Appeals by plaintiffs and defendants from order granting
partial summary judgment in favor of defendants entered 4 September
2001 by Judge Melzer A. Morgan, Jr., Superior Court, Moore County.
Heard in the Court of Appeals 10 September 2002, dismissed as
interlocutory, Priest v. Sobeck, 153 N.C. App. 662, 571 S.E.2d 75
(2002), reversed and remanded, ___ N.C. ___, 579 S.E.2d 250 (2003).
Panel reconvened to consider appeal on merits by order dated 10
This appeal returns to us for a determination on the merits
following our Supreme Court's reversal of our earlier decision
holding that the appeal was interlocutory. Priest v. Sobeck,
N.C. App. 662, 571 S.E.2d 75 (2002), reversed and remanded
____, 579 S.E.2d 250 (2003). We incorporate by reference to our
earlier decision, the facts relevant to this appeal. See Priest v.
153 N.C. App. 662, 571 S.E.2d 75 (2002).
Briefly, plaintiffs, members of Make-up Artists and
Hairstylist Local 798 of the International Alliance Theatrical
Stage Employees and Motion Picture Operators of the United States
and Canada (Local 798), allege defendants, Local 798 and its
representative Thomas Sobeck, committed libel
in a newsletter it
published and mailed to the Local 798 membership. Defendants moved
for summary judgment which the trial court granted in part, and
denied in part.
We hold that the trial court should have granted
summary judgment in favor of defendants on all of plaintiffs'
In this case, both parties appeal from the trial court's order
granting partial summary judgment which stated:
... There are no genuine issues of material
fact with respect to any of the claims alleged
except as to whether the defendant Sobeck with
malice published in the August newsletter and
subsequent newsletters that plaintiffs stood
by when Henrita Jones, not a member of Local
798, was hired in mid to late June, 1999 when
such hiring was actually initially approved by
union representative Vincent Callaghan and
when defendant Sobeck himself later allegedly
approved, explicitly or implicitly, the hiring
of Ms. Jones. ... Except with respect to the
hiring of Ms. Jones and defendant Sobeck's
assertion that plaintiffs stood by while Ms.Jones was hired, when he allegedly knew that
he had himself approved the hire, no malice
has been shown on the part of the defendants
as to any other factual scenario.
The trial court then ordered:
(1) partial summary judgment is granted as to
any and all claims except any claim based upon
the limited assertion that, after union
representative Vincent Callaghan initially
approved the hiring of Henrita Jones,
defendant Sobeck, having himself approved,
explicitly or implicitly, the hiring of
Henrita Jones in mid to late June, 1999, then
maliciously published that it was plaintiffs
who stood by when Ms. Jones was hired when he
knew he had approved the hire himself....
Preliminarily, we note that because the trial court held plaintiffs
to an actual malice standard, it implicitly determined a qualified
privilege extended to defendants' statements. See Bouligny, Inc.
v. United Steelworkers of America, AFL-CIO
, 270 N.C. 160, 171, 154
S.E.2d 344, 354 (1967).
On appeal, plaintiffs argue defendants were not entitled to a
qualified privilege and therefore the trial court erroneously
required them to prove their libel claim under the actual malice
standard. On the other hand, defendants argue that the trial court
correctly found that they were entitled to a qualified privilege;
however, defendants appeal from the trial court's failure to grant
summary judgment in their favor on plaintiffs' libel claims under
the actual malice standard. See New York Times v. Sullivan
U.S. 254, 279-80 (1964). Thus, the issues on appeal are: (1)
whether the trial court properly found that defendants were
entitled to a qualified privilege, and (2) If so, whether the trial
court properly denied summary judgment on plaintiffs' claims under
the actual malice standard. After careful review, we conclude thetrial court properly extended a qualified privilege to defendants'
statements; however, we find the trial court should have granted
summary judgment in favor of defendants on all of plaintiff's
, our Supreme Court interpreted the United States
Supreme Court's holding in Linn v. Plant Guard Workers
, 383 U.S.
53, 15 L.Ed.2d 582 (1966) to mean that,
the defense of qualified privilege extends to
statements spoken or published in good faith
by a labor union in the course of a campaign
to solicit members or to establish itself as
the authorized representative of the employees
in a business enterprise in their collective
bargaining with their employer, provided there
is a reasonable relation between such
objective and the statement made.
