Defamation Suit Survives Anti-SLAPP Motion

One familiar tactic used by labor unions in contract negotiations is to claim that management is unfair, etc. Generally, these statements are protected free speech under the First Amendment to the U.S. Constitution.

However, not all statements by a union and its members are so protected, even in the context of a strike or other union action. For example, one can readily see that the union could not falsely accuse the company’s president of a heinous crime without consequence. While vitriol and hyperbole may be employed when it’s clear that the statements are such, one could not falsely accuse someone of child molestation just for revenge or to coerce a settlement.

In 2008, Operating Engineers Local No. 3 began negotiating new collective bargaining agreements with Road Machinery for three of the latter’s California facilities. An impasse was reached and the union went on strike on September 16, 2009.

On that day and others later, some union members followed the general manager home. On November 11, 2009 (Veterans Day, no less; must have had the day off), the union placed flyers on the doors and cars of the GM’s neighbors, stating:

NEIGHBORS, BEWARE OF THIS MAN: [NAME]; Protect your family, safeguard your property; there is no telling what he might do; complain to [apartment complex management] about the sort of person they’ve let in your community.

The flyer contained the GM’s cell phone number and his apartment number, and encouraged the neighbors to complain to the GM directly (i.e., indirect harassment). The flyer did not reveal why complaints should be made or what the neighbors should fear about the GM.

A second flyer falsely accused the GM of certain anti-union and -worker actions, despite the fact that he had nothing to do with the negotiations or decisions made or to be made.

The first flyer was then redistributed the next month (Dec. 09).

The GM filed his defamation/false light invasion of privacy (a type of defamation, actually) suit the next month in Jan. 2010.

On March 8, 2010, the union stopped all strike-related activities and ratified a new contract on March 20, 2010, meaning that the strike had lasted about 6 months.

On April 12, 2010, the trial court denied the union’s anti-SLAPP motion (at p. 6) because the union had failed to meet its threshold burden that its conduct was protected under the anti-SLAPP statute, California Code of Civil Procedure section 425.16. The union appealed.

The California Court of Appeal affirmed the denial of the union’s motion on the ground that the flyers did not concern a public issue or an issue of public interest. They were merely personal attacks on the GM, who was not involved in the collective bargaining. He was not a public figure. The mere fact that the flyers were distributed during a labor dispute did not protect them. In fact, the first flyer apparently did not even reference the union, the employer or the labor dispute – it was merely a personal attack on the GM, with no disclosed facts about how the GM was a threat to his neighbors (which certainly was implied).

The appellate opinion does not reveal whose bright idea the flyers were – if union management or not, the union stewards should have nipped the flyers in the bud. They’d have seen the inadvisability if the tables were turned, one would hope. Unfortunately, some people are incapable of such elementary human (as opposed to legal) analysis. (Yes, we know about NLRB rules and regs.)

So, for lack of such, the GM’s suit against the union and some of its employees proceeds. Most such cases are settled and some may be covered by insurance. Whether we’ll ever learn the eventual outcome of this case remains to be seen. It should be a lesson for all.

If you’re faced with a situation like this, contact a First Amendment attorney to discuss your rights.

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