Opinion 11"Cir.19 F.2d ).

Before: TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:

The petition(s) for Rehearing are DENIED and no member
of this panel nor other Judge in regular active service on the
Court having requested that the Court be polled on
rehearing en banc (Rule 35, Federal Rules of Appellate
Procedure; Eleventh Circuit Rule 35-5), the Petitions(s) for
rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

“S/ Hannah Hull”

UNITED STATES CIRCUIT JUDGE
1-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT

No. 97-5587 | tnomasie xaun
CLERK

D.C. Docket 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.

2-A

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 by
listing them as “scabs,” the union intentionally interfered
with their business relationships with other airlines. The
district court dismissed the tortious interference claim for
failure to state 4 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 Counsel (“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
deliberation. On February 16, 1989, MEC Chairman
Bavis sent a 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 International 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 3400 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
unanimously adopted a formal resolution to “publish a
finalized list of strikebreaking pilots at the conclusion of
the ALPA sympathy strike” and to bring internal union

4-A

charges under ALPA’s constitution against all ALPA
members who crossed the picket lines. Individuals were
placed on this list of working pilots only upon 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
continue 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-base
Eastern pilots voting overwhelmingly, by a show of
hands, to continue the sympathy strike. Subsequent local
pilot meetings yielded the same result. From August 6 to

5-A

9, ALPA held pilot meetings at communication centers
throughout the Eastern system. At each meeting, with
one exception, the pilots voted overwhelmingly to
continue the sympathy strike.

On August 11, 1989 the Eastern MEC made an
official decision to continue the sympathy strike. ALPA
President 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 confirmed 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.

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.”

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

' 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.”

? The Plaintiffs-Appellants file 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. s 1441 (1994).

6-A

Fiat —

district 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
complaint for failure to state a claim, construing all
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 (11 Cir. 1999); Harper_v.
Thomas, 988 F.2d 101, 103 (11™ Cir. 1993). A complaint
may not be dismissed unless it appears beyond doubt that
the plaintiff can prove no set of facts which would entitle
plaintiff to relief. Hall v. Coram Healthcare Corp., 157
F.3d 1286, 1288 (11™ Cir. 1998); Terry v. Cook, 866 F.2d
373, 375 (11™ 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 (11 Cir. 1996); Carriers
Container Council v. Mobile S.S. Assoc., Inc., 896 F.2d
1330, 1337 (11™ Cir. 1990). We review all evidence and

* The parties agree that Florida law controls this dispute except to the
extent its preempted by federal law.

* 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.

7-A

| :

all factual inferences therefrom in the light most favorable
to the non-moving party.

li. TORTIOUS INTERFERENCE CLAIM

We first consider the pilots’ claim for tortious
interference with business relationships. ALPA moved to
dismiss 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.*

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
interference 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. 1* 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

* 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 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 (S* Cir. 1978),
vacated on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d
371 (1979).

8-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 claim for intentional interference
with a business relationship; 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
“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 entitled 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 preempts state libel law because national labor
policy favors free speech, open communications, and
robust debate in labor disputes. Old Dominion Branch
No. 496, Nat’] 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 plaintiff is

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actionable only if a plaintiff shows the statement was
made with actual malice. Linn 383 U.S. at 65 (applying
malice requirements to statements made during union
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
restrictions on state defamation law and stating that
plaintiff bears the burden of proving actual malice with
“convincing 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 addition, “[bJefore 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 Time’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 factual 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” defamation suit where the Court explained that
“the only factual statement in the disputed publication is

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——— ————vV—

the claim that 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
falsehood, naming the appellees as scabs
was literally 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.°

° 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 285086. 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. ld. The Court 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.

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 Green belt Cooperative Publishing
Association v. Bresler, 398 U.S. 6 (1970). In Bresler, the
defendants had characterized the position of the plaintiff
in certain negotiations as “blackmail,” and at trial, the
plaintiff had recovered damages for libel on the theory
that defendants knew he had committed no such criminal
offense. The Supreme Court reversed, holding that his use
of the word “blackmail” should not be legalistically
construed as the commission of the criminal offense of
“blackmail” but the way the 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 criticized.
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.

