Linn v. United Plant Guard Workers

PETITIONER:Linn
RESPONDENT:United Plant Guard Workers
LOCATION:General Petroleum Corporation

DOCKET NO.: 45
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 383 US 53 (1966)
ARGUED: Nov 18, 1965
DECIDED: Feb 21, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – November 18, 1965 in Linn v. United Plant Guard Workers

Earl Warren:

Number 45, William C. Linn, Petitioner, versus United Plant Guard Workers of America, Local 114, et al.

Mr. Livingston, before you and Mr. Spritzer get away, I would like to express appreciation of the Court to you for having undertaking — undertaken the defense of this indigent that are requested.

It’s a real public service and we recognized of this such and we’re thankful to those lawyers who will undertake such cases.

And of course, we appreciate the vigorous and very able manner in which Mr. Spritzer represents the government in this case.

Spritzer:

Thank you very much Mr. Chief Justice.

Earl Warren:

Mr. Welday.

Donald F. Welday:

Mr. Chief Justice and members of the Court, may it please this honorable Court.

We present a case wherein — as we have recited the issue, there seems to be some difference of opinion as to what the actual issue is in this case between our position, the position of the respondents and that of the Solicitor General.

But we think that we have accurately phrased it, when we said that has Congress in enacting the National Labor Relations Act exempted from the jurisdiction of the state courts, all rights and all remedies in the case of nonviolent tortuous conduct even though there maybe — committed even though there maybe some kind of a labor dispute or relations or incident involved.

Has it been the intent of Congress to deprive an individual of his right of action for tortuous conduct committed against him in the state courts or in this case, a federal court because of diversity of citizenship.

The facts, on December the 7th, 1962, Mr. Linn who is the petitioner here, was an Assistant Regional Manager for the Pinkerton National Detective Agency.

And he had under his — or in his area the Detroit, Michigan area, and on that date, December 7, 1962, a leaflet was published and delivered to various employees of the Detroit office of the Pinkerton National Detective Agency.

In that leaflet, Mr. Linn was expressly referred to by a name, described as a manager.

Also in that leaflet, it was said that the Pinkerton managers have been lying, have been cheating, have been robbing, and perhaps maybe subject to criminal penalties.

There was no Labor Relations matter, no labor dispute, and no incident up to that point.

One year previously, on the 7th of December in 1961, there had been a certification election for the Pinkerton employees in the Detroit office — the bargaining agent which had represented those employees up to that point was voted out.

So on December the 7th, 1962, when this leaflet was published, there was no problem, there was no dispute, and there was no incident.

Byron R. White:

Was there an organizing campaign?

Donald F. Welday:

It was said in the Circuit Court’s opinion that there was an organizational campaign.

Abe Fortas:

What does the record show?

Donald F. Welday:

The record does not show.

We don’t know.

Now it has been alleged here in the facts, in the respondent’s brief that this was an organizational campaign.

And very frankly, we don’t know whether there was an organizational campaign.

There had been an election a year previously.

But up to this point, — insofar as we know, and insofar as this record is concerned, there had been no organizational campaign.

Byron R. White:

Was there any evidence on this campaign?

Donald F. Welday:

No, sir.

This is one of the features of this case, is that there is no evidence at all in it.

Really, it’s a question of whether or not we can present evidence.

Donald F. Welday:

Subsequent to the circulation of this leaflet, which contained language which was — and assumed to be by the Court of Appeals, clearly libelous insofar as the petitioner here is concerned, the petitioner’s employer filed an unfair labor practice charge with the Detroit office to the National Labor Relations Board.

Now the petitioner did not, of course, he is an intermediate supervisor employee of the Pinkerton Detective Agency, the respondents here are that group which apparently sought to represent the guard employees of the Pinkerton Detective Agency.

But the Pinkerton agency filed an unfair labor charge.

Within a matter of a few days, the petitioner here filed his libel action.

The local office of the National Labor Relations Board acting upon the Pinkerton, the employer’s application, refused to issue a complaint.

Byron R. White:

The charge was based entirely and exclusively on this —

Donald F. Welday:

Based exclusively on the leaflet containing the defamatory material — yes sir.

Earl Warren:

As I understand you to say that Mr. Linn was specifically mentioned in this —

Donald F. Welday:

Yes sir.

He was specifically mentioned —

Earl Warren:

Where does —

Donald F. Welday:

Pardon.

Earl Warren:

Where does his name appear?

Donald F. Welday:

The leaflet had about 14 or 15 pages and in one place —

Earl Warren:

Well I’m reading — I’m reading with complaint.

Donald F. Welday:

It is not — we don’t describe the particular place in the complaint.

The complaint does say that Mr. Linn was elsewhere named in the leaflet.

I have the leaflet here.

I can’t tell the Court exactly where it appears.

The complaint says that he was named.

And the complaint was it — or the leaflet was attached to the complaint as an exhibit.

What we recited specifically was the language used which we claimed was libelous reciting that it referred to — the language said the managers have been doing this.

Mr. Linn was otherwise and elsewhere named as a manager and we attached the entire leaflet to the complaint as an exhibit.

Earl Warren:

Where do we find that?

Donald F. Welday:

I don’t see that it was printed in the record, sir.

Earl Warren:

But how can we act on it if it isn’t in the record that you — and that do put in your complaint here what the dodger said?

Donald F. Welday:

What — well, I don’t think really, the question of whether or not Mr. Linn was otherwise named has ever been raised either in the Court of Appeals, certainly not in the District Court, not in the Court of Appeals, and it has never been an issue as to whether or not, Linn was in fact named in the complaint.

I think that —

Earl Warren:

Well you just told — you just said he was — he was named in it and I identified it in your complaint.

Donald F. Welday:

No, it is —

Earl Warren:

It is not in the record.

Donald F. Welday:

It is not in this record.

No, sir.

William O. Douglas:

I’ve noticed on page five of the record, paragraph six that the complaint alleges that plaintiff is and was one of the managers referred to.

Donald F. Welday:

Yes sir.

William O. Douglas:

Now those managers are the ones described in paragraph five, is that right?

Donald F. Welday:

Now, you’re speaking about paragraph five of the complaint on page four of the record, sir.

William O. Douglas:

Yes.

Donald F. Welday:

Yes.

William O. Douglas:

Is that — is the circular that is quoted in paragraph five of the complaint in the record?

Donald F. Welday:

The entire circular?

William O. Douglas:

Well you quote they are now that we find out Pinkerton had a large volume of work and so on.

Donald F. Welday:

Yes, sir.

William O. Douglas:

Is that quoted — is that in the record the whole circular?

Donald F. Welday:

The whole circular was submitted as an exhibit to the complaint in the District Court.

My recollection, I don’t recall whether it was certified to the Court of Appeals for their considerations.

William O. Douglas:

But it’s in the District Court records.

Donald F. Welday:

It is in the District Court record.

William O. Douglas:

Is that record here?

Donald F. Welday:

Pardon.

William O. Douglas:

Is that record here?

Donald F. Welday:

I don’t’ know sir.

William O. Douglas:

Could you see that it gets here?

Donald F. Welday:

I can certainly furnish a copy of the entire record or of the circular which ever, Your Honor, would desire.

William O. Douglas:

Oh we would only go on what — what was before the District Court.

Donald F. Welday:

I appreciate that, sir, and I’ll see to it that that if that complaint or — excuse me, if that circular is made available.

But again, I say that it is — there has been no question about what Mr. Linn was in fact described elsewhere in this circular as being one of the managers.

Factually then, if I might go on, the National Labor Relations Board, the local office in Detroit, refused to issue a complaint on the Pinkerton complaint, finding certain facts, finding as a fact that the respondents here had no part in the preparation of this libelous material.

Now the National Labor Relations Board did not have a hearing.

They made this finding of facts after some kind of an investigatory process.

Donald F. Welday:

An appeal was taken from that to the general council of the National Labor Relations Board.

And he sustained the local opinion not to issue a complaint.

Now these things were brought to the attention of the District Court.

We feel that they had really no part in the lawsuit filed by the petitioner here.

But nevertheless they were brought to the attention of the District Court.

Also, a motion was made to the District Court to dismiss the petitioner’s action on the now familiar Garmon language that if an activity is arguably subject to Section 7 or 8 of the National Labor Relations Act, it is preempted to the National Labor Relations Board and the local courts would have no jurisdiction.

And it was specifically, on that ground, that the District Court dismissed the petitioner’s complaint was no hearing was ever held before the National Labor Relations Board or before the District Court the truth of falsity of the allegations.

The libelous material has never been gone into.

It has never been pursued at all.

But as a practical matter, it never can be under the District Court’s opinion in this case.

When the complaint was filed, it was filed against the Union, its two principal officers, and another man by the name of Doyle.

And the allegation was that they acted in concert in preparation of this libelous material.

Earl Warren:

That was before the Board, the complaint for the Board.

Donald F. Welday:

No, this is the complaint before the District Court.

Earl Warren:

For the District Court.

Donald F. Welday:

This is the lawsuit.

Earl Warren:

How did it initiate before the Board.

Donald F. Welday:

The Pinkerton people filed a complaint before the Board.

This petitioner did not and could not as a —

Earl Warren:

At the point of the manager as you say?

Donald F. Welday:

He was the acting or the — yes, the acting District manager in Detroit.

