[Cite as Anzevino v. DePasquale, 2012-Ohio-1507.]




                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT



RANDAL ANZEVINO,                                    )
                                                    )
        PLAINTIFF-APPELLANT,                        )      CASE NO.    11 MA 111
                                                    )
        -VS-                                        )
                                                    )      OPINION
RAYMOND DePASQUALE, et al.,                         )
                                                    )
        DEFENDANTS-APPELLEES.                       )



CHARACTER OF PROCEEDINGS:                               Civil Appeal from Common Pleas Court,
                                                        Case No. 08CV3802.



JUDGMENT:                                               Affirmed in part; Reversed and Remanded
                                                        in part.



JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro




                                                                         Dated: March 30, 2012
[Cite as Anzevino v. DePasquale, 2012-Ohio-1507.]




APPEARANCES:


For Plaintiff-Appellant:                            Attorney A. Clifford Thornton, Jr.
                                                    23230 Chagrin Blvd. #605
                                                    Beechwood, Ohio 44122



For Defendants-Appellees:                           Attorney Samuel Amendolara
                                                    1032 Boardman-Canfield Road
                                                    Youngstown, Ohio 44512
                                                    (For Raymond DePasquale)


                                                    Attorney Robert Moore
                                                    114 Neff Drive
                                                    Canfield, Ohio 44406-1345
                                                    (For Teamsters Local 377)


                                                    Attorney Neil Schor
                                                    26 Market Street, Suite 1200
                                                    P.O. Box 6077
                                                    Youngstown, Ohio 44501-6077
                                                    (For Christopher Colello)
[Cite as Anzevino v. DePasquale, 2012-Ohio-1507.]


VUKOVICH, J.



        {¶1}    Plaintiff-appellant Randal Anzevino appeals the decision of the Mahoning
County Common Pleas Court granting summary judgment in favor of defendants-
appellees. The issue is whether the trial court properly dismissed appellant’s claims
on the grounds that they are preempted by the National Labor Relations Act so that
the National Labor Relations Board is the only proper forum for those claims.
        {¶2}    For the following reasons, the judgment of the trial court is affirmed in
part and reversed and remanded in part. Contrary to the trial court’s decision, United
States Supreme Court law allows appellant’s intentional defamation claim to remain in
state court, and appellant’s tortious interference claim can also remain in state court to
the extent that it is based upon intentional defamation. The trial court’s dismissal of
appellant’s negligent defamation claim is affirmed.
                                  STATEMENT OF THE CASE
        {¶3}    Appellant is a truck driver in the Teamsters Union. In September of
2008, he filed a civil complaint in the Mahoning County Common Pleas Court against
Raymond DePasqaule, Christopher Colello, the International Brotherhood of
Teamsters, and the Teamsters Local 377. The complaint stated as background that in
May of 2007, appellant filed charges with the Local against DePasqaule, who was the
Local’s business agent, alleging that he failed to enforce a collective bargaining
agreement on a job and committed fraud in issuing OSHA cards for hazardous
material training.      The charges were not processed by the Local due to “lack of
specificity.”
        {¶4}    In July, he restated his charges against the business agent. In August of
2007, appellant brought charges against Colello, who was the Local’s president, for
fraud in convincing employers to allow unemployment for failed drug tests, failure to
act on the OSHA card issue, failure to police the jurisdiction, and failure to process a
prior grievance.       The Local forwarded the July and August charges to a higher
authority due to a conflict of interest.
                                                                                                     -2-


         {¶5}   Thereafter, the business agent and the union president copied
appellant’s personnel file. This act was captured by videocameras that they did not
know had been installed in the union hall. The file was mailed to appellant’s new
employer in September of 2007. Appellant was fired the day the employer received
his file in the mail. He then brought more charges with the union.1
         {¶6}   In his civil complaint, appellant set forth six counts: tortious interference
with a business relationship against the business agent and president as individuals;
vicarious liability of the Local for tortious interference; intentional defamation against
the individuals; negligent defamation against the individuals; vicarious liability of the
Local for defamation; and, negligent supervision by the unions.
         {¶7}   The case was removed to federal court on the grounds that the claims
were preempted by the Labor Management Relations Act (LMRA). Thereafter, the
federal court found that the sixth count (negligent supervision by the unions) was
barred by the statute of limitations in the LMRA. As to the other counts (which are the
ones at issue in the case before us), the federal court ruled that they were not
preempted by the LMRA as there was no need to interpret the collective bargaining
agreement or to invoke a right provided by the agreement in order to adjudicate these
claims. Thus, on June 18, 2009, these counts were remanded back to the state trial
court.
         {¶8}   In May of 2010, the defendants moved for summary judgment on various
grounds. In pertinent part, they argued that the National Labor Relations Act (NLRA)
preempts the remaining claims as they deal with conduct prohibited or protected by
that act and thus are subject to the primary jurisdiction of the National Labor Relations
Board (NLRB). Specifically, they argued that the alleged conduct was covered by the
act because it could be considered a violation of the union’s duty of fair representation,
retaliation for engaging in a protected activity, or mere disclosure of information
necessary to an employer. The magistrate denied summary judgment.



