Dunn v. Air Line Pilots Association

TJOFLAT, Before DUBINA HULL, Judges. Circuit HULL, Judge: Circuit pilots A group allege of airline Air Line Association—a un- Pilots labor by placing ion—libeled them them on a pilots “scabs” list. The also assert that “scabs,” listing them as the union inten- tionally interfered with their business rela- tionships with other airlines. The district court dismissed the tortious interference claim for failure to state a claim for relief. claim, As for the libel the court held on description summary judgment that the as “scabs” was not false because picket admit crossed union the 1989 strike of lines worked Air court also Eastern Lines. The district evidence of actual mal- held there was no affirm. ice. We H89 I. FACTS strike and refused to cross picket IAM lines. Sympathy A.Eastern Pilots’ Strike The Air Line Pilots Association B. List “Scabs” (“ALPA”) represents is a labor union that encouraged phots Eastern pick- to cross airline from a number of commercial by promising et lines that any phot who airline, ALPA oper- airlines. Within each returned to work promotions would receive through ates Master Executive Council to higher-paying positions. response, In (“MEC”), pilot repre- board of elected 28, 1989, on March the Eastern MEC policy sentatives makes union deci- unanimously adopted a formal resolution relating sions to that airline. “publish a finalized strikebreaking list of Lines, early Eastern Air Inc. pilots at the sym- conclusion of the ALPA (“Eastern” “EAL”) impasse reached an pathy strike” and to bring internal union negotiations its with the International charges under ALPA’s constitution against (“IAM”), Association of Machinists members who crossed the began IAM At consider strike. its lines. placed Individuals were on this list February meeting, the Eastern MEC working pilots only upon receipt of two adopted declaring a formal resolution reports confirmed they had crossed phots MEC’s intention to direct to honor lines, picket ALPA being provid- and after picket IAM lines in the event of an IAM ed with “an opportunity to refute the alle- strike. gation” they picket had crossed lines The Eastern MEC also directed its offi- fly to for Eastern. survey membership cers to to measure MEC, operations The Eastern the strike pilot support sympathy pro- for a strike to committee, striking phots and repeatedly guidance vide to the MEC’s strike deliber- working phots advised the union 16, 1989, February ation. On MEC Chair- regard would them if they as “scabs” man Bavis sent a letter to each Eastern picket crossed ALPA’s lines. For exam- phot enclosing copy the MEC resolu- ple, July 31 MEC strike committee re- expressing support tion IAM. that, port pilots pilot reminded be- “[a] day, following the Eastern MEC sent a comes scab at signs [a] [the] moment he to poh phot. “ballot card” to each Eastern go back to work.” 2,165 Nearly seventy-five percent of the phots poh who returned the bahot cards Pilots Vote C. to Continue Strike responded would honor IAM Meanwhile, the Eastern MEC was en- picket outright support lines would gaged in an sympathy MEC’s decision to call a internal debate about whether strike. sympathy to continue the Eastern pilots’ again The Eastern MEC met on March Initially, strike. the MEC convened on reviewing 1989. After the results of the 1, 1989, August and met for five consecu- phot survey conducting a last-minute days tive to review the situation. Follow- telephone poh pi- revealing stronger even discussion, ing substantial two “straw” support, lot unanimously MEC polls of the MEC members established Air adopted resolution “that all Eastern majority that a favored continuation of the phots Lines shall honor the International strike; thus, sympathy the MEC unani- picket Association Machinists lines and adopted mously a resolution to continue shall refuse to cross lines and that membership sympathy pending phots all shall refrain performing any from pilot at each local meetings base. work for EAL during the strike.” pilot meetings The first of these local 4, 1989, March On the IAM struck East- ern, August was held on 6 in Miami and broad- ALPA sympathy commenced its later, to other cities. As detailed ninety percent approx- strike. Over cast 3,400 joined imately pilots initially parties dispute Eastern what the ALPA and East- anyone who want- 6 The list was available leadership August at this said MEC ern and dis- produced it. ALPA Howev- ed returning to work. meeting about 50,000 “scabs” list. copies of the August 6 tributed er, undisputed it is “The publication was entitled This final the Miami-based meeting concluded of ’89.” of Eastern of the Strike overwhelmingly, by a Scabs voting pilots Eastern hands, sympathy continue the show of Plaintiffs-Appellants in this case meetings pilot local Subsequent strike. They list. pilots all who were on this are August 6 From yielded the same result. ALPA,1 alleging, inter brought against suit pilot meetings at commu- ALPA held alia, list publication that the of the “scabs” throughout the Eastern nication centers intentionally and that constituted libel excep- with one meeting, At each system. relationships interfered with their business overwhelmingly tion, voted phots The district court with other airlines.2 strike. continue allega- the tortious interference dismissed a claim under tion for failure state the Eastern MEC August On granted law.3 The court sum- continue the Florida tort an official decision to made mary judgment on the libel Duffy sympathy strike. President claim, had not concluding the MEC’s all ALPA notified letter, list was false or evi- shown the “scabs” explaining: “Over decision malice, for a required of actual ... Eastern have dence past week appeal now these phots have voted libel claim.4 The options their reviewed rulings. to work overwhelmingly not to return ' a structured settlement of without II. OF REVIEW STANDARD 12, 1989, August sympathy strike.” On likewise operations committee the strike reviews de novo the This Court “THE confirmed that STRIKE IS ON!! complaint dismissal of a for failure to state LINE The THE PICKET REMAINS!!” claim, construing allegations all the on pilots’ overwhelming vote remain light and in most complaint as true the widely reported in the media strike was plaintiff. to the Lowell v. Amer favorable and in internal communications. Co., 1228, 177 F.3d 1229 Cyanamid ican (11th Thomas, Cir.1999); v. 988 Harper 22, 1989, November the Eastern On (11th Cir.1993). 101, 103 complaint F.2d A pilots’ sympathy voted to end the MEC appears not unless it be dismissed the fact that IAM strike despite the beyond plaintiff prove can doubt Accordingly, had not ended. the MEC plaintiff no set of facts which would entitle made an unconditional offer'—on behalf Corp., v. Healthcare to relief. Hall Coram return to work. all —to (11th 1286, Cir.1998); Terry 157 F.3d 1288 strike, ALPA had During the (11th Cir.1989). Cook, 373, F.2d 375 v. 866 pilots who compiled a “scabs” list of summary judgment of a or fly East- Our review crossed union lines to for der is also de novo. See Eastman Kodak ern. ALPA added the names of other Servs., Inc., 504 Image over time. Co. v. Tech. U.S. crossover new hires parties agree law Plaintiffs-Appellants 3. The that Florida controls 1. The also sued certain except preempt- individual executives in ALPAand in the East- dispute to the it is this extent opinion, we refer to all of ern MEC. In this by law. ed federal Defendants-Appellees jointly the as "ALPA” or the "Defendants.” summary judgment motion There was Duffy by ALPAand Defendants and Bab- filed Plaintiffs-Appellants filed suit in Flori- 1996, 12, April separate and a sum- bit on court; da the case to circuit ALPA removed mary judgment motion filed Defendants the South- United States District Court for the Baldwin, Breen, Copeland, and Petachenko ground ern District of Florida on the 22, 1996, incorporated April which (not here) pilots' certain claims issue The two motions raise first reference. governed by Railway the federal Labor nearly § Act. identical issues. See 28 U.S.C. 1441

H91 10, pilots alleged n. 112 2081 n. 465 S.Ct. existence of a busi- (1992); 265 Harris v. H & W relationship particular 119 L.Ed.2d ness with a airline. (11th Co., Contracting 102 F.3d They alleged instead publica- ALPA’s Cir.1996); Council v. Carriers Container tion of prohibited the scab list them from Assoc., Inc., Mobile S.S. obtaining employment any commer- Cir.1990). (11th review all evi- words, We cial airline-in other it inter- dence and all factual inferences therefrom pilots’ ability fered with the to sell their most favorable to the non- light general community. labor Such moving party. allegation is insufficient to a claim state intentional interference with a business re-

III. TORTIOUS INTERFERENCE lationship; we therefore affirm the district CLAIM court’s dismissal this claim. pilots’ We first consider LIBEL IV. CLAIM claim for tortious interference with busi relationships. ALPA ness moved dis claim, Turning pilots’ libel we 12(b)(6) miss the claim under Fed.R.Civ.P. initially applicable discuss Supreme Court upon for failure to state a claim which precedent why the “scabs” list granted; relief can be the district court explain why false. We next the district granted the motion. See Dunn v. Air correctly court held that the 1989 strike Ass’n, F.Supp. Pilots Line lawfully why called and ALPA’s inter- (S.D.Fla.1993). pilots challenge pretation of its governing rules is entitled dismissal.5 judicial Finally, deference. we address the lack of evidence of actual malice. law,