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

The reasonable reader approach has been followed
consistently by the Supreme Court and this Circuit . See

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oO

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
“statement is not considered false unless it “would have a
different effect on the mind of the reader from 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 (11™ 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]
interpretation does not construe [the cartoon] as the
common mind would understand [it] but is tortured and
extreme.” Valentine v. C.B.S., 698 F .2d 430, 432 (11"
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.

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

” 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

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definition of ‘strike’ in a labor context is “ a temporary
stoppage 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.” It
is undisputed 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 the
1989 work stoppage, ALPA’s listing them as “scabs” was
factually true and the district court correctly granted
summary judgment 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 ans 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.”

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)

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 9 (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 “crosssing a picket line during a sympathy
strike constitutes working on nonunion terms.” Id.

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aaa iaecnetailniniiiniiiin iii ii ae

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. It is
undisputed that the strike called by ALPA’s leadership
resulted is a massive union work stoppage; that there were
union picket lines; that as many as ninety percent of
Eastern pilots refused to fly for Eastern initially; that a
strike committee was set up and local communications
centers were operating; that Plaintiffs returned to work
during that work stoppage; and that the majority of pilots
actually 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 stopage 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
allegation 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

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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 plaintiff's
bargaining position was unreasonable-not an accusation
that the plaintiff had actually committed the criminal
offense of blackmail. 398 U.S. at 14.

Similarly, ALPA’s listing of these pilots as
“scabs” during the 1989 strike was not an accusation that
ALPA’s leadership 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 stoppage and was factually true. A reasonable
reader would understand the pilots on ALPA’s “scabs”
list to be the pilots who returned to work across union
picket lines during the 1989 work stoppage. 10 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 thereunder are simply not part of
the generally accepted definitions of a “scab” or a
“strike” that inform the analysis in a libel claim-much less
a part of the reasonable reader’s concern in reading the
1989 “scabs” list.""

'0 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 was a union that used the term
“scab.” Additionally, there is no evidence in this record that any
ALPA member during the course of the 1989 strike sought an
injunction to halt the strike as illegally called under ALPA’s
constitution, but instead ALPA’s pilots overwhelmingly voted to
support the strike and actually struck Eastern.

'! We found no published case applying Letter Carriers where a
defamation liability was imposed based on a “scab” allegation during

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a

A. Strike Was Lawfully Called

In any event, the district court correctly held that
ALPA’s1989 sympathy strike was lawfully called.
ALPA’s constitution does provide that members “will be
balloted” before a “suspension of service” and that the
majority vote of the MEC is required before “a strike vote
of the members.”!* This provision is general and does not
distinguish between primary strikes and sympathy strikes.

an admitted labor dispute — much less on the dissent’s novel theory
that even though a strike occurred, the 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.

'? 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 shall be by secret ballot....A simple majority of
valid ballots returned shall govern.

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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 govern.'°
ALPA’s Board is also authorized to develop internal
ALPA policies, which are contained in its Administrative
Manual and are binding on all ALPA members. In
particular, 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
l. 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.

'3 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 is session, shall be the final governing decision
of the Association and shall be binding on 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.

18-A

Zz 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
consistently 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

'* As Seth Rosen, ALPA’s long-time Director of Representation,
stated:

In my employment with ALPA over the last 25 years, I have been
involved in or had close personal knowledge of a number of
occasions on which ALPA decided to engage in sympathy strikes. In
particular, | have personal knowledge of the following occasions on
which ALPA decided to engage in sympathy strikes:

Year Air Carrier Primary Strike By
1971-72 Hughes Air Corp.d/b/a Air West Aircraft Mechanics
Fraternal Ass’n

1973. Ozark Air Lines Aircraft Mechanics
Fraternal Ass’n

1974 Saturn Airways Int’! Bhd. of Teamsters
1977 _ Trans Int’) Airlines Int’1] Bhd. of Teamsters
1979 Ozark Air Lines Ass’n of Flight
Attendants

1985 Pan American World Airways Transport Workers
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, | am not aware
of any occasion on which a vote of ALPA members was conducted
for the purpose of authorizing a sympathy strike.

