Union Organizing and Defamation

It is federal policy to encourage uninhibited, robust, and wide-open debate in labor management disputes. However, since campaigns are also subject to the rules of defamation, management should also be aware of the fundamental principles of libel and slander. To spell out a valid case of libel or slander, there must be proof that statements were false, were circulated with malice, and caused actual damages. The statements must also have been made with knowledge of their falsity or with reckless disregard of whether the statements were true or false. If the union or the company claims it was slandered, there must be proof of injury, for example, that reputations have suffered, that there has been mental suffering, or that similar quantifiable damages occurred. Most statements that are relevant to organiz- ing activity are insulated from liability for defamation.

Merely couching a false statement in the form of an “opinion,” however, does not dispel the factual implica- tions contained in the statement. Employers have some- times been subjected to defamation lawsuits when they have made statements accusing the union or its officials of criminal activity. Communications about arrests, indictments, and convictions of union officials should be scrutinized carefully before they are publicized.

To avoid inviting defamation lawsuits from a union, management should:

Be able to prove the accuracy of any statement made about the union. Describe the union or the conduct of its officials with words such as “we understandn or “it has been re- ported in newspapers that. . .” Avoid venomous and insulting language.

The Board has allowed election results to stand even when the employer or union has used insulting or vicious language. If management believes that a par- ticularly scurrilous and false statement made by union campaigners constitutes libel or slander, the possibil- ity of instituting an action against the union in state courts may be pursued with counsel. In employment- at-will situations, an employer may also discharge employees who engage in libel or slander of manage- ment or the company.

Heated Accusations Considered Normal Campaigns often give rise to heated accusations on

both sides that sometimes lead to claims of defamation. In most cases, employers offended by campaign state- ments have not received relief from the courts.

The U.S. Supreme Court outlined the extent to which libel laws may be applied in the course of labor disputes. The Court observed that labor disputes are ordinarily heated affairs and that both labor and man- agement often speak bluntly and sometimes recklessly, embellishing their positions with strong language.

The NLRB has indicated that the frankness of labor debate should not be compromised by the threat of libel lawsuits. Language that is sometime used in campaigns might be deemed defamatory in other conditions. Never- theless the NLRB does offer some protection from unjus- tifiable character assassinations. (See Beverly Hills Foodland, Inc. u. UFCWU, 39 F.3d 191.)

Recent Case A recent case tested the extent to which a union repre-

sentative could go in making allegedly false and defamatory statements without violating the law. The adversaries were Beverly Enterprises, a national provider of nursing home care, and Rosemary Trump, president of a Pennsylvania local of the Service Employees International Union (SEIU). SEIU represents a substantial number of Beverly’s employ- ees around the country. Trump’s statements were made to or about Donald L. Dotson, Beverly’s senior vice president for labor and employment. Before joining Beverly, Dotson had served as chairman of the NLRB and as an assistant secretary in the U.S. Department of Labor. Beverly sued as a result of two incidents in which Trump made allegedly defamatory statements.

Alfred T. DeMaria, editor-in- chief, is a partner with the labor law firm of Clifton, Budd, and DeMaria in New York City. He specializes in combating union organizational cam- paigns and in developing programs to keep companies operating in a union- free environment.

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The first set of allegedly defamatory statements was made at a political rally. Trump approached Dotson in the midst of a large crowd and berated him in a loud and angry voice. Trump called Dotson a “criminal” and said that “you people at Beverly are all criminals.” When Dotson tried to respond, Trump cut him off and angrily accused him of “devoting [his] entire career to busting unions.” Despite Dotson’s efforts at reasoned discourse, Trump continued berating Dotson, finally shouting at him: “I know your kind. You’re just part of that World War I1 generation that danced on the graves of Jews.”

Dotson and Beverly argued that these statements were false and defamatory as to both Dotson and Beverly Enterprises. Moreover, they alleged that Trump uttered the statements with actual malice, and that as a result of these statements Dotson and Beverly suffered dam- age to their reputations.

A federal district court judge concluded that each of the three statements at the rally were incapable of defamatory meaning because they constituted mere hyperbole and insulting rhetoric, all too common in labor disputes. The plaintiffs appealed this ruling.

The U.S. Court of Appeals for the Third Circuit agreed with the district court. Although Trump’s state- ments were offensive and insulting, they were not defamation, the court held. Vulgar name-calling and insults do not ordinarily rise to the level of defamation, the court ruled. For example, “Trump’s exclamation that ‘you people at Beverly are all criminals’ is reason- ably understood as a vigorous and hyperbolic rebuke, but not a specific allegation of criminal wrongdoing. Trump’s accusation that Dotson ‘devot [ed] [his] entire career to busting unions’ is equally incapable of a defamatory construction. . . . [Tlhe reasonable listener would recognize this statement as merely a vitupera- tive outburst which, although undoubtedly offensive, it is not actionable in defamation,” the decision said. As for the statement accusing Dotson of being anti- Semitic, it was not actionable, the court ruled, because neither Dotson nor Beverly could show they had suf- fered any damage as a result of the statement, regard- less of its offensiveness.

Second Incident The plaintiffs also alleged that Trump defamed

them in a second incident. At a “town hall meeting,” which was attended by several members of the US. Congress, a member of Congress asked Trump a ques- tion about Beverly Enterprises. In response, she stated that former NLRB chairman Dotson, “walked out of his federal government job and knocked on evidently the Beverly door and said, who knows more about all of your

unfair labor practice cases . . . than me since I have been supervising them on behalf of the government.’’

Beverly charged that these statements by Trump were the equivalent of accusing Dotson of negotiating for employment with Beverly while chairman of the NLRB and later representing Beverly in matters that were pending before the NLRB during his chairman- ship, both in criminal violation of federal government ethics laws. Further, they alleged that Trump’s state- ment had implicated Beverly as a participant in a criminal conspiracy with Dotson toward these same ends. According to Beverly’s attorneys, these state- ments were false, defamatory, and slanderous accusa- tions of criminal conduct that damaged the reputation of Dotson and Beverly.

The appeals court rejected these interpretations of Trump’s statement. It found there was not only “nothing in Trump’s statement to suggest that Dotson simulta- neously sought employment from Beverly and super- vised cases involving Beverly, but Trump’s statement suggests to us just the opposite: that Dotson did not approach Beverly until after he left his government job.”

The court agreed that Trump’s statement “undeni- ably implies that Dotson sought to capitalize on his knowledge of the NLRB’s prosecutions of Beverly in an effort to obtain employment with Beverly. Moreover, given that Dotson was a Beverly vice president at the time of the alleged statement, Trump’s statement im- plies that Dotson successfully secured his job at Beverly on the basis of his knowledge of their ongoing litigation with the NLRB.” However, those actions would not be a violation of the law. Trump’s statements did not accuse Dotson and Beverly of illegal conduct, the court found; therefore, these statements were also not defamatory (SeeBeverly Enteprises u. Trump, 161LRRM(BNA) 2708.)

Meaning for Management As indicated by this case, it is difficult to prove that

statements made in the often acrimonious atmosphere of union organizing are defamatory. Nevertheless, when a union representative makes statements that are false and offensive, it is a natural response to want redress for the perceived damage done by the statements. To win in court, however, the hurdles are fairly high, and the damage must be specific and real.

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The National Right to Work Legal Defense Founda- tion is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The

Q 1999 John Wiley & Sons, Inc.

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