         1
         In February of 2008, the Teamsters General Executive Board found merit to the charge against
the business agent and president for copying appellant’s file and sending it to his employer, stating that
this was improper behavior. They were suspended from the union for this and other charges unrelated
to appellant.
                                                                                   -3-


       {¶9}     Thereafter, the Local asked the magistrate to reconsider its denial of
summary judgment. The Local explained that the LMRA preemption issue decided by
the federal court dealt only with whether removal to federal court was appropriate and
is distinct from the NLRA preemption issue now raised which deals with NLRB
jurisdiction.    The Local reiterated its arguments concerning why the conduct
complained of falls under the NLRA and thus under the sole jurisdiction of the NLRB.
Appellant responded that such preemption only applies in the context of a labor
dispute or where there is an unfair labor practice.
       {¶10} On September 21, 2010, the magistrate granted summary judgment for
the defendants. Appellant filed timely objections. On June 15, 2011, the trial court
adopted the magistrate’s decision and granted summary judgment to the defendants,
holding that the claims are preempted by the NLRA since the conduct complained of
was arguably prohibited by the act and thus the NLRB is the proper forum before
which the claims must be brought. Appellant filed a timely notice of appeal.
                                GARMON PREEMPTION
       {¶11} The Garmon doctrine is one type of preemption found to be necessary to
implement federal labor policy by precluding state interference with the NLRB's
interpretation and enforcement of the NLRA.           Golden State Transit Corp. v. Los
Angeles, 475 U.S. 608, 613, 106 S.Ct. 1395, 89 L.E.2d 616 (1986); San Diego
Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.E.2d 775 (1959).
Under Garmon preemption, the NLRB has primary jurisdiction over (and thus states
cannot regulate or judicially remedy) activity that is protected or arguably protected
under §7 of the NLRA or arguably constitutes an unfair labor practice and is thus
prohibited under §8 of the NLRA. Garmon, 359 U.S. at 244-245. See also Wisconsin
Dept. of Indus. v. Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.E.2d 223
(1986). So, if a remedy can be sought under the NLRA, a separate remedy cannot
generally be sought in state or federal court; otherwise conflicts would result. See
Garner v. Teamsters, 346 U.S. 485, 498-499, 74 S.Ct. 161, 98 L.E. 228 (1953);
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 748-749, 105 S.Ct. 2380,
85 L.E.2d 728 (1985), fn.26.
                                                                                       -4-


       {¶12} One exception to the Garmon doctrine applies where the activity is
merely a peripheral concern of the NLRA or touches interests so deeply rooted in local
responsibility that courts cannot infer Congress deprived states of the power to act.
J.A. Croson Co. v. J.A. Guy, Inc., 81 Ohio St.3d 346, 355, 691 N.E.2d 655 (1998),
citing Farmer v. United Brotherhood of Carpenters & Joiners of Am., Local 25, 430
U.S. 290, 296-297, 97 S.Ct. 1056, 51 L.E.2d 338 (1977) and Garmon, 359 U.S. at
243-244. Along these lines, Garmon has not been applied to preempt state court
actions for intentional inflection of emotional distress, malicious libel, violence, threats
of violence, and threats to public order, even if the facts (if true) would also violate
Section 8 of the NLRA. Farmer, 430 U.S. at 303; Linn v. Plant Guard Workers, 383
U.S. 53, 86 S.Ct. 657, 15 L.E.2d 582 (1966); Humility of Mary Health Partners v. Sheet
Metal Workers’ Local Union No. 33, 7th Dist. No. 09MA91, 2010-Ohio-868, ¶ 11, citing
Garmon, 359 U.S. at 247.
       {¶13} Still, in order to determine whether the activity is arguably protected or
prohibited by the NLRA, it is the conduct, not the cause of action that is to be
evaluated. Humility of Mary, 7th Dist. No. 09MA91 at ¶ 15-17, citing Amalgamated
Assn. of Street, Elec., Ry. & Motor Coach Emp. of Am. v. Lockridge, 403 U.S. 274,
292, 91 S.Ct. 1909, 29 L.E.2d 473 (1971). This is not an easy task and has been
termed a “knotty problem.” Amalgamated, 403 U.S. at 277.
                                 ASSIGNMENT OF ERROR
       {¶14} Appellant’s sole assignment of error provides:
       {¶15} “THE TRIAL COURT ERRED IN FINDING THAT APPELLEES’
TORTIOUS CONDUCT ARGUABLY OCCURRED WITHIN THE CONTEXT OF A
LABOR DISPUTE AND WAS THUS PREEMPTED BY FEDERAL LAW PURSUANT
TO THE NATIONAL LABOR RELATIONS BOARD.”
       {¶16} Appellant states that the conduct complained of in his complaint is not on
the list of protected activities in Section 7. As for Section 8, appellant argues that the
sending of the file did not involve a labor dispute, which he believes is a required
criteria for an unfair labor practice to exist.
       {¶17} The defendants respond that a pre-existing labor dispute is not required
for there to be a violation of the NLRA, especially if the act complained of is itself
                                                                                  -5-