19-A

of this ballot provision has been interpreted by ALPA’s
Board for thirty years to apply to only primary strikes and

not to secondary strikes, also known as sympathy
strikes.'°

(emphasis added). In contrast, Mr. Rosen stated that ALPA’s general
practice has been to ballot members prior to conducting a primary
strike.

'S 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 atid 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.

20-A

The district court correctly held that ALPA’s
longstanding interpretation of its own governing
documents is entitled to considerable judicial deference,
subject to 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 (1* Cir. 1993);
Local 1052 United Bhd. of Carpenters & Joiners v. Los
Angeles County Dist. Council of Carpenters, 944 F.2d
610, 613 (9" Cir. 1991); Air Wisconsin Pilots Protection
Comm. v. Sanderson, 909 F.2d 213, 218 (7" Cir. 1990);
Newell v. International Bhd. of Elec. Workers, 789 F.2d
1186, 1189 (5™ Cir. 1986). Judicial deference is
particularly appropriate in this libel case where ALPA’s
interpretation is consistent with its well-established 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 constitution
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 documents. 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. '®

In sum, we find that the pilots have not shown that
ALPA’s sympathy strike was unlawfully called. At a
minimum, there is insufficient evidence that ALPA’s

'° 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.

21-A

interpretation of its constitution is patently unreasonable
or adopted in bad faith.

B. 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
undisputedly crossed ongoing picket lines during the
sympathy 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 actual statements or in fact
“entertained serious doubts as to the truth of his
publication.” | 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 Communications v. Connaughton, 491 U.S. 657,
667 (1989); Bose Corp. v. Consumers Union, 466 U.S.
485, 511 n.30 (1984).

22-A

This actual-malice standard requires a plaintiff to
establish by clear and convincing evidence, Masson, 501
U.S. at §10; Anderson,477 U.S. at 254, that “the
defendant realized that his statement was false or that he
subjectively 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 (6" Cir. 1995);
Clyburn_ v. News World Comm. Inc., 903 F.2d 29, 33

(D.C. Cir. 1990)"

Here, there is no evidence, let alone sufficient
evidence 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 _ individual
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.
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 that pilots were

'? Il-will, innproper 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., Inc., 403 U.S.
29, 52 n. 18 (1971) (same)

23-A

actually 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.

C. Pilots Who Flew for Eastern Only After August 6

The district court also correctly rejected the separate
argument made by a group of pilot who crossed the union
picket lines only after the union meeting on August 6 (the
“post-August 6 crossover pilots”). '8 These _ pilots
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

'8 Plaintiffs divide themselves into three groups by dates. Plaintiffs
in Group III never honored the ALPA picket lines and worked
throughtout 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. The group
I Plaintiffs allege that they did not cross LAM’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 | 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.

24-A

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

ie als

m not going to go back to work and cross the picket
line.” [R]Jegardless 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.”

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
recording of the meeting and seventeen pilots filed
affidavits stating that Bavis urged pilots to return to work
at the August 6 meeting.'°

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,
Eastern pilots in uniform continued to walk picket lines,
the sympathy strike continued, and the pilots continued to
cross picket lines to work. Indeed, it is not disputed that
throughout the rest of August 1989, ALPA, the Eastern
MEC, and the Eastern MEC’s strike operations committee
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

'° 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.

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to continue the strike. ALPA and the Eastern MEC
notified every Eastern pilot of this decision. ALPA
President Duffy notified all ALPA pilots by letter of the
MEC’s decision. As Duffy explained:

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
likewise confirmed that “THE STRIKE IS ON!! THE
PICKET LINE REMAINS!!” The record contains
evidence of how the pilots’ overwhelmingly vote to
remain on strike was widely reported in the media and in
internal ALPA communications.

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
uniforms.

