Jumseating on US Carriers for CX Crew

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The Eleventh Circuit Court of Appeals added its voice to the increasingly sensitive arena of federal labor law and state law libel/defamation. The Eleventh Circuit, in Dunn v. Air Line Pilots Association, (11th Cir., Oct. 25, 1999), outlined the applicable analysis in evaluating allegations that one side used words, not as a legitimate tool, but as an unfair weapon in a labor dispute.

In Dunn, the pilot's union called a sympathy strike against Eastern Airlines in 1989. While most of Eastern's pilots refused to work, a substantial number crossed the picket line and flew during the strike. The pilot's union compiled a "scabs" list, a list of pilots who worked during the sympathy strike, and distributed 50,000 copies of the list after the strike ended. A group of airline pilots who flew during the strike sued the pilot's union alleging, among other causes of action, that the union libeled them when the union listed them as "scabs."

The United State Supreme Court held in Old Dominion Branch No. 496, Nat'l. Ass'n of Letter Carriers v. Austin (1974) that state libel and defamation law is partially preempted by federal labor law when the state libel/defamation claim is asserted in the context of a labor dispute. The rationale for the preemption rule is that labor policy "favors free speech, open communication and robust debate...."

The Dunn court recognized that the U.S. Supreme Court has addressed several questions about how the pre-emption rule in labor-defamation cases has changed the litigation landscape. Most importantly, the Court incorporated the actual malice test into labor libel analysis that was originally used in defamation cases involving public figures and issues of public concern and first adopted in New York Times v. Sullivan (1964). The Court also consistently expanded the type of labor activities included in the pre-emption doctrine. Currently, almost all organized labor or union activities fall within the labor preemption rule when evaluating state libel claims.

To prevail on a libel/defamation claim in a labor dispute, a plaintiff must show that the person or organization such as a union or company acted with actual malice. Actual malice means that one must have made the statement "with knowledge that it was false or with reckless disregard or whether it was false or not." The plaintiff also must make this showing by clear and convincing evidence.

In Dunn, the Court of Appeals held that labeling the pilots who crossed the picket line "scabs" was factually true (i.e., the pilots did cross the picket line to work). In addition, the court in Dunn found no evidence that the defendants subjectively believed that the pilots labeled "scabs" were not really "scabs." In the end, the Dunn court affirmed summary judgment for the union and dismissed the libel claim.

The Dunn case has repercussions for corporations that face ongoing labor issues and strong unions. The Dunn case, in the name of promoting free speech, gives both management and labor great latitude in advancing their causes directly and indirectly in labor negotiations. However, often the issue for corporations and management is how to stop, or at least minimize, the unfair use of strong language and allegations of corporate misconduct that often typify labor activities during strikes or periods of labor conflict. The Dunn case limits the ability of a company to use state libel claims to reign in overly aggressive and vocal labor organizations. The clear message of Dunn is that federal labor preemption in the area of libel law is alive and well in the Eleventh Circuit.