Under Florida the elements anof interference with a business relation Supreme A. Court Precedent (1) ship claim are: existence of busi law, Under Florida libel is de (2) relationship, ness the defendant’s fined as unprivileged publica written (3) knowledge relationship, of that an in tion of injury. false statements that cause unjustified tentional and interference with Bank, See Delacruz v. Peninsula State relationship, injury resulting (Fla. 1969). So.2d 2d DCA How relationship. from the breach See ever, Supreme Court has instructed Tours, Cotton, Tamiami Trail Inc. v. partially preempts that federal labor law (Fla. 148, 151 1983), So.2d 1st DCA in aff'd (Fla. policy state libel law because national labor 1126, part, relevant 463 So.2d 1127 1985). speech, open communication, favors free relationship,” pur A “business disputes. and in robust debate labor Old poses prong, require of the first does not 496, Dominion Branch No. Nat’l Ass’n the existence of a agreement. contractual Austin, 264, does, however, Letter Carriers v. id. It 418 U.S. require See a rela 273, 2770, (1974); 94 41 tionship S.Ct. L.Ed.2d 745 particular party, with a and not just relationship a Linn v. United Plant Guard Local general with the busi Workers 14, Allen, 53, 57-58, 657, 15 community. 1 ness See Ethan Inc. v. 383 U.S. 86 S.Ct. (1966). Manor, Inc., 812, Therefore, Georgetown pub 647 So.2d L.Ed.2d 582 when (Fla.1994). complaint, 815 In dispute, their none of lished the context of a labor a claim; complaints relationships 5. consequently, The filed three different business suit; complaint prior repleading this each modified the would have been futile and would complaint. only The interference with business re- have resulted in a second dismissal un- reason, 12(b)(6). lationships part pilots’ claim was sec- der Rule we not For do complaint. pi- require party replead following ond ALPA contends that the a claim a 12(b)(6) right appeal preserve lots waived their the dismissal dismissal under Rule ob- jections appeal. because after dismissal of claim to the dismissal on See Wil- replead Corp., failed v. interference with business son First Houston Inv. final) 1235, (and (5th Cir.1978), relationships in their third com- vacated oth- 1237-38 959, 442, plaint. disagree. pilots presumably grounds, We er 444 U.S. 100 S.Ct. 62 nothing had to add to their interference L.Ed.2d 371 1192 proof convincing of clear and concerning plain- quirement

defamatory statement presents a inquiry and plaintiff affects the court’s only if a shows tiff is actionable summary judg- at mal- formidable obstacle made with actual was the statement ment). 65, Linn, at 86 S.Ct. ice. 383 U.S. to state- requirement malice (applying emphasized has Supreme Court organizing cam- during union ments made “commonplace” epithet “scab” is that the Carriers, at 273- Letter 418 U.S. paign); disputes and is a factual in labor Linn to (interpreting 94 S.Ct. if only a libel claim but support that will disputes). apply to all labor Linn, actual malice. and made with false 657; 60-61, Letter at 86 S.Ct. 383 U.S. “actual To show malice” Carriers, at 94 S.Ct. U.S. by clear and con plaintiff must establish Indeed, Letter Supreme Court’s Carri- speaker made evidence that vincing “ defamation decision involved “scab” ers knowledge ‘with the statement explained that “the where the Court suit disregard of false or with reckless was ” disputed pub- only factual statement or not.’ Letter Car whether it was false appellees the claim that lication is riers, (quot at 94 S.Ct. 2770 418 U.S. Carriers, at Letter 418 U.S. scabs.” New adopted by analogy from ing test exam- Supreme 2770. The Court S.Ct. Sullivan, 254, 280, v. 376 U.S. York Times in which “scabs” was used ined the context (1964) 285-86, 710, 11 L.Ed.2d 686 84 S.Ct. naming appellees held that and for First Amendment (setting out standard factually true and therefore “scabs” on state defamation law and restrictions failed, appellees’ stating: claims plaintiff bears the burden of stating being knowing Rather than a reckless or “convincing actual malice with proving falsehood, naming appellees as scabs Welch, clarity”)); also Gertz v. Robert see literally factually true. One Inc., 323, 342, 2997, 41 94 S.Ct. U.S. accepted generally definitions (1974) (clarifying that New L.Ed.2d 789 join “scab” is “one who refuses convincing requires York Times “clear union,” Third New Interna- Webster’s malice). addition, proof’ actual ed.1961), Dictionary (unabridged tional knowing the test of reckless or “[b]efore undisputed appellees and it is met, falsity must be a false can be there join in fact refused the Branch. Carriers, fact.” statement of Letter Thus, 282-83, In Letter a defa Id. at 86 S.Ct. 862. U.S. S.Ct. Carriers, orga- a union escapes preemption mation claim labor-law there was even (1) fact; ongoing much only nizing campaign, if is a false statement of less there Yet, (2) plaintiff stoppage. actual or work the Su- proves malice preme description held that convincing clear and evidence. See Court Inc., not false even where used Liberty Lobby, Anderson v. 477 U.S. “scabs” was context, simply gathering of a union’s 106 S.Ct. 91 L.Ed.2d 202 supporters.6 re- (explaining how New York Times’s met, dissent, knowing falsity piece trade reckless or can be As noted the literature, Scab," be a false statement of fact....” union entitled "Ode To A there must However, 284, this Id. at 94 S.Ct. 2770. accord- was on the front cover of the scab list in Court, ing A case "The of Eastern of the to the the rhetoric in "Ode To entitled Scabs loose, “obviously Although Supreme Court Scab” was used here in a Strike of ’89.” figurative the union’s epithet in Letter "scab” is a sense to demonstrate Carriers held disagreement support strong with the views of the factual that will a libel malice, oppose who unionization” and was claim if false and made with actual workers representation Court pejorative of fact. Id. The the Court clarified that the defini- not noted that Jack London’s definition of tion of what a "scab” is in Jack London’s further piece of trade hyperbole” "Ode a scab "has become familiar To A Scab” was "rhetorical literature; according undisputed tes- protection and was entitled under the fed- union 285-86, published timony it been at S.Ct. in this case has eral labor laws. 418 U.S. 94 publications in union over the explained 2770. The Court the lest countless times ”[b]efore

H93 Carriers, Supreme with committing In Letter Court the criminal offense of falsity in a explained 285, further libel case treason.” 418 at U.S. 94 S.Ct. 2770. perspective must be examined from the or The reasonable reader approach has understanding of the reader. The Su- been consistently by Supreme followed followed the reasonable preme Court read- Court and this Circuit. See Masson v. approach developed earlier in Greenbelt er Inc., 496, New Magazine, Yorker 501 U.S. Cooperative Publishing Association v. 515, 517, 111 S.Ct. 115 L.Ed.2d 447 Bresler, 90 S.Ct. U.S. into (inquiring meaning “the a state- Bresler, L.Ed.2d 6 In the defen- conveys ment to the reasonable reader” position dants had characterized the explaining that a “statement is not plaintiff negotiations in certain as “black- considered false unless it ‘would have a mail,” trial, plaintiff and at had recov- different effect on the mind of the reader damages theory ered for libel from that which the truth pleaded would defendants knew he had committed no ”) Sack, Libel, produced.’ have (quoting R. Supreme such criminal offense. The Slander, (1980)); and Problems 138 Keller reversed, holding Court this use of Co., v. Miami Herald Pub. F.2d word “blackmail” legalis- should not be (11th Cir.1985) (“Appellant’s strictly tically construed as the commission of the literal interpretation ignores the nature of way criminal offense of “blackmail” but the a cartoon and how cartoons are traditional- reasonably a reader would perceived have ly understood those who view them: Carriers, the word. In Letter the Su- interpretation ‘[Such an] does construe preme quoted Court Justice rea- Stewart’s [the as the common mind cartoon] would soning in Bresler: but [it] understand is tortured and ex- simply impossible It is to believe that a C.B.S., Inc., treme.’ v. Valentine reader who reached the word “black- (11th Cir.1983) curiam).”). (per mail” in either article would not have exactly understood what was meant: B. “Scabs” List Was Not False public wholly legal was Bresler’s Applying precedent, this we examine negotiating proposals being that were whether the “scabs” list was false. criticized. No reader could have falsity, place assessing we the “scabs” list thought speakers that either the at the undisputed in the context of the above newspaper or meetings articles re- surrounding events the 1989 strike and their porting charging words were Bres- interpret perspec- the “scabs” list from the ler with the commission a criminal understanding tive or of the reasonable offense. reader. Carriers, 285-86, Letter at 418 U.S. Carriers, Bresler, step As in Letter our initial (quoting S.Ct. 2770 at 398 U.S. 1537). commonly examine understood defi- Applying reasoning 90 S.Ct. Carriers, perti- nitions of “scab” and “strike.” The Supreme Letter found Court nent definition of “scab” for this a reasonable reader of the union’s use of case is the term “traitor” would not who understand “one refuses returns' charging appellees the union “to be work before strike has ended.”7 Like- years wages contrary last 30 or more.” Id. S.Ct. or under than conditions prescribed by those a union.” Webster's Dictionary Third New International 2022 (1986). quoted The definitions are from the 7. The various definitions of a "scab” in the dictionary, 1986 version of the which was the "(1): labor context are: one who refuses (2): current version when the "scabs” list was join a union a who a member of union published in 1991. The definitions remain refuses to strike or returns to work before a (3): unchanged in the 1993 version of the accepts same strike has ended a worker who employment replaces dictionary. See Webster's Third New Interna- or a union worker dur- (4): (1993). ing Dictionary a strike who works 2022 one for lower tional 1194 the interpretation of galistic or literal definition