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
Plaintiffs on the “scabs” list knowing the strike had been
terminated because it is undisputed that after August 6,
the work stoppage continued and Eastern pilots picketed

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until November 22, 1989. More 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
determines 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.

V.APPELLANT NORMAN

Appellant Joseph S. Norman II, advances pro se
an additional argument that ALPA acted with malice as to

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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’, 920 F.2d 722 , 727 (11" 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 program. Under these circumstances, Norman
was “working” 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 relevant in determining whether “scab” can be
applied to him. Consequently, ALPA had no additional
reason to know that Norman was not a scab; his situation
is therefore no different from that of all the other pilots”’
who worked despite the strike.”

?° 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 (11 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.

71 Norman began working for Eastern in May 1989, and thus is not
among the pilots who returned to work after August 6, 1989.

2 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.

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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
Plaintiffs claim for intentional interference with their
business relationships.

AFFIRMED.

TJOFLAT, Circuit Judge, concurring in part and dissenting
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,
65 A.L.R.4™ 1000, 1009-10 (1988).'

' The Oxford English Dictionary’s (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 | 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 which he made a
SCAB. A SCAB is a two-legged animal 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 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 pottage. Judas Iscariot sold his Savior for thirty
pieces of silver. Benedict Arnold sold his country for a
promise of a commission in the British Army. The modern
strike-breaker

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! a

William West discovered exactly what kind of harm when
he decided not to 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 undergone 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 A18.

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 $.230: The Freedom from
Union Violence Act Before the Senate Judiciary Comm..
105" Cong., at 100-01 (1997) (testimony of Rod Carter).
Retaliation against scabs that summer even extended into
sympathetic unions. In Houston, the president of the Police
Patrolman’s Union, Terry Martin, told his members to “go
into a ‘zero tolerance’ mode, and do everything possible to
get that UPS ‘scab’ truck off the road.” Stephen Johnson,
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, striking
workers vandalized the property of a woman they targeted
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., 105" Cong., at 4 (1997)
(testimony of Reed Larson). Finally, in the midst of a
United Mine Workers strike, striking miners shot and killed

sells his birthright, his country, his wife, his children, and his
fellow-men for an unfulfilled promise from his employer, trust

or corporation.

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ena nn

Eddie York for continuing 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’]
Ass’n_of Letter Carriers, AFL-CIO v. Austin, 418 US.
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 appellees as scabs was literally and factually
true”). Because I 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 malice, I would hold that the district court
erred in granting appellees summary judgment on
appellants’ libel claim.’

1, therefore, respectfully dissent.’

I.

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.

? | 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 | exclude Norman.

> | 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.

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”).*
Accordingly, the pilots were directed to stop working, and
not 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 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,° alleging,
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.

Il.

The majority, purporting to follow the Supreme
Court’s reasoning in Letter Carriers, concludes that
ALPA’s statement that appellants were scabs was factually
true; and thus, the district court did not err in granting
appellees summary judgment. The majority, however,
follows the Court’s reasoning in Letter Carriers in form

* 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 F2d 503, 505-06 (2d Cir. 1942).

* The appellants also sued certain individual executives in ALPA and in
the Eastern MEC. | refer to all of the defendants/appellees as “ALPA”.

33-A

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
picket lines were not scabs.° For ALPA’s statement (that
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 appellants
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 during a union
strike, therefore were scabs, was false.

A.

To succeed on a defamation claim based on
statements made during a labor dispute, a plaintiff must
show falsity and actual malice. A statement is false if it
produces 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, 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 determine if this statement was false, we thus look at

° 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.

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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
conclusion that ALPA’s scab allegation was true. The
reasonable reader analysis dictated by Masson ends with
the statement 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 reasonable 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 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

” 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.

* 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
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 purposes 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 13-14. Why a United
States Court of Appeals should not be legalistic is unclear to me.
Should a forest have no trees?

35-A

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
allegation that appellants were scabs, i.e., people who
worked during a union strike, was false.

l.