But as a practical matter, he receives orders in his headquarters or the people that tell him what to do or in New York City.

He’s not autonomous by any means.

And the action was taken through the direction of his home office in New York City.

And he had absolutely nothing to do with the filing of the complaint before the National Labor Relations Board.

Earl Warren:

Was he in any way before the Board?

Donald F. Welday:

No, sir, not at all.

Earl Warren:

Did the Pinkerton people offer any evidence to the effect that the Union was involved in it?

Donald F. Welday:

Yes, requests were made by the local National Labor Relations Board of a written statement of the respective positions of the Pinkerton people who had filed the charge and the Union as a respondent to it.

Insofar as I know, no other investigation was undertaken by the Board.

Donald F. Welday:

Certainly, nothing was done insofar as this petitioner is concerned.

Earl Warren:

Yes.

Donald F. Welday:

Doyle, who was the last named defendant in the original lawsuit, was not dismissed from the case.

He did not join in the motion to dismiss.

And the order of the District Court dismissing the lawsuit as to the defendant union and its officers specifically said that the — with dismissal of the other defendants, I’m reading from page 37 of the record in the District Court’s opinion.

With dismissal of the other defendants, both suits are reduced to simple common law tort actions.

Local 114 has disclaimed any responsibility for the activities of defendant, Doyle, and this disclaimer has been upheld by both the regional director and the Office of Appeals of the NLRB.

If as alleged, Defendant Doyle libel Pinkerton’s or Linn, this is a private matter which may aptly be resolved in this Court if usual jurisdictional requirements have been satisfied.

We find that curious.

We can’t really understand one; how the principle of Garmon which was relied on by the District Court would be applicable to the respondents here and not applicable to Doyle.

And number two, we find it interesting that the District Court apparently adopted as findings of fact for its use and which would govern the petitioner here, those things which the National Labor Relations Board had found in a matter involving the petitioner’s employer and these respondents, where this petitioner never had an opportunity to be heard.

So really what we have —

Potter Stewart:

The —

Donald F. Welday:

Yes sir.

Potter Stewart:

Did the Board — that wasn’t the Board finding, was it?

That was the administrative —

Donald F. Welday:

It was an — yes sir, it was an administrative finding.

It was not a Board finding.

It was a — the reason for not issuing the complaint in the first instance.

Potter Stewart:

But had decided at the administrative level by the regional —

Donald F. Welday:

Yes sir, by the regional director.

Potter Stewart:

And then approved by the general counsel.

Donald F. Welday:

And confirmed by the general counsel.

Abe Fortas:

Why is Doyle, a Pinkerton employee?

Donald F. Welday:

He was a Pinkerton guard.

Abe Fortas:

And he is the defendant, same Doyle, referred earlier.

Donald F. Welday:

Yes.

Abe Fortas:

And as I read this, perhaps I’m wrong and I hope you correct it, so the District Court dismissed the action as to everybody except Doyle, the Pinkerton employee, Doyle did not move, did not join in the motion to dismiss —

Donald F. Welday:

That’s correct, sir.

Abe Fortas:

— is that right?

Abe Fortas:

And the Union disavowed somewhere in these proceedings any responsibility for Doyle as their agent or instrumentality, is that right?

Donald F. Welday:

Yes sir.

Yes sir, that’s correct.

Abe Fortas:

Now as I read your complaint, you did not allege that the defendants were responsible for preparing the material and you alleged — in paragraph five as they conspired to mail and circulate and publish by mailing and circulating, is that right?

I think you said the contrary moment ago, I just want to see if I am incorrect or misunderstood.

Donald F. Welday:

May understand —

Abe Fortas:

It’s paragraph five on page four of the record.

Donald F. Welday:

That during the times aforesaid, the defendants which would be the — all of the respondents here and Doyle did conspire to maliciously publish of unconcerning plaintiff by mailing and circulating.

Abe Fortas:

By mailing and circulating.

Donald F. Welday:

Yes sir.

Abe Fortas:

And then you say they compared.

As I read this —

Donald F. Welday:

That’s yes — yes, you’re right.

You’re right.

Abe Fortas:

As I read this sir, I get the impression of both the Board and the Court, you’re saying that Doyle referred to be an employee may or may not have been the man that prepared and circulated this publication.

But to use it, there was no evidence connecting him with the Union for this purpose.

Donald F. Welday:

I don’t think they came to the first question but the second proposition which we put, I think is what the regional director did — conclusion.

He did come to — that there was no connection between the Union and Doyle.

Abe Fortas:

Is there anything in these papers before this Court to indicate whether Doyle was “also a union member or an official of the union”?

Donald F. Welday:

Nothing before this Court, no sir.

I might — so I don’t completely give up the point, paragraph four of our complaint which is recited on page four of the record that all of the defendants named in the complaint did conspire to libel and defame plaintiff.

I suppose that if I had to argue, I would say that that — that language and that pleading I now candidly concede it’s not the best.

But I would argue at an appropriate point that it could be used to allege that the Union people did participate in the preparation of the libelous material.

Potter Stewart:

I suppose, under Michigan Law and that’s what governs here is that the action (Voice Overlap) —

Donald F. Welday:

— law which —

Potter Stewart:

Substantive law of Michigan I suppose that circulation of a an amatory statement, nearly libel just as much as you’ve written — or not, I don’t know.

Donald F. Welday:

Under the —

Potter Stewart:

Publishing one and circulating one is generally —

Donald F. Welday:

Well, yes as a — certainly as an aider and abettor than a conspirator in the perpetration of what is in effect crime in the State of Michigan, not in effect with this — by statute, a crime in the State of Michigan.

Aiding and abetting in the conspiracy would all make everyone libel as principles whether it be just published or whether they all set down at the big table and grafted this material.

Donald F. Welday:

The upshot of the District Court’s position left this plaintiff in a position where he felt that he had been libel with malice grievously and there was absolutely nothing that he, as an individual, could do about it.

The Court said that under Garmon, the Court can’t do anything about it.

The National Labor Relations Board wouldn’t hear the complaint of this petitioner’s employer and we point out that even if they had agreed to hear it, there wasn’t a thing that the National Labor Relations Board could do under any circumstances to restore this citizen and this individual to a position where he would have been before he suffered a personal injury.

And we submit that libel is a personal injury, that it’s a serious one, and that it’s a grievous one.

The Court of Appeals affirmed the District Court’s action specifically on this Court’s opinion in Garmon and pointed out the interesting proposition, as the Sixth Circuit interpreted it.

Garmon says, an individual might quickly recover from the — I interpolate somewhat, an individual might quickly recover from the bruises and wounds of a physical assault and that little expense have a crimpled fender bumped out.

But a lifetime may not be sufficient to restore a reputation hurt by the circulation of a vicious libel.

We are persuaded however, that Garmon has drawn the distinction which permits the one to be remedied by traditional court action and limits the other to the relief, if any, that may come from an order of the NLRB.

And if a regional director’s refusal to issue a complaint is sustained, the libeled individual is at the end of the remedial role.

Mr. Linn is at the end of the remedial role under this interpretation of Garmon.

Very frankly, Mr. Linn doesn’t like that situation and he feels that there must be some place where the truth can be established.

Is Mr. Linn a crook and is he a liar, and is he a thief?

Does he have to go through life because of National Labor policy branded this way?

Or may he not, in a court of competent jurisdiction refute these allegations, and may he not clear his name.

We think that in some respects, this case raises the issue which was suggested and foretold in the concurring opinion in Garmon and also suggested in Mr. Justice Douglas’ dissent in the Borden case.

That is, has Congress prevented a resolution by the courts, what is essentially a private dispute, a personal injury tort?

When that dispute incidentally arises during the course of what might be called the labor relations incident.

When we say it might be called a labor relations incident, because in this case particularly, there was no incident, there was no dispute.

There was nothing.

People went to work and all of a sudden, there was a circular distributed.

Curiously enough by following Garmon, the national policy which we think is to promote the peaceful settlement of labor problems if we promote or if we allow Garmon, the interpretation of Garmon that was attached by the lower courts in this case, then we’ve created the dispute where none existed.

If we say that libel is an activity which nothing — no court can remedy, which no court can hear and the National Labor Relations Board maybe might do something about it, then in effect, we give a license to libel.

We create disputes and we think in some respects that the position of the respondents here isn’t asking for a license to libel.

Because the practical issue has to be faced that no order of the National Labor Relations Board could do anything about can possibly correct or stop that pass line.

Ultimately, it may say don’t ever libel again.

Don’t ever defame again.

But it can’t do anything about what has transpired in the past.

And we think this is a license.

We think this creates a dispute where none has existed.

The answer to whether or not libel may be prosecuted even though there is a labor incident attached to it, the answer to that question, we think, comes from the dissenting opinion of the Chief Justice in the Russell case, commenting on the Laburnum case.

Donald F. Welday:

Laburnum simply holds that a tort-feasor should not be allowed to immunize himself from liability for a wrong having no relation to federal law simply because the means he adopts to affect the wrong, transgresses a comprehensive code of federal regulation.

And that I think in a nutshell is the situation here.

The tort-feasor has committed a wrong which incidentally is involved with the National Labor Relations Act, the National Code.

But otherwise, it has no connection to it.

It’s essentially a private dispute between Linn on the one hand and those people who happened to be connected with a labor union on the other hand.

I think there is no possibility of a competition between the courts in this matter and the National Labor Relations Board.