wise, commonly understood the that tempo- undisputed It “a words used. in a labor context is “strike” of leadership result- by body a of work- called ALPA’s of strike rary stoppage work compliance stoppage; that to enforce union work designed ers ed a massive hours, (as lines; or changes wages, that as picket were union demands there conditions) employ- made on working percent phots of Eastern many ninety as sym- that the 1989 undisputed It is er.” that a initially; fly refused to for Eastern to enforce com- designed was pathy strike up com- was set and local strike committee demands. with such pliance that operating; munication centers were during that returned to work Plaintiffs Thus, facts undisputed under majority of stoppage; work here, ALPA’s list of reader of a reasonable and voted over- actually supported pilots of of the Strike ’89” of Eastern “The Scabs ALPA’s leader- whelmingly continue pilots a those interpret it as list of would though Even ship’s stoppage. called work picket lines and the union’s who crossed that ALPA’s lead- now contend stoppage. 1989 work during the worked membership had a full ership should have they admit crossed these Because first, undisputed it is vote secret ballot that 1989 work during lines to work picket pilots actually union struck East- that its listing them as “scabs” stoppage, ALPA’s stoppage work oc- ern and a massive court factually true and the district would curred. As a reasonable reader judgment on granted summary correctly understood, a “scab” of “Eastern of have failure to show falsit their libel claims for person who re- the Strike of ’89” was find other jury could y.9 No reasonable during well-publicized turned to work wise. stoppage work de- pilots’ massive that ALPA was never pilots argue with de- signed compliance to enforce failed legitimately on strike because The truth employer. mands made on an its mem- conduct a formal secret ballot of turns not on a falsity of the label “scab” by ALPA’s Constitu- bership required as formalistic, legal analysis of the va- highly the strike By-Laws. Contending tion and lidity itself under ALPA’s strike called, that pilots assert illegally but on a reasonable reader’s constitution cannot they there was no valid stoppage work perception then- to have worked when be considered Thus, describing ALPA’s Plain- “strike.” thus that striking, union was tiffs as “scabs” was not false. cannot as “scabs.” be considered explicitly sup- Supreme precedent Court argue falsity Carriers, ports this conclusion. Letter assessed in this case based should be a union’s addressing technical, legalistic definition “treason,” the plaintiffs guilty were Su- and whether this “strike” was “strike” preme explicitly explained Court ALPA’s legally called under Constitution merely be- charge union’s was not “false” however, argument, Their By-Laws. guilty plaintiffs cause the Carriers, point of Letter misses the whole “treason” in the technical sense. U.S. Linn, mandates to consider and Bresler’s Likewise, 285-86, 94 S.Ct. 2770. and reason surrounding circumstances Bresler, explained that an alle- the Court supposedly de understanding able plaintiff had committed famatory strictly gation and not the le- remarks ” F.Supp. Dictio- union terms.' Webster's Third New International nary (S.D.Fla. 1993) Collegi (citing Webster’s New (1979)). Dictionary Because all ate listing The district court ruled that "the lines, picket the district crossed Plaintiffs the scab list either is not Plaintiffs on "crossing held that all Plaintiffs court further fact, factually matter of By or is indeed correct. consti line parlance, a 'scab' is 'one who common working terms.” Id. tutes on nonunion wages works for less or on non than union

H95 in accepted should be read context as a definitions of a “blackmail” “scab” or a plaintiffs bargaining statement analysis “strike” that inform the in a libel an position was unreasonable-not accusa- part claim—much less a of the reasonable plaintiff actually tion that the commit- reader’s in reading concern the 1989 the criminal offense of blackmail. 398 ted “scabs” list.11 U.S. S.Ct. 1537. Lawfully C. Strike Was

Similarly, listing pilots ALPA’s of these Called not during as “scabs” strike was event, any In the district court ALPA’s leadership an accusation that correctly sympathy held ALPA’s 1989 strict, sympathy called the strike strike was lawfully called. ALPA’s consti legal provided manner for under its Con- provide tution does that members “will be By-Laws, and its stitution Administrative “suspension balloted” before a of service” Manual, Instead, plac- and its other rules. majority and that the vote of the MEC is ing these on the “scabs” list was an required before “a strike vote of the mem allegation during worked the un- bers.” provision general This is and called work and stoppage ion’s was factual- distinguish does not primary between A ly true. reasonable reader would under- strikes and strikes. phots stand the on ALPA’s “scabs” list to However, (1) ALPA’s constitution also be the who returned to work across vests its Board of Directors with picket authority during union lines the 1989 work manage control and the business falsity affairs stoppage.10 assessing “scabs” (2) ALPA; suit, charges a the Board with the this libel how labor strike must particular authority interpret apply called under a and be union’s consti- the terms tution, rules, constitution; by-laws, provides and whether of ALPA’s legally any dispute this labor strike was called thereun- the event of about the simply part generally constitution, der are intent or meaning of its above, credulity, suggested by quoted commonly It strains as As understood dissent, that in the face the massive work legalistic definition of a strike is not a defini- stoppage picketing, polls temporary stoppage by tion but is "a work strike, in favor of the and the com- body designed compli- of workers to enforce ongoing munications from ALPA about the employ- ... made ance demands on an nature of the strike that a reasonable reader er.” See footnote 7 infra. suggestion would infer strike called in strict conformance with ALPA’s constitution provides 12.ALPA’s Constitution I: Article simply because it was a union that used the Additionally, term "scab.” there is no evi- SECTION OF SER- 25—SUSPENSION any dence in this record member VICE during sought the course of the 1989 strike suspension When a or withdrawal of ser- injunction illegally to halt the strike as called compliance vice is called for in with the constitution, under ALPA’s but instead requirements By- of the Constitution and pilots overwhelmingly sup- ALPA’s voted to Manual, Policy Laws or the the members port actually the strike and struck Eastern. may will be balloted before action such general balloting proce- taken. Association published applying 11. We found no case Let- dures will be used. liability ter Carriers where defamation IV, 2(B), provides: Article Section imposed allegation during based on a "scab” SECTION 2—JURISDICTION AND dispute an admitted labor less on the —much DUTIES OF MASTER EXECUTIVE COUN- theory though dissent’s novel that even CIL occurred, validly strike the lack of a called approval by majority B. The vote of the a "scab” renders false as a Master Executive Council on an airline with matter of law. The truth of the "scabs” list the advice of the President [of ALPA] depends legal validity not on the of the strike mandatory before a strike vote of the mem- upon perception but the reader’s of the exis- bers of an airline be taken. This mem- dispute, tence of a labor such bership strike vote shall be secret bal- Plaintiffs-Appellants opposed of whether simple majority dispute, A of valid ballots union the labor such as lot.... returning govern. union work across lines. returned shall 1196 2. No ALPA member shall cross an- of the constitution interpretation Board’s ALPA in or- other member’s line ALPA’s Board is also au- govern.13 shall struck work. der to do ALPA develop policies, internal thorized to Manual, Part ALPA Administrative Sec- in its Administrative contained

which are added). (emphasis Dtion binding on all ALPA are Manual and Policy has remained essen- This Strike a section entitled particular, In members. tially unchanged since 1966. The unrebut- gives in that Manual the Policy” “Strike ted evidence this case shows that for the sympathy to declare a authority MEC past thirty years consistently has applied strike: its constitution and this Strike Pol- icy in the same manner as did the LINES IN THE EVENT D. PICKET sympathy strike and has Eastern 1966; A SOURCE—Board OF STRIKE sympathy called strikes without a member- AMENDED —Board ship general language vote first.14 The of provision interpreted has been this ballot 1. The decision to honor not honor thirty years apply ALPA’s Board for to shall be to picket lines other of crafts left only primary to strikes and not to second- the discretion the President and the strikes, ary sympathy also known as of involved. MEC the carrier strikes.15 of Airways VII, Saturn Int’l Bhd. of provides: Section Article Teamsters 2—JURISDICTION AND SECTION Trans Int’l Airlines Int’l of Bhd. DUTIES Teamsters gov- highest is The Board of Directors the Flight Ozark Air Lines Ass’nof erning body be of the Association. It shall Attendants Association, vested with the control of Transport Pan American Workers management general its and business af- Airways World Union decision, fairs. Its whether rendered my knowledge, the best of To none of the session, gov- shall be the ballot or in final above listed occasions was a vote of ALPA erning of the Association and shall decision purpose members taken for the authoriz- of Board, binding on the Executive ing engage sympathy to decision Committee, Officers, Executive and all Indeed, any strike. I am not aware occa- Association, subject of the to ac- members sion on which a vote ALPA members was pursuant tion of the Executive Board purpose authorizing conducted V, Article Section of this Constitution sympathy strike. Secretary By-Laws. The of the Association contrast, added). (emphasis In Mr. Rosen any ballot Board of Directors on shall general practice stated that ALPA’s been has petitioned by percent issue when fifteen only prior conducting to ballot members (15%) Board of In the of the Directors. primary strike. any dispute arising event of out of the Babbitt, Randolph president 15. J. the current meaning or intent of these Constitution and ALPA, deposition: testified at his By-Laws, the Board of Directors shall have practice primary It is our here for a strike power interpret the Constitution and procedures to follow set forth in the By-Laws interpretation gov- and such shall Bylaws. equally Constitution and It is our ern the Association in the conduct of its strike, practice, secondary there is a if there and affairs. business language specific that directs us in Rosen, long-time 14. As Seth ALPA's Director Policy proce- Manual different set of Representation, stated: we dures and would follow those. my employment In with ALPA over the last Bavis, twenty-four years John who years, I have been involved in or had experience at ALPA and is a former chairman personal knowledge close of a number of MEC, similarly of the Eastern testified at his occasions on which ALPA decided to en- deposition: gage sympathy particular, strikes. I you asking actually If are did we what me is personal knowledge following have membership do a vote of the under B, occasions on which ALPA decided paragraph my you to en- answer is no. However, gage authority duty strikes: [sic] MEC is contained in all of this section. Primary By

Year Air Carrier Strike primary And B talks about a which Hughes Corp. 1971-72 Air Aircraft Mechanics pilots' prop- could be the own strike on Air West Fraternal Ass’n d/b/a erty. particular It is silent here in this Ozark Air Lines Aircraft Mechanics talking dealing you're about Fraternal Ass'n section