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 [V, 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 membersof an airline may be
taken. This membership strike vote shall be by
secret ballot .... A simple majority of valid ballots
returned shall govern.

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.

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 mandate
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
Constitution 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,

36-A

where a noun is left unqualified, it applies without
qualification. 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. 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 primary strikes. Furthermore, 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 primary 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 (1" Cir. 1993), a
membership vote was required before a strike could
commence.” Because no such vote was taken,’ the strike
was invalid.

* 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.

37-A

a.

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
employment 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 pariicipate in an illegal strike, called by
union bosses acting outside the scope of their authority,
would make the pilot a more attractive candidate for
employment. Inclusion on the scab list would in no way

'° ALPA members were polled two weeks prior to the strike declaration
to see whether they would honor an [AM 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 I1.B.1, infra.

38-A

demean the character of the persons so included, but would
instead be a badge of honor.

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 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 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, however, is
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.

B.

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.

' 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 on a legal ALPA-sanctioned strike shall be
automatically expelled from membership in ALPA.” ALPA
Administrative Manual S 65-12, at 271 (1993) (emphasis added).

39-A

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

l.

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 doubt
believed that no membership vote was needed for a
sympathy strike, and thus believed that the individuals on
the scab list were in fact scabs.'? 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

'? 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.

'’ 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.

40-A

power to call a strike without taking a vote of the
membership. See generally Hunt v. Marchetti, 824 F.2d
916, 919 (11" 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
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. 5 41] (a)(1) (1994);
Christopher v. Safeway Stores, Inc., 644 F.2d 467, 470 (5™
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, €.g.,
Michelotti v. Air Line Pilots Ass’n, 61 F.3d 13, 14 (7" Cir.
1995); O’Neill v. Air Line Pilots Ass’n, Int’], 886 F.2d
1438, 1447-48 (5 Cir. 1989), rev’d on other grounds, 499
U.S. 65, 111 S. Ct. 1127, 113 L.Ed. 2d 5] (1991); Klemens
v. Air Line Pilots Ass’n, Int’), 736 F.2d 491, 495 (9" 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 US. 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 interests, see Air Line Pilots Ass’n,
Int’] 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

41-A

: aut

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 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 actually
believed it. See Hunt v. Liberty Lobby, 720 F.2d 631, 643-
46 (11" Cir. 1983) (stating that implausibility may be
evidence of actual malice). It is hard to imagine an
Organizing 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.
Furthermore, such a system would contain an enormous
potential 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. )"*

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 questionaires sent to all Eastern ALPA
members asking them to choose among the following
options: (1) “I would honor an IAM picket line at EAL”;

'* The idea of concentrating so much power in the hands of a few
individuals recalls Lord Acton’s oft quoted phrase, “[p]ower tends to
corrupt and absolute power corrupts absolutely.” John Bartlett, Familiar

Quotations, 615 (15™ ed. 1980).

42-A

(2) “I would not honor an IAM picket line at EAL”; or (3)
“My elected MEC representatives are best qualified to
make this 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 members
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
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, 109 S. Ct. 2678, 2698-99, 105 L.Ed.
2d 562 (1989); Vanderburg v. Newsweek, Inc., 441 F.2d
378, 380 (5" Cir. 1975).'* In this case, the allegation is
very serious — ALPA officials believed (and hoped) that by
labeling the appellants “scabs,” they would permanently
prevent them from obtaining employment with a
commercial airline. 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 thoroughly 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

* In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11" Cir. 1981)
(en banc), this court adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981.

43-A

_

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 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.

y &

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

'© 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 me 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. ss 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).

44-A

union’s course of action.'” 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.'* 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 | pilots were therefore
included on the scab list.

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 | pilots
~ even if it believed that the strike had been legitimately
called in the first instance. In this section, therefore, |
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 | pilots of being scabs.

a.
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;'? however, Bavis’ lack of actual authority to end
the strike is irrelevant in light of his apparent authority to
_ do so. See North River Energy Corp. v. United Mine
Workers of Am., 664 F.2d 1184, 1192 (11" Cir. 1981)
(noting that acts of a union agent on behalf of the union

” The meeting was held in Miami and was broadcast to all other
Eastern pilot bases.