They’re looking for two separate and distinct approaches.

The Board’s approach is, does a given circumstance, does a given incident, is it coercive?

Not truth.

That’s not the issue before the Board.

Is it coercive?

The court is concerned with the truth regardless of whether it is coercive or not coercive.

It makes no difference.

These two tribunals then are looking in different directions.

They can decide these issues.

They can hear these issues without any relationship to each other, without any competition between each other.

And if the problem, if the reason for the preemption doctrine of Garmon which is what has controlled this case so far is a prevention of competition between the national policy and the various substantive laws and modes of regulation of the several states.

That competition problem is not present under this set of circumstances because the tribunals are not looking towards the same answer.

The Fourth Circuit, in the Bouligny case which we understand is before this Court but on another question, but the Fourth Circuit summed up we think, the whole proposition in one neat little sentence.

The question before it in part was the jurisdiction of a Court to hear a libel permit or committed in the course of some kind of a labor incident.

And the Fourth Circuit said the National Labor Relations Act is concerned only with the coercive effect and it is not concerned at all with the effect of libel as a common law tort.

That’s what we’re concerned with here.

And Mr. Linn says, this petitioner says, can I clear my name?

Can I have this matter heard?

I don’t think it is any answer to say but the matter will still be heard in relation to the remaining defendant Doyle because, if we go back to the District Court and we try the matter insofar as Doyle is concerned and if we prove everything which we have alleged in our complaint.

And this case is the — the decisions are allowed to stand as they are up to this point, then we approve the complete defense of Mr. Doyle because he’s a part and parcel of the Union and he is in concert with him and Garmon would preempt the action.

So it is no answer to say that the matter still remains viable insofar as Doyle is concerned.

We are —

Potter Stewart:

All we know so far is that the labor board at the administrative by all how that he wasn’t part and parcel of the Union that he wasn’t the member that he had and he wasn’t their agent.

Donald F. Welday:

That’s correct and you —

Potter Stewart:

And you had alleged that he is.

Donald F. Welday:

No but we alleged that they acted in concert.

Now —

Potter Stewart:

But you don’t allege that he’s part and parcel of the Union.

He could act in consult without being part and parcel of the union.

Donald F. Welday:

Well I appreciate that, sir, but would it not also create the same kind of a defense that the Garmon rule has created so far.

That’s why I say if we go back and prove everything which we’ve alleged in our complaint, we are very likely to be met with the same defense.

And suppose we go back and try the case against Doyle and he says, “Ah, but I’m going to prove that I wasn’t member of the Union.

Doyle hasn’t been heard from either.

And the mere fact that the National Labor Relations Board has made this finding on what evidence we don’t know, just a disclaimer is not going to resolve the issue in the District Court.

Potter Stewart:

How can we and I’m asking this for information.

I’m a little puzzled, a little troubled maybe.

Maybe without reason but how can we deal with this case when and all we know so far is that there’s going to be a finding that Doyle was not an agent of the Union and that the Union was not at all responsible for this libel?

Donald F. Welday:

I think, we can let the Court hear that question in the first instance.

That’s what we want to do.

That’s what we’re appealing.

Can the Court hear this?

Potter Stewart:

This question — the question isn’t before us.

The question that’s been brief and argued and your argument here really isn’t before us unless he — unless Doyle was and is an agent of the Union, isn’t that correct?

If he’s just a man, Mr. Doyle, third party, then the whole question has been briefed and argued here isn’t really here.

Donald F. Welday:

No, I’m afraid I can’t agree with you.

Potter Stewart:

Now it says this is just John Smith who libeled your client.

And John Smith not a member of any Union, and not an agent of any Union and then whole question is part of us isn’t here at all, was it?

Donald F. Welday:

Well, but the question before the Court here is not whether John Smith did it.

It’s whether or not we can go into Court and prove that the Union did it.

Insofar as Mr. Linn is concerned, the individual who some place in the middle between the worker down here and the employer up here, he stands in the middle.

Now what can he do?

Can he file a lawsuit alleging that the Union and its officers libeled him and somebody else too, maybe a whole group of people.

That doesn’t make any difference.

We’re concerned only with the part in it that the Union is playing and the District Court said, “No, you Mr. Linn, cannot do this because the act says that you’re an employer by definition, even though you’re just a supervisor and you have to take directions too.

Donald F. Welday:

So you can’t do this.

You must get whatever relief you can get from the National Labor Relations Board and the Court of Appeals says and they can’t give you any.”

And as a practical matter, Mr. Linn has no right to go before the National Labor Relations Board only if he can persuade his employer to file a complaint.

And the Board will hear it.

So he is in a real state of limbo insofar as this circumstance is concerned.

We suggest to the Court that —

Abe Fortas:

Suppose — excuse me.

Donald F. Welday:

Yes sir.

Abe Fortas:

Suppose that Mr. Doyle were a Pinkerton agent and Mr. Linn is a Pinkerton agent too, would that make any difference with respect to the jurisdictional issues here?

The jurisdictional issue I mean in effect, where these assumed jurisdiction.

I take it, let me say by to clarify that, I take it that you’re presenting the possibility that this would be a different case the purposes of this basic issue.

If the plaintiff had been in the company rather than a Pinkerton agent.

Donald F. Welday:

Yes.

As a matter of fact, the company, the employer filed a similar libel action against the same defendants and respondents and that was dismissed in the District Court and no appeal from that was ever taken.

We concede that that is a far different case, yes.

Abe Fortas:

What you’re urging upon us the proposition that Mr. Linn being, let us say a stranger to the company, has no remedy at the NLRB and according to this decision, no remedy in it, is that right?

Donald F. Welday:

Yes sir.

Although he is not really a stranger, he is a part of the managerial staff.

But in effect he —

Abe Fortas:

Managerial staff of the —

Donald F. Welday:

Of the employer.

Abe Fortas:

Of the employer.

Donald F. Welday:

Yes sir, in a supervisory capacity.

And because he is a supervisor, under the definitions of the Act, he is the employer, whereas in effect and in practical matter, he’s some place between the man on the bottom and the man at the top but he is by definition an employer.

Abe Fortas:

But you’re saying that you cannot accredit to Mr. Linn the disabilities if any of the employer’s legal position.

Donald F. Welday:

Not under this peculiar circumstances where it is alleged that he is maliciously and deliberately libeled.

And it is his reputation, not the company’s, it is his personal reputation which is challenged.

And that is our position.

When that happens, then it’s essentially a private dispute.

And when that happens, he should, regardless of whatever Garmon has said, have the right and access to the courts.

John M. Harlan II:

Do you contend or don’t you that even under Garmon, this libel is not arguably either protected or prohibited by the Act?

Donald F. Welday:

We have in our brief said that the libel is not protected by Section 7 nor is it prohibited under Section 8.

John M. Harlan II:

The Garmon (Inaudible) as you and I both know it that whether or not, it’s arguably so.

Donald F. Welday:

This is correct but Garmon also says may fairly be asserted is words in place of arguably, may it fairly be asserted.

And it would seem to me that if it is not and it may not fairly be asserted that it is.

Section 7 and its legislative history demonstrates that no unlawful activity is a protected activity.

And no standard definition of unlawful activity is given in the Act or in the Section 7.

Therefore, I would assume that what we generally conceive under the definitions of the several states as unlawful activity must be what is meant in Section 7.

Earl Warren:

We”ll recess now.

Thurgood Marshall:

Which substantial sums have been sought in defamation suits growing out of statements made doing labor disputes.

Now this will give you an idea of importance of the issue because these suits seem to be a relatively new phenomenon in racial — I mean in labor relations.

But that tendency to discourage vigorous organizational campaigns is obvious.

Significantly many of these suits set out in our appendix involve words which although probably defamatory under traditional criteria of libel and slander cases, nevertheless cannot fairly be said seriously to injure the reputation of the parties to a labor dispute.

Claims that an employer is unfair or that is using the big live tactics of Hitler, or then an employee is by hiding tax, and draw him into driveway.

Let me point out, that most American jurisdiction, the law of defamation is quite strict.

Casual use of the words like liar or cheat, or unfair may expose one to heavy general damages, even though actual injury to one’s pocket book may not be proved.

It is the Board and this Court has recognized Union organizing campaigns tend to be heated affairs in which the participants would get themselves and speak intemperately.

Indeed, I imagine some of us know some labor leaders that if you prevent him from cursing, you take all that free speech away from them and a negotiation that goes on.

And it’s recognized its feelings run high rough languages not in frequent.

Such campaigns of organizing in a labor dispute, they’re not conducted in the language of the college classroom or the drawing room.

Words and other context might constitute serious insults are generally viewed by the participants in labor disputes as no more than ordinary rough and tumbled organizing tactics.

Unfortunately, many courts apparently have not recognized this fact of industrialized so that if the courts were permitted to apply the traditional strict standards governing what is defamatory to statements made during union organizing campaigns and the same measure of damages were applied.

Many of the typical comments invariably and inevitably uttered during such campaigns could subject the speaker to very heavy damages.

To impose strict defamation liability of the participants in such campaigns could thus throw a real monkey wrench in to the scheme of National Labor Relations Act.

Instead of the parties to the dispute being able to talk out and indeed curse out their differences in a board supervised campaign and election.

The dispute would in effect be dragged into the courts to be fought out as any other defamation action.