H97 correctly Jury district court held D. No Issue Regarding Actual longstanding interpretation that ALPA’s Malice governing documents is entitled to its own Independently of the above rea deference, judicial subject to considerable sons, all Defendants are also entitled to if

judicial only “patently review unreason summary judgment on the libel claim be adopted able” or in bad faith. See Dow v. phots cause the produced have insufficient Joiners, 1 Carpenters United Bhd. and Indeed, evidence of “actual malice.” the (1st 56, Cir.1993); F.3d 58 Local 1052 evidence establishes that Defendants rea Carpenters United Bhd. & Joiners v. sonably believed these were “The Angeles County Los Dist. Council Car Scabs of Eastern of the Strike of ’89” (9th Cir.1991); 944 F.2d 613 penters, they undisputedly because ongoing crossed Air Pilots Protection v. Wisconsin Comm. picket during lines the sympathy strike. (7th Sanderson, 909 F.2d 218 Cir. minimum, At a the record is devoid of 1990); Newell v. International Bhd. of support evidence to a jury finding that (5th the Workers, Elec. 1189 pilots proved by clear Cir.1986). convincing and evi particular Judicial deference is dence that Defendants knew—or were ly appropriate in this libel case where reckless 'about interpretation they were “The ALPA’s is consistent with whether' — practices Scabs of Eastern of past sym its well-established the Strike of ’89.” strikes, pathy pilots participat Similarly lacking any where most evidence that De strike, leadership’s ed in the called where fendants knew or were reckless about overwhelm voted strictly whether readers would construe subsequently in ingly August 1989to continue the the terms “scabs” and “strike” according provides and where ALPA’s constitution to technical definitions than rather interpretation gov that the Board’s shall understanding common of workers who dispute. ern the event of The district picket during stoppage. cross lines a work correctly court deferred to ALPA’s inter

pretation governing of its documents. inquiry in a involying case if interpretation Even ALPA’s were some actual malice is not whether defen incorrect, how the record contains no evi imprudently in negligently dants acted or thirty-year interpreta dence that ALPA’s publishing challenged statements. See patently tion is unreasonable or that it was Masson, 2419; 501 U.S. at S.Ct. adopted bad faith.16 727, 731, Thompson, St. Amant v. 390 U.S. 1323, 20 88 S.Ct. L.Ed.2d sum, we find that the have not Rather, plaintiff a defamation must estab sympathy shown ALPA’s strike was minimum, “high lish that a defendant acted with a unlawfully called. At a there is probable ... degree of awareness of falsi interpre- insufficient evidence that ALPA’s ty” in fact of its of factual statements or “enter patently tation constitution is unrea- adopted faith. truth sonable bad tained serious doubts as to the of his question secondary interpreta- about strike. You 16. The dissent describes ALPA’s go have to to the Administrative Manual "simply "implausi- tion as ridiculous” process find out what is to follow. And arguments ble.” There are common sense that, you says when do in words to the why union members want a member- would president conjunction effect that the However, ship types vote for all of strike. decision-making the MEC is the factor question here is not what we think is best or your honor another craft’s line on pilots likely upon what would insist before a property. It of those takes both constituent Instead, sympathy ques- strike is called. agree. bodies to actually happened tion is what in this case Court should defer whether say The literal words strike vote of the interpretation ALPA’s of its own constitution members of airlines taken. It refers specific facts in this under uncontested primary property. to a strike on the Even there, record. though primary the word isn’t that is particular paragraph. intent of Masson, 510, 111 jobs striking pilots, 501 U.S. at took the publication.” sided (citations omitted); Amant St. S.Ct. with Eastern the strike. These Thompson, v. 390 U.S. S.Ct. testified, ALPA officials also without con- Welch, Inc., 1323; v. Robert 418 U.S. Gertz tradiction, in fact believed that (1974); 41 L.Ed.2d 789 S.Ct. the Eastern MEC and ALPA’s President accord Harte-Hanks Communications v. properly pilot authorized 657, 667, 491 U.S. Connaughton, S.Ct. pursuant Policy. to ALPA’s Strike 2678, (1989); Corp. L.Ed.2d 562 Bose 105 thirty-year-old poli- Given ALPA’s written Union, 485, 466 511 n. v. Consumers U.S. cy practice initiating and consistent 1949, 30, 104 80 L.Ed.2d 502 S.Ct. sympathy without a strikes formal mem- vote, bership given that majority and actual-malice re

This standard pilots actually against of the struck East- plaintiff to establish clear and quires by ern, participated stop- in a massive work evidence, Masson, 501 at convincing U.S. page, continuing and later voted favor of S.Ct. 2419; Anderson, 510, 111 477 at U.S. strike, 254, 2505, there is no evidence that that 106 S.Ct. “the defendant or ALPA Defendants entertained realized his statement was false serious subjectively that he entertained serious doubts pilots about whether these Bose, truth.” 466 [its] doubt as to U.S. accurately described as “scabs.” There- 30, 1949; n. 511 104 S.Ct. see v. fore, Holbrook we affirm the district court’s sum- Automotive, Inc., 222, Harman 58 F.3d mary judgment order on the libel claim (6th Cir.1995); Clyburn v. News pilots because the failed to show both a Inc., 29, World Comm. 33 false statement and actual malice. (D.C.Cir.1990).17 Here, evidence, no there is let alone E. Only Pilots Who Flew Eastern

sufficient evidence meet the clear and August 6 After standard, convincing that Defendants sub- The district correctly court also jectively illegally believed the strike was rejected separate argument by made cahed and it would therefore be inaccurate group pilots pick who crossed the union First, pilots describe as “scabs.” only et lines meeting after the union on important parties to note the have never (the August 6 “post-August crossover suggested anyone legal- contested the pilots”).18 These contended that ity of ongoing. the strike while it was they accurately Each could not be described as individual Defendant testified that he phots leadership who “scabs” because even if ALPA’s considered crossed ALPA’s picket legally lines to be they sympathy “scabs” because called the strike on 3, 1989, abandoned the ALPA sympathy March MEC Chairman Bavis in- Ill-will, improper personal 17. allege only they motive or ani by being were defamed mosity plays determining placed no role in whether a on the "scabs” list because no mem- taken, bership rendering defendant acted strike vote with "actual malice.” See Masson, 510, (“Ac sympathy illegal. 501 U.S. at ALPA’s strike invalid and 111 S.Ct. 2419 tual malice .. . should not be confused with contrast, Group Plaintiffs in I crossed concept of malice as an evil intent or a picket only ALPA's lines after the Miami- will.”); arising spite motive from or ill Rosen 6, pilots' meeting August based on 1989. Metromedia, Inc., 29, bloom v. 403 U.S. 52 n. Group allege I Plaintiffs did not 91 S.Ct. L.Ed.2d picket cross IAM’s lines until told to return (same). August by work on officers of Defendant ALPAand the Chairman of the Eastern MEC. Thus, Plaintiffs divide themselves into three validly 18. even if the strike was groups by Group dates. Plaintiffs in III never initially, Group called I Plaintiffs make picket honored the ALPA lines and worked argument the additional that the union lead- throughout the Group ership strike. Plaintiffs in II acted with actual malice them toward crossed picket by calling telling ALPA's lines between March them "scabs” after them to August Groups August II and III return work

H99 operations on Au- them “to return to work” MEC’s strike committee re- structed 6,1989. peatedly instructed all to remain on gust August strike. Between August 6 and meeting audiotape August of the the Eastern and the overwhelming MEC prefaced that Bavis certain remarks shows majority pilot group also voted just “[sjpeaking that he was stating continue the strike. ALPA and the East- Bavis, pilot,” “your not as elected Jack ern every pilot MEC notified Eastern ],” and that Bavis and ev- representative! Duffy this decision. President noti- speaker August meeting at the ery other pilots by fied all ALPA letter of the pilot group emphasized Eastern Duffy explained: MEC’s decision. As unity to maintain its abide past ... Over week the Eastern majority. personal decision of the Such options have their reviewed opinions in the course of a debate do not overwhelmingly have voted not to return constitute “instructions” remotely official to work without a structured settlement ranks and cross lines to break sympathy of the strike. to work on an individual basis. As return 12, 1989, audiotape August meeting August operations of the also On the strike shows, “I’m plain Bavis made not committee likewise confirmed that “THE going go personally, back to work unless STRIKE ON!! THE LINE IS PICKET in go cockpit.... we all back to work The record REMAINS!!” contains evi- gonna go pilots’ I’m not to work and cross dence of how the overwhelming back vote line.” of what the remain on in picket “[Rjegardless widely reported strike was in in outcome is terms of the decisions we the media and ihternal ALPA communi- explained, a group,” make as Bavis “we’ve cations. out, group coming