'® The remainder of the appellants either never joined the strike or
ceased striking prior to August 6.

'* 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.

45-A

_

committed within the scope of the agent’s apparent
authority “bind the union, regardless of whether they were
specifically authorized or ratified”). Apparent authority is
“the authority a principal knowingly tolerates or allows an
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.”
Consequently, 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,”” but the
parties agree that he said that the striking pilots should
return to work. ALPA maintains that Bavis was expressing
his individual views in the context of a debate regarding the
future of the strike. In support of its position, 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 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 maintained that the strike was still ongoing.

?° 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 unintelligible in key places.

46-A

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.
The 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 listening 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 addition, they point to a statement in
ALPA’s official newsletter that “{i]n August 1989, ALPA
National advised the Eastern pilots to go back to work.’”!
Finally, the surrounding circumstances Support the
appellants’ argument: 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 an 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 determination
on whether the scab allegation was made with actual

* Contrary to the majority’s suggestion, see ante at 23 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. (1
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.)

47-A

malice, as I discuss in the next subsection.2”

b.

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 presented
testimony and post-August 6 communiques from its own
officials stating that it genuinely and non-recklessly
believed Bavis did not terminate the strike and that the
strike was continuing.’ On the other hand, the appellants
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 terminated the strike.
Also, because ALPA knew that many of the pilots returned
to work in response to Bavis’ statements, ALPA’s failure to
consider the practical effect of those statements prior to
calling the pilots “scabs” may have constituted reckless

2 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 |, 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.

?3 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.

48-A

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’ statements suggest malice, as discussed
in part I].B.1, supra.

A genuine issue of material fact exists regarding
malice as to the Group I pilots. This is an additional reason
(along with the theory of malice discussed in part II.B.,
supra) why summary judgment was inappropriate.

i.

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 if a labor dispute requires proof of injury,
regardless of state libel law. See Linn v. United Plant
Guard Workers of Am., Locall14, 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 (11™ Cir.
1985).”4

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 as injury) that
may involve an individualized inquiry into the circumstances of each

*“ “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.

plaintiff.”* Nevertheless, such an inquiry may be required in light of
My earlier conclusions 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.

IIL.

In conclusion, the appellants have established, as a
matter of law, that the 1989 Eastern Airlines strike was
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
terminated the strike on August 6, 1989, and (2) ALPA
published the scab list knowing this, or with reckless
disregard as to whether the strike was so terminated. I take

—

** 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] recognizes that someone who doesn't
understand loyalty does not make a reliable employee”; and “{i}f you
crossed [the AIM picket lines] for a job, the job isn't going to last, and
the next one could be hard to find.”

$0-A

no position on the third element of the appellants’ claim,
injury.

For the foregoing reasons, | respectfully dissent.

LIST OF PLAINTIFFS

Jose Alvarez
George M. Andrews
Thomas J. Angeletti
Francis C. Armstrong Ill
William M. Atteberry
Matt Babayan
James H. Baldridge
Frank Baque
Patrick S. Barge
William Barnes

H. Bryant Barnes
David Bartlett

Jim Bauch

Ronald Beard

Don Beattie

Robert Beals

Peter J. Behr

David Bell

Larry A. Bell

Dean H. Berghane
David S. Bergstein
Steve Y.Bergstrom
Timothy N. Berwick
_ Peter J. Bialko
Bruce Bichan
Charles R. Bisguano
Otis Belkenship
Victor Blix

Dudley W. Boone
William H. Brandt
Piers R. Brahman
Dirk Bredthauer
James D. Bridges
Paxton Briley

David L. Browning
Grant Brundage
Charles C. Bryant
William Bundrant
Edward S. Buntin Jr.
Ron Barkett