This would be most disruptive, further it’s unnecessary because the kind of abuse that might in other context cause real harm or ordinarily be discounted were made by a party on the other side of a labor dispute.

We say then that the policy and integrity of the federal labor scheme simply cannot count on its unlimited liability for defamations arising from Union organizational efforts.

The unbridle existence of the threat of heavy damage of words but defamation added during the cause of union organizing campaign would have to say the least of killing effect upon the freedom of communication that is so necessary to the exercise of the employee’s statutory right under Section 7 of the Act to bargain collectively, to represent it as of their own choosing.

Union organizers would be most reluctant to speak out freely and inevitably if they knew that words which a customary employee in such campaigns, well it might seem defamatory to persons not familiar with the actual conduct of labor disputes or to judges and juries hustle to the goals of the Union could subject them to heavy damages.

Thurgood Marshall:

The probable effect of permitting such suits would therefore be to tort the effective exercise of these granted statutory rights.

But we also think that there’s an area in which the State would be able to grant a remedy for defamation.

After all, the States traditionally have had a strong interest in protecting reputation and in awarding damages for injuries thereto.

And therefore, we think the federal scheme should be viewed as displacing the same state authority in this area only to the extent necessary to protect the federal scheme of labor relations throughout the country.

There are some kinds of defamation which are so harmful and unjustifiable that the State interest in that suppression is compelling and as to which suppression would involve no appreciable danger of serious interference with federal labor policy.

State power of such defamation is needed not and should not be deemed preempted.

William J. Brennan, Jr.:

(Inaudible)

Thurgood Marshall:

No sir, they are defamatory in the general sense of the word.

William J. Brennan, Jr.:

Let me take the scale.

Thurgood Marshall:

They would be in the general — Harper and James or any of the books, they say yes.

That is defamatory statement but it is not the type of defamatory statement that we have here.

We’re not trying to setup a federal standalone defamation.

William J. Brennan, Jr.:

Well, if I understand you’d say that the — if this is not serious —

Thurgood Marshall:

Then —

William J. Brennan, Jr.:

(Inaudible)

Thurgood Marshall:

Then this —

William J. Brennan, Jr.:

To say that the State could not provide —

Thurgood Marshall:

Yes.

William J. Brennan, Jr.:

— the remedy you like.

Thurgood Marshall:

That the State could not apply its libel law to that situation just like this Court says that the State statute on restrain of trade is alright but they can’t use it in a labor dispute.

The state law stays as it is.

They just can’t use it when it runs up against the federal interest in the policy of the NLRB.

Potter Stewart:

Suppose —

William J. Brennan, Jr.:

But then I gather you say the words what the — characterizes serious then.

Thurgood Marshall:

Malicious —

William J. Brennan, Jr.:

By default could be applied only to the extent of allowing the Republic for knowing the reckless —

Thurgood Marshall:

Right, yes sir.

And not punitive damages in those particular —

William J. Brennan, Jr.:

Not punitive damage —

Thurgood Marshall:

In those situations.

William J. Brennan, Jr.:

Only compensatory damages and only annoying and reckless falsity where the defamation, alleged defamation and serious.

Thurgood Marshall:

And it seriously injures the party involved.

And it’s a broad stroke –-

William J. Brennan, Jr.:

(Inaudible)

Thurgood Marshall:

As you’re getting ready to say Mr. Justice Brennan, it’s a very broad stroke of a brush.

But it’s the first opportunity and a necessity for doing so and it’ll — it will work itself out as the cases go along but it would be very difficult to say this one falls in.

One, we are sure of, reasonably sure if somebody calls at the present day calls one side or the other communist, certainly that’s quite serious and if it’s maliciously done, I would assume that the States would have perfect right to —

William J. Brennan, Jr.:

(Inaudible)

Thurgood Marshall:

It would be that — it would depend on the State’s situation.

That’s why we wouldn’t want that to be left to the individual states.

The NLRB in the cases that come up before them where, a language like that is used, they have almost consistently said it’s not grounds for relief —

William J. Brennan, Jr.:

No matter what —

Thurgood Marshall:

–and the type of relief.

William J. Brennan, Jr.:

No matter what section we’re going to apply.

Thurgood Marshall:

Yes, yes, sir.

You see their decisions apply all over so that it will be uniform.

That’s what we’re asking here.

We would not want to see in some area, for example, there might be an area in the country where to call a management unfair, they would consider that to be libelous.

Hugo L. Black:

If you get one dictionary then, who’s going to draw that dictionary words?

Thurgood Marshall:

I think certainly, Mr. Justice Black, a dictionary will come up over a period of lawsuits.

Hugo L. Black:

Who would decide?

Thurgood Marshall:

The courts.

Hugo L. Black:

The courts would decide whether there was serious that have to come under the Act?

Thurgood Marshall:

Yes sir.

No serious enough to be preempted.

Hugo L. Black:

Serious enough the Court would decide —

Thurgood Marshall:

With the — well it would be tried —

Hugo L. Black:

State court?

Thurgood Marshall:

If it was in a state court, I would assume that the state court would have to decide originally, yes sir.

Hugo L. Black:

Then that would define the labor board of any chance in the outset to preserve the jurisdiction over that, wouldn’t they?

Thurgood Marshall:

I think the labor board could intervene as amicus.

Hugo L. Black:

In the state court?

Thurgood Marshall:

Yes sir, I don’t know whether this has ever been done or not.

Hugo L. Black:

That would be a pretty bad mix, wouldn’t it?

Thurgood Marshall:

That would be really confusing to me.

It just came on.

I don’t know whether they can or not.

William O. Douglas:

Is your department, Mr. Solicitor General considered whether or not, were to feel now, it is companion field or the same field, as New York Times versus Sullivan.

Thurgood Marshall:

Yes sir, we argue that in our brief.

We argue — the United States against Sullivan and the — which Griffin, and Garrison where we argued both of them but we don’t’ think frankly, we don’t think that the Sullivan case is exactly our case at all.

But what we are interested in is that just the threat of a possible suit for damages will definitely hold back a labor union and in a certain area.

And in another area, it might hold back management.

And the very threat of it was freedom of speech.

William O. Douglas:

Of course that’s the whole philosophy of New York Times case.

Thurgood Marshall:

Yes sir, I said the philosophy, yes, that’s what I meant on it, that the — I would hate to see a labor official trying to convince people and win his point and be afraid of what possibility there would be for liable action against him, and a few of them could really do it — that’s the real danger we see in it.

But at the same time, we don’t go right full tilt along with the violent cases where this Court has made it quite clear when violence moves in the State keeps its control.

William O. Douglas:

Well violence isn’t free the speech.

Thurgood Marshall:

Well, (Inaudible) case had said that it can in very well involve violence down the line.

And I don’t think that the State should be stripped of that if either side in organizing campaign really destroys a man’s reputation for good.

You take the man’s business could actually be ruined if in certain areas this country you said it was a communist or a Nazi.

I mean he might not — he might win or lose — might lose election –- but will lose his business too.

And we don’t want.

That’s why we don’t want to see this Court say that all of it is preempted.

So then we tried to find something in between and we tried to draw these guidelines.

Abe Fortas:

General —

Thurgood Marshall:

Yes sir.

Abe Fortas:

If you start from the point of view of the NLRB jurisdiction, perhaps it would seem that the more extreme the language, the more malicious, the more outrageous the language is, the more the interest the NLRB might have in it in the sense that it might – that’s a sort of case, might more readily rule to be an unfair labor practice than a more general and polite terms of abuse.

Thurgood Marshall:

Well, the cases as I read them with the NLRB decision, that usually comes up when the union member uses some very good language and he subsequently discharged.

And he comes up on that and then the Board actually decides as to whether the language is —

Abe Fortas:

Yes, but take the present case.

Abe Fortas:

This is a case where an unfair labor practice complaint was made to the NLRB.

Now if the language was totally extreme and as outrageous, outrageous enough to come within your definition.

And it occurred in the course of a labor dispute, would it seem that to you that the NLRB might have more interest and not less but more interest in it, than if the term abuse were within the limits of the polite jargon which you have so vividly described as being customarily used in these situation.

Thurgood Marshall:

Well I would think definitely that they would have a greater interest in it and I think that the —

Abe Fortas:

So that isn’t — it doesn’t that solve the paradox in here in the formula that the department has proposed.

Thurgood Marshall:

Well, the real trouble is that if the NLRB finds that this Union is given to — you have an unfair labor practice in what they call management, there’s nothing they can do.

They can’t give management damages.

That’s the real problem.

It’s a double assault.

Abe Fortas:

And as if the problem I was trying to get some more light on your answer.

Thurgood Marshall:

Well, I mean, I started off with saying, this is a real difficult one and I wish we could draw most specific lines that would make a better presentation but we run into that real difficulty.

The state laws on libel, slander of course very strict yet bare this in mind that whereas in the violence cases, if the man sues for damages for assault and battery and the jury is a rather hostile jury to labor unions and they’re bringing an outlandish verdict.

The judge can very clearly set that aside because there are certain guidelines about a broken eye or broken arm.

But as we find in these liable cases, there’s no stand that a judge can use on the verdict.

If an outlandish verdict comes in, it’s pretty hard for the judge to put his expertise over that as a jury.

And we therefore think that in this is a more important area to keep away from the state courts as much as we can and at the same time, leave the state what it needs to maintain its peace in good order.