made them as a we 12, 1989, Accordingly, by August both group going make them as a back.” overwhelming Eastern MEC and the majority pilots of Eastern voted Despite audiotape, a the existence of this pilots’ sympathy continue the strike. Both still about what Bavis jury issue exists the Eastern MEC and ALPA notified all actually August meeting said be- pilots that ALPA Eastern and the MEC audiotape cause the was not an official rejected option had considered recording meeting and seventeen 12, August the strike. From terminating pilots stating filed affidavits that Bavis 1989, sympathy until the end of the strike urged pilots to return to work at the Au- 1989, in November the Eastern MEC con- gust meeting.19 pilots tinued to direct all to maintain the However, though jury even issue ex- and, lines, picket importantly, more East- Au- actually ists about what Bavis said on pilots picket continued to walk the ern 6, question there is no fact about gust in lines their Eastern uniforms. actually happened that August what after above, pilot meeting. undisputed It is As outlined the test is not what 22, 1989, post-August pilots from then until November these 6 crossover continued, pilots thought subjectively work what Defendants stoppage Eastern but lines, pilots picket uniform continued to walk knew. The test is not whether these continued, were instructed to return to thought they and the they thought continued to cross lines and to work and whether the strike Indeed, over, disputed not that was but whether Defendants includ- work. post-August Plaintiffs throughout August the rest of ed the 6 crossover MEC, ALPA, knowing and the Eastern on the “scabs” list the strike had Eastern meeting August points in the 1989. The dissent to an ALPA newsletter curred Instead, 19. charges preferred against published Bavis as evi- newsletter August dence of what was said at the 6 meet- charges were December 1989-both and the However, ing. and the the newsletter well after the official conclusion of the strike charges contemporaneous any were not on November confusion about the strike that have oc- minimum, evidence to pilots cannot there is insufficient 6. These August ended on n clear and con- knew the strike had actual malice the Defendants establish show undisputed vincing because it is evidence. been terminated stoppage the work August that after APPELLANT NORMAN V. pilots picketed until and Eastern continued importantly, More November Norman, Appellant Joseph S. Bavis’s remarks to even if these took II, pro argument an additional advances se from ALPA to re- be official instructions that ALPA acted with malice as to him.20 work, subjective impression turn to their Norman, pick he crossed the According they had ALPA’s consent to cross pilot participate et lines to Eastern’s actual pilot picket lines does establish training program, pilot. not to work as a view, subjective malice. It is Defendants’ argues Norman that he nev Consequently, phots’, not the that determines whether er in violation of the strike and “worked” list with actual malice. the “scabs” issued thus was not a scab. He cites a case holding “perma that trainee are not disagree also that actual malice is We the Rail employees” purposes nent pi- many shown because knew that Lines, way Act. Air Labor See Eastern August lots returned to work after 6 and Int’l, 920 Inc. v. Air Line Pilots Ass’n prac- ALPA’s failure to consider (11th Cir.1990). F.2d tical effect of Bavis’s statements on these pilots may disregard constitute reckless lack merit. The Norman’s contentions the truth. Bavis’s statements did not oc- Norman hired record shows that was part cur in a vacuum but as of a series of Captain Eastern as a DC-9 and received Shortly August after the ongoing events. in compensation training. while One of his majority meeting, the vast voted job requirements participate was to in the strike, August to continue the and on pilot cir- training program. Under these announced, unequivocally the union “THE cumstances, “working” Norman was Thus, practical ef- any STRIKE IS ON!!” in ordinary Eastern sense of the term. only fect of Bavis’s statements lasted until colloquial “working” It is this use of —and August particular pilots 12. These contin- legal not Norman’s classification under August through ued to work after in Railway Labor Act—that is relevant November, in end of the strike and no determining applied whether “scab” can be jury reasonable could find the strike still Consequently, to him. had no addi- appeared after 12-much August over know that tional reason to Norman less that Defendants were reckless about scab; not a his situation is therefore no appearance. such from that all other different despite who worked the strike.22 Thus, post-August 6 crossover present any have failed to evidence from VI. CONCLUSION juror which a reasonable could conclude reasons, that the ALPA it For we affirm the district Defendants believed was these grant summary judgment false to refer to them as “scabs.” At a in fa- court’s represented by also 20.Norman contends that he was not served while he was counsel summary judg served with ALPA'smotion for ment at least ten and thus does not necessitate a second ser days hearing before the vice. thereon, 56(c). required by as Fed.R.Civ.P. Python See United States v. One Colt .357 Cal. began working May 21. Norman for Eastern in Revolver, (11th Cir.1988) F.2d among pilots who and thus is not . record, however, that the re establishes August returned to work after quired upon notice was served Norman’s prior hearing. counsel nine months to the conclusion, light In of this we can also subsequently began The fact that Norman conclude that the district court did not abuse pro proceeding upon se—after service his denying in Norman’s motion for its discretion prior ruling counsel but to the district court's severance. on the motion—does not invalidate the notice Carter, Rod a Miami-based on all Plaintiffs’ libel UPS driver vor of all Defendants Teamster, dismissal of Plain- also discovered what it and affirm the claims during interference with meant to be labeled a scab claim for intentional tiffs’ stopped at a traffic relationships. light, strike. While their business pulled delivery from his truck Carter AFFIRMED. men, beaten, repeatedly “nig- six called TJOFLAT, ger,” five with an Judge, concurring and stabbed times ice Circuit part: pick. Hearing See on S.230: The Free- part dissenting dom Union Violence Act from Before pejora- is a in the labor context “Scab” Comm., Judiciary Cong., 105th Senate carries with frequently tive term that Carter). Rod (testimony 100-01 Luding- P. threat of harm. See John against Retaliation scabs summer Annotation, ton, Designation Defamation: sympathetic even extended into unions. Scab, 1000, 1009-10 65 A.L.R.4th Houston, president of the Police (1988).1 exactly discovered William West Union, Martin, Terry Patrolmen’s told his harm when he decided not to what kind of into a “go members to ‘zero tolerance’ striking join fellow Teamsters Unit- his mode, possible everything get and do (“UPS”) ed Parcel Service sum- ‘scab’ truck off the road.” Ste- UPS Callie, daughter, of 1997. Mr. West’s mer Johnson, phen Urges Police Mem- Union years old at the time and suffered was five Drivers, bers to Pull “Scab” UPS Over epilepsy kidney problems. She from Chron., 7,1997, Aug. at 1. Hous. already operations. twelve undergone think are did not the Team- Lest one the Teamsters Because West scabs, sters, only union that harms here are two who controlled his medical insur- ance, coverage. examples. During medical other United Auto cut off Callie’s Casualties, J., Winchester, Virginia, Sept. Wall St. Workers strike See Union property workers vandalized the striking at A18. “OED”) (the appeared English Dictionary on the cover of the Air Line Pilots 1. The Oxford ("ALPA”)publication: compilation the Association a of the uses of word contains rattlesnake, After God had finished the in a The first known use scab labor context. toad, vampire, and the He some not occurred in Conflict would "[t]he he a awful substance left with which made sharp had not there been so [sic] been so Scabs; two-legged SCAB. A SCAB is a animal timely many dirty No- no Doubt but soul, brain, water-logged a a and corkscrew English tice will be taken of them.” Oxford jelly backbone made of and a combination Dictionary Other uses of hearts, glue. Where others have he carries offending term scab the OED cites: ”[t]he principles. a tumor of rotten member was then termed a scab and wherev- street, When a SCAB comes down the employed society er he was no others of the angels weep and men turn their backs work;” were allowed to man who takes “[t]he heaven, gates hell and the devil shuts the engages place when that other of another right keep a to him out. No man has 'scab';” corporation struggle a with a is a pool long there is a of water SCAB as found out what it was like scabs soon "[t]he in, body deep enough drown his or a hated;” "Having given thus the charac- enough hang with. rope long his carcass 'legal,' teristics and conditions of or hon- compared gentleman Judas Iscariot was a trade, my inquiry I turn men, to the ourable next Master, betraying his he with a SCAB. For women, labouring and chil- state of the enough hang A n had character himself. employed by shop-masters, are dren who SCAB HASN’T! (or distinguished 'wages’ legal) from the birthright for a mess of Esau sold his 'scab,' ‘illegal,’ 'slaught- shops by the terms ’ ” pottage. Judas Iscariot sold his Savior for ershop keepers; is a strike ordered "If there thirty pieces Benedict Arnold of silver. scab;” going I be damned if I am will country promise a sold his for a of commis- (cita- any job.” See id. "I won’t scab man’s Army. The modern sion in the British omitted). tions birthright, his coun- sells his strike-breaker children, wife, Probably try, famous use of the term his and his fellow- the most his promise his poem generally an unfulfilled from a attributed to men for scab is from Scab,” employer, corporation. trust or Jack entitled "Ode to a which London scab, pilots a fired a airline from a of commercial they targeted as number of a woman window, airline, and left a gun through oper- her car airlines. Within each of her car. head on the hood bloody cow’s through a Executive ates Master Council The Freedom Hearing on S.230: See (“MEC”), pilot repre- a board of elected from Ju Act Senate Union Violence policy deci- sentatives makes union Before th (1997) Comm., at 4 diciary Cong., relating sions to that airline. Larson). Finally, in (testimony of Reed 4, 1989, March the MEC at Eastern On Mine the midst of United Workers pilots Airlines decided that Eastern’s strike, striking miners shot and killed Ed “sympathy conduct a strike” in con- should continuing die York for to work even junction against with a strike Eastern company he for though the worked International Association of Machinists target of the United Mine Workers (“IAM”).4 Accordingly, were di- strike. See id. stop working, rected to and not to return illustrate, examples these in the labor As agreement to work until such time as an context, with a allegation scab is factual was reached between IAM and Eastern. specific consequences. definition and See sympathy strike lasted until Novem- Dominion Branch Nat’l Old No. 22, 1989, ber when the Eastern vot- MEC Carriers, Ass’n Letter v. Aus AFL-CIO (despite ed to end the strike the fact that tin, U.S. S.Ct. ended) the IAM strike had not and direct- (1974) 41 L.Ed.2d 745 Letter [hereinafter phots ed the to return to work. (stating only Carriers that “the factual ] After the conclusion disputed publication statement in the is scabs”). produced and distributed appellees claim that If publication titled “The Scabs of Eastern of allegation is false and made with actu malice, ’89,” assertion, any al like other factual the Strike of which listed the more defamatory. id. at 94 S.Ct. at than two thousand who allegedly Cf. (finding being than “[r]ather refused to honor the strike and crossed the falsehood, knowing reckless or naming fly machinist lines to union’s appellees literally as scabs was factu appellants Eastern. The in this case are true”). (1) ally I Because conclude that who were on They brought this list. (“ALPA”) the Air Line Pilots Association’s alia, ALPA,5 against alleging, suit inter were scabs was false publication of the list constituted jury party could find for either disposed libel. The district court malice, on the of actual I issue would hold summary claim judgment, libel on conclud- that the district court in granting erred ing that the had not that shown appellees summary judgment appel on false, required by “scab” was as I, therefore, respectful lants’ libel claim.2 law. ly dissent.3 II.