David A. Burns
Richard Capon
George L. Carl
Bruce R.Carter
Bruce F. Chaille

Carl Champagne
James Chzpa
Jonathan Charnes
Rafael E. Chirino
Anthony S. Christopher
Dennis Cirrotti
Frank Clark
Geoffrey B. Coe
Jack D. Cole
William F. Cole
John Compton
Carl Donald Cook
Kenneth Cook
Jack D. Corbitt
Stephan Cotter
Robert Couban
John Cowen
Wendell Crane
Cliff Craus
David Cradford
Kenneth Crow
Jim Crush
Thomas Curran
Edward Curtis
William Davidson
Gerald Davis
David Davison
William Davoust
Mauri Denning
John Devereaux
Randall Dickinson
George Dickman
Carroll Dixon
Gordon Dobson
Frank Doglione
Michael Donovan
Denny Doran
Thomas Duckworth
Charles Dundas
Larry Dunn
Rick A. Dunn
John Durante
Gregory P. Durkin
Jerry Eastman
Kenneth Edwards

Ronald Egut
James Emery Jr.
Warren Engelke
Gary English
Alan W. Erickson
Richard Evans
Thomas Fagan II]
Charles Fahn
Glen Fant Jr.
Jack Farenga
Earnest Farnsworth
Richard Farrell
Henry C. Faulkner
John E. Feliu
Gerald Ferte
John Ficklen III
Joel F. Fisher Il
Errol Forman
Douglas Forrest
Scott Forsberg
Kerry Foster
Robert Foster
James Fowells
Richard Francis
Ben Frazier

Paul Frederick
Luis Freyes

Don Fritch
Albert A. Fryling
John J. Fugedy
Estan Fuller
Larry Gamel
Carroll J. Gray
Henry George
James D. Gerahty
Randall W. Gibson
James S. Glasgow
Martin Glennon
Barry Gorman
Ferdinand Grau
Gerald Green
Grant Green
David Greene
Gary Greska
Arles A Grenie
Donny Griffin
Roger P. Griggs

53-A

William V. Groff
Allen R. Gruetzner
George H. Gunn
John T. Gurl
Howard Hall

Diane M. Halloran
Fred C. haney
Ronald G. Hanshaw
George F. Harn
James A. Harris
Robert A. Harriss
Joseph D. Hartley
J.T. Hartman
Patrick R. Hassett
Gregory A. Hastings
Richard Heckenberger
Alan P. Heinreich
Robert Hessler
H.W. Hiatt

Ray Higgins

James Hinsdale
William Hipps

Ben Rodgers
Janeral L. Holley
Leon Van Hoosear
James W. Hooton
James W. Howard
William P. Howley
James Hughes
Robert Huron
Culpepper Ingram
Brownie Inman
Fred Jackson
Leonard Jacobowitz
A. Jaskewicz
William H. Johansen
Gary Johnson
Charles T. Johnson
Robert johnson
Richard A. Johnson
William O. Jordan
Steven G. Kane
Theodore L. Kay
Ralph Keeler

Jessie Kent

Nazir Khan

Richard A. Kingwell

Anthony F. Klopp
David B. Kluthe
Larry N. Kritcher
Gary E. Krotz

Hugo E. Kurtz

James Laine

John Lambie

Robert H. Lampke
George Landa

Don Landry

Gordon Lane

F.W. lane

William Langel
Lawrence Langer
Chauncey M. Lapp Jr.
Richard C. Latham
Eugene F. Lavarello
Dennis A. Lazar
Robert G. Lea

Allan R. Lee

John Leonard

John A. Lewicki

Kurt M. Liebing
Anthony Lindner
Charles Link
Lawrence Link
Gustavo A. Lorenzo
Frank W. Love

H.C. Lynn

Henry B. Lyter Jr.
Steve J. Malone
William B. Mann
Jerry V. Marcinek
Edward Marino
Robert Marshall
Norman A. Mathiesen
Patrick M. Matthews
Harold A. Matt, Jr.
Peter J. Maugeri
Larry McCabe

John McCarthy
Kenneth L. McCartney
Spencer L. McConnell
James M. McCormick
D.J. McKennan
Arthur T. McKeon, Jr.
John A. McLaughlin, Jr.