And at the same time, it’s in keeping with the national policy of the NLRB as I see it that in this freedom of speech, it not go beyond certain limits.

You don’t recklessly destroy a man’s reputation.

Because if you do, then you provoke the violence which the whole act was said people to keep away, I think the two are tied in together.

But the only thing I am sure of that the government and the NLRB itself do not want it left wide open.

We’re convinced that if it’s left wide open, there’s an inherent danger of destroying what was intended to be the complete freedom of speech.

And then the other one is we — we’re stuck in between the two I think.

Hugo L. Black:

May I ask in connection that —

Thurgood Marshall:

Yes, Mr. Justice.

Hugo L. Black:

— replacement about the New York Times but we said in Thornhill, I thought of Thornhill which had never been impaired in this date and I repeat that a number of other cases that in a circumstances or valid times the discretion of matters in connection to the labor dispute to be considered the same as all other questions affecting public affairs.

Now if that’s the case, would it be necessary to protect your right to speak here in connection with these elections, the same as it would be a voter’s right to speak, on official right to somebody to criticize the officials?

Thurgood Marshall:

They’re very — they’re very close.

That’s why I think it is closer to the Sullivan case.

I think the interest of the federal government is that the person be given a different kind of leeway when he’s in the area of convincing other people.

Hugo L. Black:

But of course I think as you rather graphically stated at the beginning, we have to realize that these labor disputes general rules of the like conversation are thrown away —

Thurgood Marshall:

Absolutely.

Hugo L. Black:

— and there are many abused many serious guide was made all of the time, what effect would it have, if every time one of them makes a serious charge whatever a serious charge is.

If they can hold a union liable for damages, would that likely foster the peace of tranquility of the relationship between them and would it permit labor unions to survive or would they be destroyed?

Thurgood Marshall:

I think labor unions in some areas could be completely destroyed and I go even further that many unions, the threat would do just as much harm as the judgment.

William J. Brennan, Jr.:

(Inaudible)

Thurgood Marshall:

It is a usual procedure.

William J. Brennan, Jr.:

(Inaudible)

Thurgood Marshall:

Yes sir, they’re several on their way up here.

And they ran the gamut in one case which I don’t think we have here.

In one case, the Union said that so and so the employer pays horrible wages.

He only pays a dollar and 10 to down 50 cents an hour.

And the truth of the matter is that the average is a little bit more than that.

And they’re so liable that because that far, what I mean what do you do.

William J. Brennan, Jr.:

I mean is that right to prove a judgment?

Thurgood Marshall:

This one is being held pending the outcome of this case.

William J. Brennan, Jr.:

(Inaudible)

Thurgood Marshall:

Well these are all pending.

The Board gets it.

They really don’t know how many are still pending but as of the time, it was filed there were —

Abe Fortas:

Mr. Solicitor General —

Thurgood Marshall:

Yes sir.

Abe Fortas:

Is there anything in the law, which you could tell us about that would preclude an action by the company.

Let us say the employer against the individual who uttered the libel, even if it were held that action against the Union is precluded.

Let me try to restate that.

It’s conceivable that the doctrine might be that the NLRB jurisdiction prevents libel action between the company and the Union based upon the events and the course of a labor dispute.

Is it your understanding that that doctrine would necessarily also preclude an action involving the individual’s concern rather than the employer and the Union as such.

Thurgood Marshall:

I am afraid we don’t know.

Abe Fortas:

But if the answer to that is that the action against the individual propriety and individual concern against the individual concern leaving out the company and the union.

And if that were possible then at least in theory, it might not leave the parties that directly concerned without any remedy whatsoever.

Thurgood Marshall:

Well, there are, as I understand under the Act, if there is a ranking file worker who has a grievance against a supervisor and employee, he can’t bring — he can bring certain types of actions.

Thurgood Marshall:

In other words, two individuals can use the Board.

That’s the only nearest thing I know.

William O. Douglas:

Of course, if you’re right on the philosophy of the New York Times case you’re not bothered with this question of preemption.

Thurgood Marshall:

Oh no sir.

I think that, if we can successfully use the Sullivan case to get into the exceptions which have grown up under the Garmon case, then I think we’ve made our point complete which is what I hope we’ve done.

William O. Douglas:

It wasn’t one of the cases.

Thurgood Marshall:

I think so.

If there are no more questions — thank you sir.

Earl Warren:

Mr. Livingston.

Winston L. Livingston:

Mr. Chief Justice, Associate members of the Court.

Prior to commencing argument, I should like also to make reference to factual matters that was touched on in an argument by the petitioner.

The record does affirmatively show that Mr. Doyle was not a member or agent or an officer of the Union.

That’s on page 50 and 60 of the record.

In conjunction with this, the record also affirmatively shows that the National Labor Relations Board at the administrative level did conduct a full scale investigation.

The affidavit of Mr. Bilbri(Ph) in the record shows the extent of the investigation.

They even checked the original membership card of Mr. Doyle to ascertain that he had not been a member for almost a year.

The third point discussed by petitioner which I believe needs clarifying such an effect that there can be no question that under the National Labor Relations Act, Linn, as an individual has the right to file a charge.

Section 10(b) of the Act starts out when it is charged and the Board has said that any individual has the right to file a charge so that Mr. Linn did have access to the procedures and policies of the National Labor Relations Board.

Although the issue in this case is narrow, I think it’s important to the furtherance of our National Labor policy cannot be under estimated.

We would define the issue in the following terms.

Shall a further exception to the preemption doctrine stated in San Diego Building Trades versus Garmon be made in cases of claim defamation uttered in the context of a labor dispute.

Respondents urge that no such exception should be made.

It is not necessary nor even desirable.

On the other hand, any such exception would create havoc and confusion in this area which has so many times been described as an area of delicate balance between the competing interest of the federal government and our National Labor policy and those of the state.

We believe the exception urged by respondent would destroy the effect of Garmon which has been so successfully followed by the lower courts since its decision in 1959.

The exception proposed by respondent would open a wide area of conflict between the federal labor policy and the policy of the 50 different states relating to defamatory statements in this labor relations field.

Respondents cannot accept either as workable, the limited exception proposed by the government in its brief.

Respondents assert in its brief that Garmon was not the end of the preemption road.

Respondents believe it was, is, or should be the end of the preemption road.

I think just a brief review of the background of all of the preemption cases that gave rise to Mr. Justice Frankfurter’s decision in Garmon would throw a light on the reason Garmon — the Garmon rule was enunciated and the reason it has proved so workable since that day.

Winston L. Livingston:

Mr. Justice Frankfurter noted that the preemption issue there was a variant of a familiar field.

The notes that preemption began with Allen Bradley versus Wisconsin Board and was greatly intensified by litigation which flew from the enactment of the Taft-Hartley Act.

And the preemption issue was brought before this Court in almost a score of cases during the decade immediately preceding the Garmon decision.

Thus there were a large number of cases stating specific areas of preemption and also delimiting state areas of conduct.

The titles and propositions of these cases are familiar to every labor law practitioner and I’m sure to this Court Hill versus Florida, UAW versus O’ Brien, Garner versus Teamsters, Weber versus Anhieser Bush, and a host of others.

Now in the Garmon decision, Mr. Justice Frankfurter hold together this almost score of preemption cases.

He reconciled them and concluded that over the years, a clear pattern had evolved from the previous decisions.

And he stated that this — that with Garmon, with the decision in Garmon, it may safely be claimed that this long series of adjudications have hope translated into concreteness, be consistently applied principles which decide this case.

What was the clear pattern?

The familiar test of an activity that is arguably subject to Section 7 or Section 8 of the Act.

This clear pattern recognized only two exceptions.

One, the -– then just preceding decision in the Gonzales case relating matters of peripheral concern, the other was in those cases which touched so deeply and local feelings that state should be allowed to intervene i.e. conduct marked by violence and eminent press of the public court.

It’s a very simple rule.

It has proved very workable.

To use a colloquial expression was the greatest thing since the bow and arrow to practitioners in the field and to the judges of the lower courts.

I think only a review of all of the cases pending in the lower court on this subject in this area of libel showed that the federal court would — or the federal courts and the state courts, the judges that have been called upon to decide where their libel and slander occurring in a labor dispute is preempted by Garmon almost unanimously hold in applying Garmon that it is preempted.

Byron R. White:

What if somebody not through any intentional violence but simply through negligence, why does somebody get kicked him and his leg is broken, do you think Garmon will hold that he has no right of action against the organizer who negligently kicked him them and broke his leg?

Winston L. Livingston:

No sir, I did not.

I think that —

Byron R. White:

Why not?

Winston L. Livingston:

Because it gets into the area of the physical touching violence.

Byron R. White:

No violence, I say by hypothesis, no violence, I mean, no intentional violence at all, just a negligence.

Winston L. Livingston:

Well it would be a touching tort as distinguished from this case a non-touching.

Byron R. White:

Garmon.

It doesn’t have anything to say about a touching tort, does it?

Winston L. Livingston:

No, sir, it does not.

I make that incurred of it.

Byron R. White:

Because what you’ve told is what you — part of your version of what this Court decided, there wouldn’t be no right of action for that kind of a negligent tort.

Winston L. Livingston:

Well, I think the important thing too in that situation would be the accidental kicking of another in the chin would have no relevance or relationship to Labor Relations policy and —

Byron R. White:

We can by my — I’m inventing this case and maybe it will never happen but by hypothesis, it does.