, 270 N.C. at 172, 154 S.E.2d at 355. Defendants in this
apparently recognize that this language in Bouligny
entitle them to a qualified privilege because their newsletter
statements were neither a part of a solicitation campaign nor a
part of a negotiation between the union representative and the
employer. Instead, defendants allege that the statements in this
case fit within the extended definition of a qualified privilege
under Old Dominion Branch No. 496, National Association of Letter
Carriers, AFL-CIO, et al. v. Austin et al.
, 418 U.S. 264, 41 L.Ed.
745 (1974). We agree.
In Letter Carriers
, the United States Supreme Court stated
that while its earlier decision in Linn
found state libel law was
not completely preempted by the Nation Labor Relations Act
partial preemption must turn on whether the
defamatory publication is made in a context where the policies ofthe federal labor laws leading to protection for freedom of speech
are significantly implicated. Letter Carriers
, 418 U.S. at 279,
41 L. Ed. 759. Thus,
One of the primary reasons for the [NLRA's]
protection of union speech is to insure that
union organizers are free to try peacefully to
persuade other employees to join the union
without inhibition or restraint. Accordingly,
we think that any publication made during the
course of union organizing efforts, which is
arguably relevant to that organizational
activity, is entitled to the protection of
. We see no reason to limit this
protection to statements made during
representation election campaigns. . . .
Unions have a legitimate and substantial
interest in continuing organizational efforts
after recognition. Whether the goal is merely
to strengthen or preserve the union's
majority, or is to achieve 100% employee
membership . . . these organizing efforts are
equally entitled to the protection of § 7 and
In this case
, the union published a newsletter to its members
urging the members to hire their brothers and sisters over non-
union members and noting that non-union members were hired on
Shake Rattle and Roll. The newsletter alleged that plaintiffs
stood by as this happened. It further urged the membership to
file complaints against these not-thinking members [sic] and
write their business agent to advise him how the membership wants
him to deal with this problem.
We hold that the language in the subject newsletter falls
under Letter Carriers'
expanded definition of the defense of
qualified privilege. It seeks to have 100% membership by keeping
non-union members from working on union films. It also seeks to
strengthen the collective bargaining power of the union byencouraging the membership to only work with their union brothers
and sisters. A union's right to persuade others to join must not
be stifled by the threat of liability for the over-enthusiastic use
of rhetoric or the innocent mistake of fact. Id.
at 277, 41 L. Ed.
758. (Citations omitted.) Accordingly, we uphold the trial court's
determination that defendants' statements were entitled to a
Having determined the defendants were entitled to a qualified
privilege, we now address defendants' contention that the
plaintiffs' forecast of evidence was insufficient to create a
genuine issue of material fact as to whether defendants acted with
Summary judgment is appropriate only if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to
judgment as a matter of law. Martin Architectural Products v.
, 155 N.C. App. 176, 180, 574 S.E.2d 189, 191
(2002). To justify summary judgment, the movant
must show one of
the following three grounds:
(1) an essential element of plaintiff's claim
is nonexistent. (2) plaintiff cannot produce
evidence to support an essential element of
his claim, or. (3) plaintiff cannot surmount
an affirmative defense which would bar the
Clark v. Brown
, 99 N.C. App. 255, 260, 393 S.E.2d 134, 136-37
(1990). In this case, since defendants' statements were protected by
a qualified privilege, the subject publication is not actionable
for libel in the absence of actual malice. Raymond U. v. Duke
, 91 N.C. App. 171, 181, 371 S.E.2d 701, 708 (1988)
plaintiffs' evidence must show a genuine issue of material fact as
to whether defendants' allegedly defamatory statements were made
with knowledge that the statements were false or with a reckless
disregard for the truth in order to preclude summary judgment in
favor of defendants. Furthermore, judgment for the plaintiffs in
such an action may be rendered only if the plaintiffs allege and
prove not only the actual malice sufficient to overcome the
qualified privilege allowed the union by the law of this State but
also some actual damage resulting from the libelous publication.
, 270 N.C. at 176, 154 S.E.2d at 357-58.
In this case, even assuming that plaintiffs can show that the
statements were made with actual malice, the record shows that
plaintiffs failed to forecast sufficient evidence of actual
damages. Indeed, plaintiffs admit they worked after the
newsletter's publication, turned down work, and cannot specify a
particular production for which they were not hired due to the
allegedly libelous statements. Accordingly, we summarily hold that
defendants were entitled to summary judgment on all of plaintiffs'
In sum, we reverse the court's denial of summary judgment on
this claim and remand for entry of summary judgment in favor of
Affirmed in part, reversed and remanded in part. Judges MARTIN and McGEE concur.
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