I. majority, Air purporting Line Pilots Association to follow the (“ALPA”) represents is a labor that Supreme reasoning union Court’s in Letter Car- however, agree majority, "sympathy I with the 4. A strike” occurs when members Norman, stop working support aof union to show appellant Joseph libel claim of S. II grievance that a another union agement. has with man- Hence, is insufficient as a matter of law. in v. Peter See NLRB Cailler Kohler referring appellants I exclude Norman. Inc., Co., Swiss Chocolates 505- (2d Cir.1942). majority’s I concur in the affirmance of the claim, appellants’ district court's dismissal appellants 5. The also sued certain individual 12(b)(6), under Fed.R.Civ.P. that tor- ALPA executives in ALPAand in the Eastern MEC. I tiously appellants’ interfered with business re- defendants/appellees refer to all lationships with other airlines. "ALPA.” zine, Inc., 496, 517, 111 riers, statement 501 U.S. S.Ct. that ALPA’s concludes 2432-33, 115 L.Ed.2d 447 factually scabs was appellants were that a “Minor inaccuracies” do not make state thus, true; court did not and the district Id., false. 111 S.Ct. at 2433. The ment summary judg- appellees in granting err in question appel statement here is that however, follows the majority, ment. The “scabs.” To determine if this lants were reasoning in Letter Carriers Court’s false, statement we thus look at inAs Letter form rather than substance. whether a “reasonable reader”7 would Carriers, calling case involves a union ALPA, thought by appel that calling have Letter oppose it scabs. Unlike people who scabs, they people lants meant that were Carriers, however, that crossed strike; a during only who worked union not scabs.6 For lines were engage hyperbole, meant to rhetorical (that were appellants ALPA’s statement that suggesting general appel a sense scabs) true, two conditions had to be to be people. agree lants were bad I with the (1) worked for Eastern appellants met: majority’s question answer to this —-ALPA while ALPA was on they did so literally appellants people were meant appellants undisputed strike. It is during worked a union strike. who Eastern. Because ALPA flew for cannot, however, major- I agree with the strike, however, appel- on legally never ity’s allega- conclusion that ALPA’s scab during work a union strike. lants did not The reasonable reader tion was true. Thus, worked dur- the statement analysis dictated Masson ends with the a and therefore were ing union scabs; appellants statement scabs, was false. determining extend to whether does not Yes, appellants can was on strike. A. But, ALPA was only be scabs if on strike. succeed a defamation claim based To on inquire we whether was on do dis- made a labor on statements reasonable reader’s strike based falsity ac- pute, must show plaintiff Rather, perception. we determine wheth- if it A statement is false tual malice. by looking to the er a union was on strike mind of a different effect on the produces the union established for itself rules that If these by-laws.8 reader than would the reasonable its constitution followed, was not were not the union Maga- v. New Yorker rules truth. See Masson Webster's, "(1): reader is a standard in defama- 6.According is 7. Reasonable "scab" cases, (2): person join a union a mem- such as a reasonable who refuses to tion one not, negligence to strike or returns cases. I do there- ber of a union who refuses standard in fore, (3): ended quote a strike has of this to work before term in the remainder replaces accepts employment or worker who opinion. (4): during a one who union worker wages than or under condi- works for lower today majority turns labor law on its 8. The contrary prescribed by a un- to those tions courts, finding when determin- head Webster’s Third New International ion." See occurred, ing are not to look if a strike (1993); Dictionary see also ante at 1193 proce- a union followed the rules and whether n. 7. by- contained in its constitution dures Rather, at whether a courts are to look laws. in Letter Carriers found the scab The Court perceive would that reasonable reader appellants re- designation true because the words, In other union union on strike. join the Association of Let- fused to National own initiative can call strikes on their leaders Carriers, refusing join a is union ter requirement regardless their Carriers, constitution's See Letter one definition of scab. vote, "true" majority and the strike will be at 2780. In this 418 U.S. at 94 S.Ct. long people perceive it as such. Disre- case, as only possible definition of scab oligarchical garding that such an the fact apply appel- ALPA could have intended to primary purpose of practice contradicts during they worked a union lants was that workplace below, democratizing the appellants did not As discussed strike. —the unions — majority, face, strike; therefore, straight that a declares legal violate a union "strictly legalis- courts are not to consider allegation they scabs is false. were added) majority on The at various (emphasis strike. times will be balloted” before formalistic, Second, “highly, a strike is approach sug- calls this le- called. ALPA gests, majority and the gal analysis” agrees, and “technical legalis- [and] voting provisions in the Constitution and agree. tic.” See ante at 1193. I But the By-Laws strikes, apply only primary fact of the matter is ALPA’s Constitu- sympathy and not to strikes. This inter- By-laws tion and set forth the require- pretation is simply ridiculous. As an ini- ALPA ments follow order to call matter, interpretation tial this strains the sympathy its strike. did not follow English language; ordinary under rules of therefore, rules; its own ALPA was not grammar, where a noun is left unqualified, strike, legally and its applies qualification. it without For exam- scabs, i.e., appellants people who if ple, person says a that “the cars in the worked a union was false. illegally fire lane are parked,” we can safe- ly assume that he is all referring to cars in the fire lane. It would be nonsense Article I of the ALPA Constitution and himfor later to claim that he referring By-Laws suspension states: a “[w]hen only cars, to the blue green and not the ..., withdrawal of service is called for ones. Nothing the text or context members will be balloted before such ac- statement suggests applies “cars” may procedures tion taken.” be only Likewise, of a cars certain color. calling a spelled strike are out in more there nothing is the text of the Constitu- IV, detail Article which states: tion and By-Laws that distinguishes approval by majority vote of the among types of understandably strikes — airline, Master Executive Council of so, given that a strike has impact the same with the advice of the President [of on labor and management regardless of ALPA], mandatory is before a strike why the reason it is called—and it is there- vote of the members of an airline may fore unreasonable for now to claim be taken. This membership strike vote provisions that the strike in its Constitu- shall be by simple secret ballot.... A By-Laws tion and only refer to primary majority of valid ballots returned shall Furthermore, strikes. if a union were to govern. distinguish types between the two Reading provisions these together, ap- it strikes, it would be far more logical to pears indisputable that the ALPA Consti- require a membership sympathy vote for a tution and By-Laws requires a vote of the strike than for a primary strike: whereas membership before a may be called. directly workers benefit pri- from a ALPA, however, provides us with two mary strike (through renegotiated con- alternative readings provisions. of these tract), only benefits gain could The first is that they discretionary are through sympathy —in strike would be indi- words, they other procedures detail the speculative. Therefore, rect and if even taken, be followed if a strike vote is but do substantial deference is afforded ALPA’s not mandate that such a vote be taken interpretation of its governing own docu- before a strike is called. While ap- ments, see Dow v. United Bhd. Carpen- proach may plausible as to the Am., (1st Article ters and Joiners F.3d provision, IV entirely incompatible Cir.1993), membership required vote was I, with Article which states that “members before a strike could commence.9 Because interpretation” tic or literal By-Laws of the word requiring membership as not Why strike. See ante at 1193. a United vote for a strike. This tells us Appeals States Court of legalis- should not be merely interpretation that ALPA’s has been consistent, tic is unclear to me. Should a forest have no Equally not that it is reasonable. trees? question legality irrelevant to the of the interpretation is the strike fact that ALPA’s is that, Manual; majority points 9. The thirty out for over included in ALPA’s Administrative years, interpreted (the ALPA has its Constitution the ALPA Board of Directors author of taken,10 employment was with other airlines. If the was the strike no such vote called, pilots’ illegally strike was inclusion invalid. provide on the scab list would no basis for denying employment. them the con- On pilot’s a to in an trary, participate refusal legal that the was Appellees argue strike union illegal by acting called bosses properly authorized be- though not even the their scope authority, outside of would in fact the of Eastern did cause pilot the make a more candidate attractive appellants in in which the a strike engage employment. Inclusion on list for the scab This how- participate. argument, did in no the of way would demean character the ever, to for adequately fails account included, persons the but instead so would in is allegation the “scab” context which badge a be honor. true in the context being made. It is (in a which ordinary of an wildcat strike Thus, case, in the the context own to of workers decides on its group allegation only scab makes sense if the work), by a charge of made stop the “scab” called, was legally only strike because then who striking worker another worker carry the would inclusion on scab list join may well be accu- does not the strike negative It therefore a connotation. was union au- despite the lack official rate necessary assumption of the read- persons case, however, presents This thorization. ing legally the scab list strike was case, we very situation. In this different This assumption called. was buttressed intended, through ALPA must assume that by charge the fact that the was scabbing list, convey publication of the scab the union, made in being by publication the legal. contrary A as- that its strike was pursuant union to a by distributed the sumption publish- mean that ALPA would union resolution.11 those formal Under worked a list all the who ed circumstances, a reader un- reasonable Al- during illegally it ordered. strike doubtedly persons would assume that the theoretically it though possible is participate on the scab list had refused to it convey message, ALPA such a wanted valid, in a union-authorized This strike. message highly unlikely, for such a however, assumption, was false. As dem- only harm the union. would section, preceding the onstrated the Further, was list distributed not called accordance the scab was By-laws, at union’s and and other airlines and the Constitution was— Consequently, to make was therefore invalid. ALPA’s own admission—intended false, appel- phots the named to obtain scab and it difficult for manual) power interpret and ALPA strike” conclusion of the has Constitution, ignore apply against but not to bring charges ALPA all "to Article VIII Otherwise, By-Laws it. the Constitution and ALPA in accordance with [the] strike-breakers provisions, be more than default would no By-Laws.” VIII of Constitution and Article subject at whim of Board revision By-Laws ALPA outlines Constitution of Directors. procedures disciplinary by the actions against grounds members union its polled pri- weeks 10. ALPAmembers were two may brought. Un- which actions such whether or to strike declaration to see VIII, any member be disci- der Article picket line. This honor an IAM would fined, working plined, expelled for attempt by gauge the clearly ALPAto an ALPA ALPA'sAdministrative Man- an strike. members; feelings its was not—as ALPA any explains member ual further equivalent properly of a mem- concedes—the strikebreaking actual- "participates who bership whether ALPA should strike. vote on legal ly flying airplanes airline on significance poll of this is discussed automatically II.B.l, shall be ALPA-sanctioned strike greater length part infra. membership expelled from in ALPA.” af- On four weeks March 1989—about 65-12, § Manual at 271 Administrative beginning ter the of the strike—the Eastern added). (emphasis unanimously publish a fi- MEC resolved "to strike-breaking pilots at the nalized list of 1206 falsity the ciáis that the strike established element believed was