Byron R. White:

It’s in the course of picketing or of an organizing campaign, or by my hypothesis, it has — it’s in the course of something that’s protected or arguably protected or prohibited by the Act.

Winston L. Livingston:

That is correct but I would not — I would not say that such would be preempted by Garmon because of the distinctions which I have just stated.

The substance of this point is that the trial judges at all level understand Garmon and they know how to apply it.

And without exception, when they do apply it they hold that Garmon preempts all activity or conduct that does not involve violence or eminent threats to the public peace.

Let’s say the Supreme Court of Pennsylvania in the Myer’s decision however held that Garmon did not apply to this type of action.

On the other hand the Supreme Courts of Arizona and Alaska had held Garmon applied to this type of action.

As the district judge in this case had no trouble in applying Garmon finding preemption, the Court of Appeals likewise.

I don’t believe that anyone, any party can seriously dispute that Garmon is the case to be considered in this context.

So the first question is the activity of Mr. Doyle arguably protected by Section 7 are prohibited by Section 8.

I believe this point is so clear that it does not require any extended discussion.

Here was an employee appealing to fellow employees to support the Union, to support self organizational efforts during an organizing campaign.

The statements were certainly relevant.

The petitioner never really challenged that it was not protected or prohibited until filing a brief in this case.

The government concedes that if Garmon applies, the statements would be protected under Section 7 of the Act because if the statements were true, then clearly such statements would be protected, therefore, it is arguably so.

We further submit that the trial court which made the statement that it was prohibited by Section 8 was also correct.

It could arguably be prohibited by Section 8.

The petitioners recognized this.

I should I say the petitioners but the petitioner’s employer recognized this by filing a charge before the National Labor Relations Board alleging a violation of Section 8(b) 1(a) which is the section prohibiting a union or others from interfering with restraining or coercing employees in the exercise of their Section 7 rights.

The other point which must be considered —

Byron R. White:

Excuse me, this is your point here.

That you are suggesting that the bringing of this suit violates the Labor Act?

Winston L. Livingston:

No sir but I do suggest that as another part of the argument that in many instances, the institution of a libel suit such as this suit may violate the Act because it may have a coercive effect upon a union’s organizational right or during the course of the labor dispute.

A small union with very limited funds that is faced with a — half a million or a million dollar lawsuit such as in this case may very well conclude that it will bargain away any right to organize the employees for the company dropping the lawsuit or dismissing it.

It may also scare the employees to where they will be afraid to engage in any activity.

And I might say — state this parenthetically — earlier Mr. Doyle mentioned quite frequently, he apparently still is in the case.

Although this does not appear in the record, I thought it might be of some interest after the charge was filed and the suit was filed against him and he was served, he went back to England and has never returned.

I’m not saying that this may have been the result of the lawsuit but the fact is that it is mentioned so that it will explain why no further action has been taken with respect to Doyle in the lower courts.

I might add there too, this question has come up that I say no distinction between Doyle as an individual and the Union as an entity with respect to the protection from such suits because the employees of Section 7 have the right to engage in these activities.

Therefore there should be no distinction between the suit against the employee or the suit against the Union.

Much is made in the brief of petitioner that there is a compelling state interest.

Winston L. Livingston:

There’s such a compelling state interest and the respondent’s conduct that the State should be free to interfere with the federal policy.

Again, the conduct of respondents, if true, was all concerned with an organizing guide.

I think that we should bear in mind that we are here today deciding this case on the basis of the facts in this case, not fact as suggested in the brief of the Solicitor General or the facts as suggested in briefs filed by other amicus curiae in this case.

This is the run of the Mill case that comes along in a libel and slander situation in a labor dispute.

And I think it’s helpful to believe at a point a little bit.

Petitioner was a resident and a citizen of Ohio.

He wasn’t even a citizen of Michigan.

His only relationship to Michigan, it was one of several Northwestern states that he — in which he exercised supervisory control.

It’s part of his duty to prevent and to resist the organizational efforts of his employee.

Part of his job, he is the manager.

He was an employee of Pinkerton and Doyle was an employee of Pinkerton.

And it was Doyle who wrote the letter to fellow employees.

It is rather crude.

It doesn’t even appear on union stationary.

Very crude but it is not such as to shot conscience.

I have seen and heard many worse statements that were contained in this leaflet.

It does not even impute the commission of any specific crime other than the submission of false information to the National Labor Relations Board.

There is no hint of violence or threat to the peace.

What overwriting state interest is involved then to justify Michigan taking this action away from the National Labor Relations Board?

Petitioner’s only answer is that the individual has an interest to protect his reputation.

And the government’s answer is that the protection of a citizen against damage to its reputation is the traditional concern and responsibility of the States.

Now the individual of course has an interest in this reputation.

But just what interest does the State have?

What compelling interest does a State have?

The only conclusion that can be drawn is that the state’s interest is the individual’s interest.

They’re the same because there is no overwriting possibility of violence.

Now of course, it has been suggested in one of the briefs or two that defamatory statements may tend to provoke a breach of the peace but there are no proofs to support this.

At the point, defamation reaches the violent stage.

For example, defamatory words uttered on a picket line against non-obstructive has been held to constitute such eminent danger to the peace as to justify state interference.

The Youngdahl versus Rainfair, I think this was also involved in the Meadowmoor Dairies case, the earlier case.

Winston L. Livingston:

And injunctions have been sustained against being calling as well as others.

So if defamation reaches the point that it constitutes a danger to the domestic peace, the States may act under the present Garmon rule.

I believe the dissenting opinion in the Myers case in Pennsylvania, sums up respondent’s position better than I could rephrase it.

In view of the lack of authority for the proposition that the State’s interest in defamation is as great as the State’s interest in physical violence.

I prefer to follow the well reasoned federal and state authorities to the effect that State based actions for defamation arising out of the labor dispute are precluded because regulation of the conduct in question is subject to the exclusive primary jurisdiction of the National Labor Relations Board over unfair labor practice proceedings.

In summary, on this point, petitioner and the government then equate the individual’s interest in protecting his reputation with the State’s interest and maintaining domestic peace.

They are not the same.

Let us consider for a moment the potential areas of conflict.

In this case, if we were to allow this defamation action to be maintained.

I think of the outset, we should note, that there is not one single irrelevant statement made in this leaflet.

There’s no allegation of any sexual misconduct on the part of Mr. Linn or any other grave type of defamation.

Everything pertains to the employment relationship.

When Mr. Linn first started this suit, his peace suit for $500,000 damages, now no special damages were alleged, didn’t allege, he lost his job or that he was — that he suffered in the other pecuniary loss.

Then because the plaintiff in the proceedings below had not made the necessary allegations respecting citizenship upon amendment to correct this defect by leave of court, the damages were suddenly increased to a million dollars.

Again, no reason given why Mr. Linn’s damages should suddenly jump from $500,000 to one million dollars.

Hugo L. Black:

Would that be maintained?

He might have decided — he’s underestimated them.

Winston L. Livingston:

Well, I believe that it shows a different motive, Mr. Justice Black.

And that is the background for my argument here.

NLRB, might find as in fact it did in this case and I’m talking about the administrative determination that was made by the investigative machinery.

And I think before we knot the effect of this determination, we should bear in mind that this is the same type, this is the same machinery that Congress provided should be set up for determining the processing of unfair labor practice charges and complaints.

So that NLRB found that the Union was not responsible for the publication of this — these leaflets or the distribution of it.

On the other hand, a jury might find that the Union was responsible.

The effect, of course, in this instance, would be to undermine the prestige and the authority of the National —

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

As I read —

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

There had been no hearing — no sir, the —

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

It is not the usual type of letter —

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

Yes but — but to refer — Your Honor, further down, there is a specific finding such employee was not an officer or member of the charge union is there —

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

That he was acting as an agent of such union.

William J. Brennan, Jr.:

That’s not the Board’s finding of the system.

Winston L. Livingston:

No sir, I —

William J. Brennan, Jr.:

But the Board, they — results of the investigation.

Winston L. Livingston:

Right, I thought that I had preface my remarks with the statement that it should not — it does not have the status of a Board determination.

It is merely the result of the Board’s investigation but nevertheless, it is the type of investigation which Congress created for determining the merits of these matters.

And of course the general council has final say with respect to the processing of unfair labor practice complaints.

Abe Fortas:

Counsel, a few moments ago if you forgive me for going back to it, you made a point of the fact that the libel and the allegedly libel has some material contained no statement which was outside of or irrelevant to the employment relationship.

Winston L. Livingston:

That is correct, sir.

Abe Fortas:

What significance do you attach to that?

Winston L. Livingston:

We believe that if there are statements made during an organizing drive which are irrelevant to the dispute then libel actions could be maintained.

Abe Fortas:

Has this Court so held?

Winston L. Livingston:

Not that I am aware of, no sir.

Abe Fortas:

You don’t know of any — is there any —

Winston L. Livingston:

No sir, we suggest that the government or that the Garmon has have arguably subject is irrelevance test and therefore would permit libel and slander actions in certain gross situations such as I refer to in the brief of the Solicitor General.

Abe Fortas:

And that the relevance if I correctly understand you, you’re saying that the relevance relates not merely to the dispute or the context of the State but to the precise nature and character of the statements made in the allegedly libelous material.