54-A

James D. McRae
James A Means

Edward Mendez
Hector M. Merly

Donald K. Michael Anderlin F.

Mihalow

Terry Milanette
Daniel Miller
James Miller
William B. Miller
Charles A. Millers
Frank Miller

James V. Minardi
Paul R. Misencik
Edward Miskotten
Donald S. Mitchell
G. Mittelstaedt
Robert E. Moffitt
Donald B. Moore
Roy Moore, Jr.
Frank Morrey
Edward H. Morrison
Carl Moslener
Richard Munsterman
H. Murray

Charles Musick
Robert L. Nall, Jr.
Douglas Nelson
Ronald Ness

Peter G. Nauman
Leonard R. Nicchia
Joseph S. Norman Il
Ramon O'Neill
Eorge K. Olsen
James F. Ouzis, Jr.
Frank G. Palermo
Richard E. Parkinson
William Parr
Marcus Parram:
Leon T. Pauley
Donald Peacock
Robert C. Peacon
David Perkins, III
Albert Perry

Mark E. Petersen
Herbert W. Petersen
Carl St. Philip

ee

Hank Phillips

Terry E. Phillips
Kent R. Pinkerton
Roger P. Pipkin
Martin Potter

E.T. Powell

Leonard R. Putonen
Tilak S. Ramaprakash
Fletcher H. Rawls, III
Warren J. Redd, Jr.
Charles D. Reeh

Karl Reik

Ronald Reinholtz
Albert G. Reitan
Frank L. Richards

Robert M. Ricketts, Jr.

Douglas Rogers
Bruce J. Ross
Thomas D. Ross
J.M. Sanderson
Stanley Santiago
Detlef P. Sauer
David H. Savage
Donald N. Schanzlin
John R. Schedel
James A. Schrag
David O. Schriner
Dale H. Schultheis
Eugene Secor
Gary Self

H.J. Sewell

David Sharpe
Gary Shepard
John W. Shoun
Larry Shiver
Hussein H. Sidley
Jack G. Smith
Andrew C. Smith
David L. Smith

S. Spieker
Richard W. Standish
Donald H. Stanton
Roman L. Stevens
D.E. Steward
Wayne M. Stewart
Arthur C. Stifel, 111
Alan Stone

55-A

Edward Stone
Carey Stone
Raymond Stone
Caiyin E. Stow
James R. Strader
Kenneth W. Stradley
Robert Street
Donald B. Suong
Michael W. Suus
Otto Stupka

John L. Sullivan
Robert Sullivan
Ennis C. Sullivan, Il
Russell E. Sykes
John E. Syman
Dean H. Taylor
Robert A. Taylor
Glyn Taylor, Jr.
Carlef A. Terkildsen
Brantley D. Tew, Jr.
Steve C. Thompson
John B. Thonson III
Kenneth Thornton
John W. Tibbetts
Oliver Toole, IV
James R. Townley
Donald W. Trauger
Juam Trigo

David Tucker

J.B. Turman

J.R. Turner

Richard L. Unger
Mike Urso

Ronald Vara

Steven Vaughn
Charles Vesty

Gary Vice

Philip H. Vietmeyer
Rafael Villanueva
William C. Voepel, Jr.
John E. Voudy

Jose Vrechek
Thomas F. Walby
Tony Walker

Frank O. Walther
Donald Warren
Allen K. Watt

Og ee

J.R. Weir

A.E. Weller
Roger D. Wengert
James B. West
Robert Westphall
Robert Whitaker
Donald F, Whitley
James R. Wilkie

Jan Williams
Herbert P. Willis
Wesley Wingate
Dean S. Wright
Robert E. Zeng
Thomas J. Ziobro
Robert White

LIST OF DEFENDANTS

AIRLINE PILOTS ASSOCIATION
Henry Duffy

Randolph Babbitt
C.H. Copeland
Edward Breen

Lewis Baldwin

Gregory Petachenko

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0762%3A1. Public record. Not legal advice.