lants have properly claim. their libel authorized.13 of meanwhile, appellants, contend that B. highly under the circumstances it is im- showing to the scab addition probable actually that ALPA believed—at false, allegation appellants, was the to suc least without serious doubts—that it had claim, also on their must show ceed libel power to call a without taking the a made allegation the with actual membership. vote of the See generally words, other malice—in (11th Marchetti, 916, Hunt v. F.2d 824 919 false, knowing made it was Cir.1987) that malice in- (noting as to disregard accuracy. reckless its ferred from circumstantial and indirect ev- Sullivan, v. New York Times Co. 376 See idence). arguments support Four their 710, 254, 279-80, 726, S.Ct. 11 84 U.S. contention. (1964); Carriers, 686 Letter L.Ed.2d 418 First, appellants point out that the (ex 281-82, at 94 2779-80 U.S. S.Ct. membership requirement pat- of a vote is tending the Times New York framework to ently evident ALPA’s own from Constitu- disputes). made labor statements therefore, By-Laws. Assuming, tion and context, disregard,” “Reckless in this leadership the ALPA read its own allega means that the made the defendant Constitution, it have known must that a despite “entertaining] tion serious doubts vote was This required. seems a fair as- as to the truth” St. Amant v. thereof. sumption considering legal substantial 727, 730-31, Thompson, 390 U.S. 88 S.Ct. significance given voting rights con- 1323, 262 20 L.Ed.2d In this tained in a union’s By- Constitution and case, there are different theories —one two provides laws. Federal law a cause of argued by appellants only all and one ar action for against denying a union mem- gued by Group appellants I —concern vote, ber the if the right right to vote is ing how ALPA acted with actual malice. contained Constitution union’s theory Each is discussed this section. 411(a)(1) By-laws. (1994); § See 29 U.S.C. Stores, Inc., Christopher Safeway v. 644 (5th 1981). F.2d Unit A May Cir. appellants’ theory first is that ALPA stranger is no to this of cause ac- ALPA acted with it knew malice because tion; it has been sued on the basis of called, illegally that the strike was or at requirements federal voting rights on nu- regarding least had substantial doubts occasions, merous both before and after strike, legality published of when See, giving events rise this lawsuit. ALPA, response, scab list. maintains e.g., Ass’n, Michelotti v. Air Line Pilots that it genuinely a doubt and without be- (7th Cir.1995); F.3d O’Neill v. Air membership lieved that no vote was need- Ass’n, Int’l, Line Pilots 886 F.2d strike, for sympathy ed and thus be- (5th Cir.1989), 1447-48 rev’d on other lieved that the on the scab individuals list grounds, 499 U.S. S.Ct. In support fact scabs.12 of its (1991); L.Ed.2d 51 v. position, Klemens Air Line points to its long-standing Ass’n, (9th Int’l, Pilots policy taking administrative a mem- Cir.1984). bership Further, prior vote law calling generally state testimony provides and to the of ALPA offi- breach contract action "believed,” is, speak 12. When I what ALPA I did not act with malice. There how- referring ever, am (discussed of the ALPA offi- the beliefs substantial evidence later in responsible publication cials ALPA, subsection) for the despite its asser- Co., scab list. See New YorkTimes U.S. at contrary, tions knew that the strike was 287, 84 S.Ct. at 730. invalidly weighing conflicting called. The province evidence is matter within 13. The majority apparently finds this evidence jury, not this court. credible, to be and therefore concludes that

1207 membership union as a of its of the whole. the terms a union violates when those (Conversely, same individuals could Interna By-laws. See Constitution Gonzales, of the regardless threaten a senti- v. Ass’n Machinists tional strike — of 618-19, 923, 924, membership 2 of the as a whole—in ment 78 S.Ct. 356 U.S. manage- order to obtain a bribe from and more Finally, 1018 L.Ed.2d 14 ment.) “duty of imposes law a federal generally, that re unions representation” on fair Third, opinion poll an taken mem always in their them to act quires prior calling sug- weeks the strike two to interests, Pilots Air Line see bers’ best that ALPA doubts re- gests had serious 74-76, O’Neill, Ass’n, v. 499 U.S. Int’l power garding its to call strike unilater- 1127, 1133-34, 51 L.Ed.2d 111 S.Ct. poll questionnaires ally. The consisted that unions (1991); duty suggests such asking all members sent to Eastern ALPA their constitu to be aware of expected are following op- choose among them to members. their obligations to tional (1) picket “I an IAM tions: would honor submit, include, I obligations These (2) EAL”; “I not honor an line at would members defame “scabs” duty not to as EAL”; “My line or IAM at illegal in an participate to who refused are representatives elected MEC best law—and body In of this light decision, strike. make if and to this when qualified it—it familiarity with known ALPA’s occurs, I IAM strike and will abide an it claim that for ALPA to would be difficult decision.” The inclusion of third their require voting with the unfamiliar option telling: is if ALPA officials were contained its own Constitution power ments their confident of constitutional to honestly thought or that it By-Laws, taking membership a strike without call of the ignore requirements vote, would, most, it could ask ALPA mem- By-Laws the basis Constitution first two op- to choose between the bers policies. internal administrative feelings its gauge to tions order their membership prior making to deci- Second, union leader- the idea that the option the third availability sion. poll the not be ship required would jury to conclude could lead reasonable is so membership calling before a strike (or suspected) knew that ALPA at least unlikely it that implausible seems own, its it could not call a strike on Hunt v. actually it. See believed poll was to purpose and that (11th Lobby, 720 643-46 Liberty F.2d encourage the members to abdicate their Cir.1983) may (stating implausibility voting rights. malice). It is hard of actual be evidence in which campaign an imagine organizing investigation Finally, lack of ALPA’s workers, say leaders to the the union there is may suggest actual malice. When union, join and we’ll decide “come our Immediate publication need pressing for no strike, with- you should defamatory whether work actual malice allegation, aof approach would asking you.” investigation given Such an out be inferred if the input into any inadequate workers of direct un deprive allegation grossly is a union important Harte-Hanks the most decision der the circumstances. See Communications, Furthermore, Connaughton, system v. such Inc. makes. 2698-99, 657, 692-93, S.Ct. potential 491 U.S. would contain enormous (1989); v. Vandenburg avert a L.Ed.2d 562 management could corruption: (5th individuals, Inc., Newsweek, few simply by bribing a Cir.1971).15 case, this to the demands having respond without Prichard, 661 power City v. F.2d concentrating much In Bonner idea of so 14. The banc), Cir.1981) (en (11th of a few recalls Lord in the hands individuals phrase, ''[p]ower quoted tends Acton’s oft adopted binding precedent all deci- court corrupts abso corrupt power and absolute handed Fifth Circuit down sions of former Quotations Bartlett, lutely.” John Familiar prior October 1980). (15th ed. (and very serious—ALPA officials believed that the strike had been called accor- hoped) by labeling appellants dance the ALPA Constitution and “scabs,” they permanently prevent would By-Laws), may have nevertheless been with a obtaining employment them from malice subset made with as to a of the commercial airline. See note 25. pilots. August On months 198&—five infra circumstances, given Under those and the after the beginning of the strike —the duty representation, union’s fair the un- meeting Eastern MEC called a of all East- investiga- ion must a substantial conduct ern ALPA members the to discuss union’s tion it before decides whether to distribute meeting, course of action.17 At the the Although thoroughly a ALPA scab list. MEC, Captain chairman of the Eastern researched the whether listed individuals Bavis, striking pilots Jack said that the lines, actually the IAM crossed return to should work. the next Within investigated there is no evidence that days, appellants few several of the —known question the more foundational of whether “Group pilots I” as the to work —returned By-laws a required its Constitution for Eastern.18 Union officials other than membership prior sympa- to calling vote a subsequently Bavis announced that the instance, thy strike. For no evi- there is ongoing, strike was still and ALPA did not dence ALPA that consulted counsel a until formally conclude the Novem- strike legal opinion its to call regarding authority Group pilots ber 22. The I were therefore a sympathy without a of the strike vote on the included scab list. membership.16 In the absence of evi- such dence, jury reasonably a infer that could sequence possi- This of events raises the ALPA allegation made the scab seri- with the bility officially strike was conclud- accuracy. ous its doubts as to so, August ed on 1989. If and if ALPA list, knew this when the sum, publishing scab

In theory, under this a reasonable then jury ALPA acted with malice could for either actual as to find side on the issue pilots the I Group of malice. district if it believed The court therefore —even granting summary erred in the judgment legitimately strike been called in substituting judgment section, of a its for that the first instance. In this there- jury- (a) fore, I discuss whether was 6, and, so,

in fact terminated on if August (b) ALPA whether knew this to be the (or Even if case acted with disregard the scab made reckless was not truth) (because all malice as of the when it the Group to accused I ALPA actually and non-recklessly being believed scabs. inquired, attorney may safeguards