Winston L. Livingston:

That is correct, sir.

That is correct.

Hugo L. Black:

And as I understand you, if this pamphlet it said and in addition to this, Mr. so and so, robbed the bank 20 years ago.

Do you feel that that would be libelous and — and could be — would be actionable even though it occurred in the course of a —

Winston L. Livingston:

Yes sir, I believe under Garmon that such an action could be or would be subject to the libel action.

And other allegations of the type which there are no relationship to the purpose of the —

Hugo L. Black:

Who’ve been deciding that?

Winston L. Livingston:

Pardon?

Hugo L. Black:

Who has been deciding that you’re going to let that be tried out in the state court?

Winston L. Livingston:

In — yes sir, I think that it would be —

Hugo L. Black:

In other words, all the man has to do is to be able to forecast precisely what is serious then he can file a suit, that’s the only protection you’re asking?

Hugo L. Black:

If it’s forecasted correctly, what is serious enough, then he can go ahead and try a suit, it’s not arguably to be heard by the Labor Relations Board, you go ahead and try this suit and get some damage.

Of course, he hit it right on whether how serious it was.

Winston L. Livingston:

Well I don’t go on the basis of seriousness, sir.

My argument is directed not to the seriousness but to the relevance —

Hugo L. Black:

Well, I thought you’d —

Winston L. Livingston:

Regardless —

Hugo L. Black:

Use word gross.

Winston L. Livingston:

Well —

Hugo L. Black:

You used the word that kind of a gross charge, most might have heard in those kind of thing as I had — you could either excuse for them for — it sounded pretty gross to me charges —

Winston L. Livingston:

I would — I misused and I beg your pardon that the term gross, I was referring to some irrelevant type of accusation made during an organizing campaign.

Sexual misconduct that has no bearing, the robbing of a bank, a draft dodger during World War I which would have nothing —

Hugo L. Black:

Suppose the charge made that you will not have anything to do with it.

You mean the president of it is that there agent has been convicted of robbery at several times you can’t trust the union, it has a man like that.

Would you say that has no relevance?

Winston L. Livingston:

Well I would say that in that case that there would be — that it would be relevant to the right of the Union and the obligation of the Union and the ability of the Union to represent the employees.

Hugo L. Black:

Oh did he said about the employer?

Winston L. Livingston:

In that case, I don’t think there would be — there would be the relevance because the employer is not charged with a trust or a responsibility to represent employees.

It’s on the other side of the defense.

So I would draw a distinction between those two.

Hugo L. Black:

As to the relevance of the same statement.

Winston L. Livingston:

Yes, sir.

Hugo L. Black:

Or as I said, you can’t believe this man, his employer, his superintendent but you can’t believe him.

He’s been convicted a half a dozen times a very serious crime, would that be relevant?

Therefore you can’t believe what he’s telling you about this.

I’m just pointing this out because I — frankly, for myself, I can’t in fact get completely your idea that you’re going to decide whether or not it’s relevant.

It might be hard to tell what’s relevant to figure this kind.

Winston L. Livingston:

Well that is — that is very true and I think is the —

Hugo L. Black:

And I think Garmon laws that if the thing is arguably but the Board and it seemed to me like that the very argument you’re making which you seem to break as far as the government’s argument that if it’s not serious, if you get – somebody get to decide whether it’s serious or not, it seems to me like that very argument, both of your points rather than the effect that Garmon should apply because it would be arguably for the Board to determine.

Winston L. Livingston:

Well, I beg to disagree.

Our position is that Garmon should be applied all the way.

Winston L. Livingston:

We merely refer to the two very irrelevant examples stated in the brief for the government as afforded some possible relief in the state courts because it is not relevant to the —

Hugo L. Black:

Well that’s going to be determining line, who should determine that line the state of the labor board?

Winston L. Livingston:

The National Labor —

Hugo L. Black:

I mean with the Labor Board and we’re to adopt the rule like that.

Well, I wouldn’t have the proper rule to be the same or you can finish this damage suit, you got to go to the Labor Board and get this question of which it has primary jurisdiction decided.

Winston L. Livingston:

I think this Court has made it very clear that in these cases, it is arguably or the arguably determination must be made by the National Labor Relations Board initially and should be made initially.

And that’s what state courts are doing now.

Hugo L. Black:

Well, any charges that they can make for the reference of defamation and suppose its language that the Labor Board shouldn’t pass on it before submitted to a court in a jury in the state court to determine whether it falls on that line.

Winston L. Livingston:

I believe there would be some instances in which — in which a resort could be — head directly to the Court.

Hugo L. Black:

Wanting of it.

Winston L. Livingston:

I think the very clear instance would be a charge of sexual misconduct.

Hugo L. Black:

That’s some conduct of question a lot of people consider worst than that.

Winston L. Livingston:

Well I realized that but I — but I don’t see that it would have any relevance to the labor dispute except of course it could in an area where you have — you’re organizing a group of office employees and there is a charge of misconduct between certain people and an employer.

There, it might be relevant.

And in all such instances, the initial determination should be made by the National Labor Relations Board.

Hugo L. Black:

Nobody said anything about what’s going to happen with the reference to the suit.

You argued it on the theory that somehow the suit can go on — can be tried on the state court even though nobody yet know, if whether it’s of the nature that the Board has jurisdiction of.

Nobody has mentioned the fact to what you do to get that primary fact determined.

Winston L. Livingston:

If I had my way, I would require that in all preemption cases, the initial, the party should first be required to go to the National Labor Relations Board in order to see or to obtain some sort of the determination as to whether they are going to act in the area.

But —

William J. Brennan, Jr.:

But we have to said that —

Winston L. Livingston:

No sir.

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

That is correct, — but respect to Garmon in subsequent cases, this Court has clearly state that the initial determination as to whether an activity is arguably subject to Section 7 or 8 is to be made by the National Labor Relations Board.

William J. Brennan, Jr.:

If it’s arguably decided on jurisdiction, that means exclusively that more jurisdiction, the state can’t move anywhere in regard, (Inaudible)

Winston L. Livingston:

That is correct, but somewhere along the line an initial determination must be made and —

William J. Brennan, Jr.:

(Inaudible) It isn’t it not a matter of initial determination, it’s a matter of — the State has now — and jurisdiction and whether anything that happens to the Board, nothing or whatever may happen and if it’s arguably within the Board, (Inaudible)

Winston L. Livingston:

That is correct.

I —

William J. Brennan, Jr.:

But I don’t see any — I don’t see places that directly give initial (Inaudible)

Winston L. Livingston:

Well, if anyone thinks that the activity is not subject to the National Labor Relations Board, they should be required to first go there and obtain some sort of a determination prior to resort to Court.

There should be a condition preceding to starting a court action.

As my —

Hugo L. Black:

To Justice Brennan’s question pointed out the reason I was asking you what that was.

Your position and that of the government seems to me that what we should decide is, that well there’s some that the Board had and some it doesn’t have.

Any serious and whether there’s not –- somebody got to decide that but you go ahead and try to the state court, I understood the Garmon doctrine and all the other cases along the other line, but to the effect if you didn’t leave things like that to be tried in the state court that it would arguably before the Board is there and that finished the case, decided it permanently, the State couldn’t proceed.

Winston L. Livingston:

I think —

Hugo L. Black:

Well, I thought they decided.

Winston L. Livingston:

Yes.

It has been decided but my argument was directed to those instances where in the gray area, I still say that there are some that are so clearly irrelevant to a campaign that no determination would be clearly the Board will have jurisdiction.

Abe Fortas:

Counsel, I wonder where all that leaves you on the facts of this case.

Now as I read your record, I maybe wrong about this.

The official of the NLRB be passed on this was the acting regional director.

Winston L. Livingston:

That is correct, sir.

Abe Fortas:

Now let me ask you first.

Is it your position that that is adequate in the event that some pre-clearance or whatever one might call it with the NLRB is required, is the action in your opinion of the acting regional director enough.

Winston L. Livingston:

Yes, sir.

I would state so and qualify.

Abe Fortas:

Now my second question is this.

In this particular case, as I read the record, the acting regional director found that the employee who prepared and circulated the material was not an officer of the Union and wasn’t acting as an agent of the Union and that the Union was not involved in this in any way.

Now does that mean that the state court is free to go ahead.

In short, as I take it here that in effect the NLRB decided that this was not within its jurisdiction?

Winston L. Livingston:

I think quite the contrary the Board asserted jurisdiction by making an investigation and as a result of the investigation, the record will show, they check the membership cards of the local, took the investigative machinery and reached a conclusion, there wasn’t any evidence against the Union.

I would consider that —

Abe Fortas:

No but they held that –- they found as I read it that the Union was not involved in the libel.

Winston L. Livingston:

That is correct, sir.

Abe Fortas:

Now if the Union wasn’t involved in the libel, is the amount still under the NLRB and let me put in as precisely as I can.

In view of the fact that the NLRB held that was a short — that the Union was not involved in this libel.

Does it still follow that the NLRB exercise jurisdiction so that the state court or the federal court was precluded from proceeding with the trial of the case.

Winston L. Livingston:

Yes.

Abe Fortas:

Let us say an investigation doesn’t settle the matter, does it, after the investigation.

If the NLRB investigates the claim and then comes out with the conclusion that this was not part of the labor dispute in the sense that the Union was not involved in it nor was anybody involved in acting on behalf of the Union.

Winston L. Livingston:

My position is that this was an effective type of determination (Voice Overlap)

Abe Fortas:

I’m sorry to take your time but let me ask you this specifically.

I think you said Mr. Doyle resigned from the Union a year before all of these happened.

Winston L. Livingston:

About a year, yes sir.

Abe Fortas:

Now I suppose that after Mr. Doyle resigned from the Union, he had prepared and circulated this libelous material.

And let us suppose that he was not joined, just to make it easy, let’s suppose that he was — yes, he remained as a defendant in the state case.

Now the NLRB conducts an investigation on the basis of a complaint of an unfair labor practice.

And it then finds and concludes that the Union had nothing whatever to do with this.

But that Mr. Doyle, an individual outside of the Union and on his own, circulated — prepared and circulated the allegedly libelous material.

Is it your position that the District Court would still be precluded from going ahead with this action against the Union and against Mr. Doyle?

Winston L. Livingston:

Yes sir.

That is our position.

The other areas of conflict, of course, are fairly obvious.

One area mentioned by the Solicitor General is for the employer discharge the employees.

Suppose Mr. Doyle was discharged by Mr. Linn and the Board would investigate, issue a complaint and order reinstatement with back wages.

If the libel suit were permitted to continue the jury or our judge might award Mr. Linn damages that would far exceed the amount of back wages or the lifetime earnings even of Mr. Doyle.

Potter Stewart:

I suppose your suggestion is that that would be outrageous but I don’t think — I don’t see why — what if Mr. Doyle negligently ran over the employer and that cut both his legs off, he’d be subject to pay for the heavy damages.

And he also might at the same time be reinstated with back pay because of some labor practice against him.

The two are quite unrelated.

Winston L. Livingston:

My point is —

Abe Fortas:

There were two differences that had standard.

Winston L. Livingston:

My point is this, Mr. Justice.

The Board is to effectuate the National Policy.

The Board acts in the public interest as a matter of public policy.

So it orders the employer to take back an employee who has been discharged because of his union activity.

A huge award against Mr. Doyle would mean that that policy could not be effectuated because Mr. Doyle would obviously quit his employment and go elsewhere or rather than to have his legs taken to satisfy a judgment with this employer.

This is where I see that the conflict, it prevents the Board from effectuating the National Policy.

Another area of conflict is — when NLRB holds an election and the Union should win in this case.

Winston L. Livingston:

And the employers move to set him aside on the basis of the leaflet.

And NLRB finds this as merely permissible activity which indeed I think it would.

And then a jury awards you to damages against the Union which far exceeds the facets.

In this instance, the policies of the Act, that employees are to have complete freedom of choice in selecting their bargaining agent might be frustrated because the Union might abandon its efforts to represent the employees and go out of existence in order to satisfy in a judgment.

Huge or libel action seeking huge damages in effectively stipple the free exchange of use.

I like the language used in the New York Times case, libel actions maybe used as a tool by which expression is repressed, if you think that applies with the libel actions.

After Garmon, the use of injunctions and labor disputes especially in the area of peaceful picketing, have been almost completely eliminated.

Then all of a sudden, beginning about 1960, right after Garmon was decided, there has been a space a large number of these libel actions in the lower courts, most of them involving huge sums of money.

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

I do not know, sir.

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

Yes sir, there are — there are two or three listed in the appendix to the Solicitor General that have gone — that have gone to judgment.

William J. Brennan, Jr.:

(Inaudible)

Winston L. Livingston:

As I recall, they were quite out of proportion and –-

William J. Brennan, Jr.:

You had any experience with him before this case, you personally?

Winston L. Livingston:

Me personally?

William J. Brennan, Jr.:

Yes.

Winston L. Livingston:

Not that I can recall right off hand.

But of course, in the Detroit Michigan area, rather sophisticated area in terms of labor relations —

William J. Brennan, Jr.:

Well I’m just wondering how wrong I am.

These things start out of the heat of these campaigns but once the Union wins and they sit down to bargain collectively, then the dismissed is the — is around critical spies.

Winston L. Livingston:

But it’s like any other — that’s right.

That is very true.

It’s like any other lawsuit that started in the context of a labor dispute.

If the Union wins the strike, the lawsuits disappear.

If the Union looses, the lawsuit is pushed in those instances or else treated for something else.

My main point here is that libel actions is just — are being used just as another tool of management and it’s’ arsenal to fight unions.

And when injunction actions, were stopped as a result of the Garmon, then the libel actions came into play.

And the purpose of it is to list public support.

John M. Harlan II:

Michigan is the truth, the defense.

Winston L. Livingston:

Yes sir.

John M. Harlan II:

So just to stop all people from lying, telling defamatory lies.

Winston L. Livingston:

Yes, Michigan also requires that you publish or require the alleged defamer to publish a retraction before you may bring the suit but it also allows punitive damages.

Thank you very much.

Earl Warren:

Mr. Welday.

Donald F. Welday:

May it please the Court.

I have a few moments remaining.

I would like to correct an earlier impression made in response of the question by Mr. Justice Douglas.

I doubled check my own record, sir, during the recess period.

The circular was not filed with the complaint.

It was held as ultimately and potentially exhibiting the matter.

My own mistake was it was filed with the NLRB by the employer.

It was not filed with the complaint and he’s not in any part of the record of this suit.

I would like to stress that what this suit is involved and that — it is the suit of an individual not an employer except as he is defined and categorized an employer.

Byron R. White:

Well now the Solicitor General referred us to that statement in an affidavit that this was in the context of an organizational campaign.

You, I think told me earlier that there’s nothing in the record to show that.

Donald F. Welday:

A semantic problem which I have, there was nothing insofar as either this petitioner was concerned nor his employer.

The first time that it appears is the self serving statement of the respondent in this —

Byron R. White:

Well I know but it’s one of the facts this whole case has been tried in an affidavit.

Donald F. Welday:

What trial it has been, yes.

That’s it —

Byron R. White:

Well but there hasn’t — the whole — I don’t mean tried.

But in the context that’s here do not we take it in the context of a labor organization campaign.

Donald F. Welday:

Yes sir.

Byron R. White:

Alright.

Donald F. Welday:

I didn’t mean to suggest that there wasn’t.

I did mean to suggest that there wasn’t — there was nothing to suggest a dispute as we understand that term.

I don’t know.

It’s been assumed here that there would be a — not on drag on fight.

And I don’t know that we can make that assumption.

Donald F. Welday:

I would like also to say that all the tests which have been suggested by the Solicitor General, by the respondent, and by Garmon, insofar as the Solicitor General’s test of — is concerned, we think that the questions posed by the Court demonstrate that the severity part of it or the grave part of it or the nasty part of it, is actually unworkable.

Frankly, on behalf of the petitioner, we could accept a test of malice or deliberate false suit insofar as allowing the state courts to retain jurisdiction is concerned.

If this is a retreat from our position that all actions for libel under these circumstances should be maintained, then we retreat to that point when the allegation is — that there is a deliberate or a malicious, or knowingly false statement made, we think that that perhaps maybe a workable test.

The relevancy test suggested or the arguably subject test —

Byron R. White:

Well how far are you on the Solicitor General part?

Donald F. Welday:

Well the Solicitor General adds to it.

His is not a malicious or grave — as I understood his test, it was malicious and grave.

And I don’t think that you can use that gravity test any place.

I think it’s just too hard to work.

Byron R. White:

How about the suggestion Solicitor General made that within an elimination of punitive damages.

Donald F. Welday:

I, personally would have no objection because and particularly in the context of this case where some form to provide the truth is what the petitioner seeks here.

And this is what’s been denied in.

He has no place to go to establish that he is not a crook, not a liar, and not a theft, not a robber.

And this is what he wants.

And this is what’s been deprived because his employer did something on one hand and the Union made the statement on the other hand.

He’s left out in the middle of the ocean with no ores.

And that seems to me to be contrary to what we are — what this country is building around.

These people are entitled to maintain their reputations arguably subject the test that’s suggested in the Garmon is fine if you can compel the labor board to hear these matters in the first place but you can’t.

They can refuse to entertain the complaint or refuse to hear the matter.

So if we let the labor board say whether or not it is arguably subject, I would think we’d have to say that the Labor Board must make that determination but it doesn’t.

The Garmon test actually provides three exceptions, one for violence, one for activities which are peripheral concerns of the Labor Management Act, and an exception in the case of compelling state interests.

The deliberate or malicious libel is much like violence in that it is an intentional means of destruction or something else now whether it happens to be a car or a building or an arm or a client relationship, or a reputation it still is an intentional destruction.

We think that it corresponds to violence.

Abe Fortas:

Counsel, is it your position by taking the allegedly libelous material set forth in the record before us, pages four and six, I think it is, that a — this complaint would be the Solicitor General’s proposed test?

Donald F. Welday:

I think it would.

I think when you call a man a thief and you call him a robber, it’s grave.

Abe Fortas:

Where is that?

Donald F. Welday:

The men were robbed for pay increases.

Abe Fortas:

Well in the context — alright, what about that — you said the thief and robbery and I supposed that will support of it.

Donald F. Welday:

Call it whether what you will, he’s a thief or a robber.

Abe Fortas:

So you think this would make the Solicitor General’s test.

Donald F. Welday:

I think it would.

Thank you gentlemen.