16.Had ALPA prevent corruption. so its ocratic See well any reading Co., have concluded that of the Mfg. NLRB v. Allis-Chalmers 388 U.S. agreement that allowed union to call 175, 180-81, 2001, 2006-07, officials 87 S.Ct. a strike membership be without vote would (1967). L.Ed.2d In the words of Archi- against public policy, void as because such Cox, key participant drafting bald interpretation would create an environment LMRDA, gains worker "[a]n individual no corruption likely which would be occur. rights by substituting human an autocratic Indeed, response it was in to such concerns tyranny union officialdom for the of the Congress passed Labor-Management Cox, boss.” Archibald Role Law ("LMRDA”), Reporting and Disclosure Act Preserving Democracy, Union 72 Harv. L.Rev. (1994) which, §§ U.S.C. 401-531 as dis- — above, cussed protects rights of union members to vote on union when business meeting 17. The was held in Miami was right such a is contained in the union’s Con- pilot broadcast to all other Eastern bases. By-laws. stitution and LMRDAreflects policy favoring federal democratic conduct appellants 18. The remainder of the either nev- activity, recognition union out of given joined striking prior the strike power er or ceased tremendous to labor unions un- by der accompanied August federal law must dem- his expressing maintains that Bavis

a. in the individual views context of debate strike could argues ALPA the future of the regarding strike. by August 6 Bavis’ have been concluded points of its to the support position, not have the Bavis did remarks because in a vote meeting fact that culminated unilaterally; authority end the strike majority in which the voted presi- had to be made that decision striking. points continue also and a the entire of ALPA vote of dent other statements made Bavis in this may well be correct MEC. ALPA he meeting, such as his statement that assertion;19 however, actual Bavis’ lack of Bavis, “speaking just pi- as Jack strike is irrelevant authority to end the going and his statement that “I’m not lot” authority to do so. light apparent of his go back to unless we personally to work Energy v. Corp. North River United See work,” to as well affida- go all back as his Am., 1184, 1192 Mine Workers of pilots vit that he never told the to cross (11th Cir.1981) (noting of a union that acts prior picket lines to November 22. Final- the committed on of union agent behalf points communiqués ALPA certain ly, to agent’s apparent of the scope within the August to as subsequent issued 6—such union, of authority regardless the “bind all August pilots— letter to Eastern authorized they specifically were whether in which it maintained that the strike was ratified”). Apparent authority ongoing. is “the or still authority tolerates principal knowingly hand, main- appellants, on the other assume, the agent allows an to or which or announcing tain that Bavis was that the the his actions words holds principal by support posi- strike was over. In of their Indus., Owen possessing.” out agent tion, they point in to seventeen affidavits (Fla. 1259, v. Taylor, Inc. pilots So.2d I that Group which various state 1978). Bavis, August the ALPA terminated the strike on as chairman of 2d DCA on basing their conclusion state- Bavis’ MEC, undisputedly agent was an Eastern They point disciplinary to ments. also possess- held out as of ALPA. ALPA Bavis by ALPA charges brought against Bavis terminate the strike ing authority the to did, “Capt. August that Bavis on the following on by placing the sentence pilots Eastern aban- publicly advise the to page the ALPA Pilots’ Strike front of to return their activities to don A KEEP MIND: Manual: “PLEASE IN Eastern, accomplishing this traito- work at BE WILL NOT STRIKE ACTION meeting ... to which the rous act EX- TERMINATED CALLED OFF OR listening via striking pilots Eastern BY THE MEC DIRECTION OF CEPT charges audio system-wide transmission” — Bavis had CHAIRMAN.” Consequently, ALPA’s are inconsistent with highly authority to apparent end the strike. the merely position that Bavis was present au- apparent had that Bavis the Given to right Amendment exercising his First strike, question next thority to the the end opinion open his in an express personal authority. he exercised that is whether addition, they point In a state- to debate. unknown,20 the are but Bavis’ exact words ment ALPA’s official newsletter striking said advised parties agree August that he ALPA National “[i]n go Eastern to back to work.”21 pilots to ALPA the pilots should return work. By- 21.Contrary majority's suggestion, see to the Although ALPA 19. the Constitution regarding is to be Laws is how a strike clear the and the ante at 1199 n. newsletter initiated, II.A.l, part they appear to supra see proffered by highly proba- charges ALPA are topic of how is to be be silent the a strike what circumstantial evidence as to tive concluded. August By way analogy, of the 6. if said on gives a check for buyer widgets the seller meeting recording pilots' No of the official seller, meeting following the the $5000 pilots unofficial Various made was made. the probative as what highly is. to the check record), (some recordings of which in the are pur- meeting regarding the parties said at the recordings incomplete or unin- are but these (I price. also submitted note ALPA telligible key places. chase statements, surrounding circumstances ALPA officials heard Finally, the Bavis’ support appellants’ argument: given and therefore knew that authority to end apparent Bavis’ published they been terminated when strike, many pilots to return addition, desire charges scab In brought list. work, consequences and the severe against by ALPA compelling Bavis are pilots returning to work violation evidence that ALPA knew he had supra see note other Also, terminated the strike. because meeting seemingly ALPA at the leaders many knew re- steps clarify have taken Bavis’ would response turned to work to Bavis’ state- if did them remarks not want to be ments, ALPA’s failure to consider the interpreted as authorization to return to practical prior effect of those statements work. calling “scabs” have consti- sum, disregard

In is a tuted reckless truth genuine there issue mate- under words, rial fact as to whether ALPA terminated if circumstances. other pilots’ August the Eastern strike on Group I induced return If against work, this issue is resolved jury reasonably could infer that ALPA, Group pilots then I are entitled ALPA at least serious doubts when it jury to a determination on whether the then turned around and called those allegation scab was made with actual mal- Finally, “scabs.” of ALPA’s lack investi- ice, as I in the discuss next subsection.22 gation into the effect of Bavis’ statements mahce, suggest II.B.l, as in part discussed

b. supra. ALPA maliciously regard acted to the A genuine issue of fact material exists Group pilots published I if it the scab list regarding Group pilots. mahce as to the I (or knowing disregard that with reckless This is an (along additional reason with the whether) toas Jack Bavis terminated the theory part II.B.l, of mahce discussed in strike on 6. In August regard, supra) why summary judgment inap- was presented has testimony post-August and propriate. 6 from eommuniqués its own officials stat- ing that genuinely it and non-recklessly

believed not Bavis did terminate the strike C. and that continuing.23 the strike was On hand, appellants the other the appellants pre- Finally, have must estabhsh sented injury substantial that publica- circumstantial evidence resulted from ALPA’s namely, of actual that other tion of hst. the scab Florida law recog- malice— Group pilots genuinely after-the-fact evidence to the district court— I believed that their namely, communiques longer discussed earlier— union was on no then support position regarding accurately its what Bavis could not be described as scabs. 6.) pilots August told Consequently, Group on if ALPA knew that I August believed strike ended on 6, then it with 22. Even'if did acted malice. Because this ALPA not in fact terminate the 6, theory presented of actual malice was August may strike on be there another theory appeal, the however, or Group pilots on district court to this court on which I can estab- I discuss no lish malice. order for further. In a worker to be a scab, he must know that his union is on strike. A worker who works violation majority, of a 23. The as with the discussion of strike of pilots, supra which he is unaware is no more a malice II.B.l, of the see part as to all military "scab” unwittingly than a officer who finds ALPA's evidence to be credible divulges security information is a "traitor”— and therefore concludes that ALPAdid not act fools, however, Again, both but light neither can be said to malice. engaged have betrayal. contrary in an act of intentional evidence discussed in the remainder And, 1, language quoted supra, as the paragraph, weighing in note of this of the evi- suggests, scabbing allegation necessarily jury, of dence is a for the not the matter court. implies Thus, betrayal disloyalty. supra if the See note per as “libel III. types of libels nizes certain presumed se,” injury meaning conclusion, appellants have estab- on present evidence plaintiff need not lished, law, as a matter the 1989 Brown, Fla. v. See Briggs the issue. illegally Eastern Airlines strike was called Under federal So. allegation ALPA’s and therefore scab however, of a law, arising a libel action out presented have evi- They false. sufficient injury, re requires proof dispute labor jury as to dence create issue whether v. Linn state libel law. See gardless of allegation was actual malice made with Am., Local Plant Guard Workers United (or knew acted with because ALPA reck- 64-65, 11 383 U.S. S.Ct. whether) disregard less as the strike (1966); Tow Pantex 15 L.Ed.2d jury if illegal. Even answered Glidewell, ing v. Corp. in the question negative other —in (11th Cir.1985).24 n. 7 words, jury if for ALPA on the found Group pilots I issue malice—the would court, granting order its district jury have a claim for libel. A nevertheless summary judgment, appellees’ motion for (1) Captain find Jack Bavis ter- could to reach the issue expressly declined 6, 1989, on August minated the strike on the injury. primarily court focused knowing the scab list published under truth the scab —and this, disregard or with reckless so, magni a case of this standably since in I whether the strike was so terminated. tude, easier to decide the case it is position take no on the third element of malice) (such as truth grounds claim, appellants’ injury. rather plaintiffs, of apply groups to broad reasons, foregoing respectfully I (such For may injury) on a as ground than dissent. inquiry into involve an individualized plaintiff.25 of Never each

circumstances

theless, may required an inquiry such light my earlier conclusions of is a and that there

scab false actual of fact as to

genuine issue material case, therefore, prop should

malice. This

erly proceedings further be remanded for position I wheth

on this issue. take no fact genuine of material

er there is a issue injury.

regarding however, way. broadly workers in some label harms the "Injury,” 24. be defined Cf. (noting supra note 11 resolved injury reputation, mental suffer- to include Linn, strike-breaking pilots publish at a list of ing, forth. 383 U.S. and so See strike, presumably conclusion 86 S.Ct. at defections). fur- preventing This is means of course, present case corre- injury is in the evidence ther confirmed certain Of instance, spondence ALPA and union mem- appellants between probative as to all —for working which by an economist bers who submitted affidavit like, that, who pilots, "[a] which claims scab list includes states out scab very change his mind in time finds only subsequent employment doesn’t three found airline, It's job with other carriers. out of difficult to find major whereas commercial just don't want to work who pilots, 136 were able other non-listed addition, recog- managements ap- employment. [sic] with scabs. Even find such doesn’t understand supported someone who pellants' allegations injury nize that are employee”; loyalty a reliable purpose publish- not make does the fact that the whole picket lines] IAM possibil- you crossed ing injury. ”[i]f [the list is cause scab last, job, job going to encourage isn’t being ity labeled a "scab” can be hard to find.” only next one could participate in a strike if workers to

Case Details

Case Name: Dunn v. Air Line Pilots Association

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Oct 25, 1999

Citation: 193 F.3d 1185

Docket Number: 97-5587

Court Abbreviation: 11th Cir.