labor-related. See 29 U.S.C. 158. Notably, a main complaint by appellant concerns
the union’s interference with his existing employment relationship. And, it has been
held that “employment relations” is a concern of the NLRB and that this would include
an employee’s complaint that the union did not refer him to a job. See Plumbers v.
Borden, 373 U.S. 690, 697, 83 S.Ct. 1423, 10 L.E.2d 638 (1963).
       {¶18} The defendants also note that at the time the file was copied and mailed,
appellant was not happy with the handling of a claim he wished to pursue against a
prior employer for his termination, and he had filed charges against them for their
handling of various labor issues. Thus, they urge that appellant was involved in a
labor dispute with the two union officials at the time of their conduct. See 29 U.S.C.
152(9) (defining labor dispute as including any controversy concerning terms, tenure
or conditions of employment, or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or
conditions of employment, regardless of whether the disputants stand in the proximate
relation of employer and employee). In fact, it could be said that the act of union
officials of sending a union file to the union member’s employer in order to get him
fired created a labor dispute itself.
       {¶19} Appellant counters that once conduct rises to a certain level, such as
violence or threats of violence, the existence of a labor dispute is not the point. In
other words, the specific conduct here is actionable without regard to any background
dispute. This is essentially an argument concerning the Garmon exception, which will
be addressed below.
       {¶20} Another argument the defendants set forth is that they arguably violated
a duty of fair representation which was owed to appellant under the NLRA and which
is equivalent to an unfair labor practice. The defendants rely upon Vaca, where the
employee sued the union for breach of fair representation by failing to arbitrate a
grievance after he was discharged from employment. See Vaca v. Sipes, 386 U.S.
171, 87 S.Ct. 903, 17 L.E.2d 842 (1967). The Court acknowledged that the NLRB has
held that the duty of fair representation is implicit in Section 9 of the NLRA and thus
the violation of the duty can be an unfair labor practice under Section 8. Id. at 176-
177. See also Breininger v. Sheet Metal Workers Internatl. Assn. Local Union No. 6,
                                                                                    -6-


493 U.S. 67, 86-87, 110 S.Ct. 424, 107 L.E.2d 388 (1989). The Vaca Court held that a
breach of the statutory duty of fair representation occurs when a union's conduct
toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad
faith. Id. at 190.
       {¶21} However, the Vaca Court allowed the cause of action to proceed in state
court, noting that the duty of fair representation is a judicially-created doctrine. The
Court had cited the various cases that have fallen under the Garmon exception
outlined above. See id. at 180, citing Linn, 383 U.S. 53 (libel) and Internatl. Union,
United Auto. Workers of America v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.E.2d
1030 (1958) (violence).     The Court later concluded that the action could proceed
(under a section of the LMRA) notwithstanding that the Garmon doctrine would
preempt the action as an unfair labor practice under the NLRA. Id. at 183-184. See
also Breininger, 493 U.S. at 76 (that a breach of the duty of fair representation might
also be an unfair labor practice is thus not enough to deprive a court of jurisdiction
over the fair representation claim).
       {¶22} Thus, Vaca does not support the defendants’ position here. Rather, it
tends to support a claim that the NLRA does not preempt all suits based upon fair
representation merely because such can be considered an unfair labor practice by the
NLRB. Regardless, appellant’s claims do not rely on some judicially-created duty of
fair representation. Thus, we continue to address his claims.
       {¶23} The defendants then cite Section 8(b), which prohibits (as an unfair labor
practice) a union or its agent from restraining or coercing employees in the exercise of
their rights under Section 7. 29 U.S.C. 158(b). The portion of Section 7 on which they
rely states that the employee has the right to engage in concerted activity for the
purpose of mutual aid or protection. 29 U.S.C. 157. The defendants conclude that
their act of sending the file to the employer could arguably be considered a retaliatory
act to coerce appellant from exercising his right under Section 7 to criticize them and
to bring union charges against them, citing Teamsters Local Union No. 657, 342 NLRB
637 (2004) (NLRA protects right to bring internal union charges against union officers
and right to criticize their performance). They alternatively propose that their conduct
could arguably be considered a protected activity done to prevent harm to the other
                                                                                                  -7-


union members and the union as a whole. The defendants conclude that the claims
are preempted because their conduct was arguably prohibited by Section 8 and/or it
was arguably protected by Section 7.2
        {¶24} As to the latter argument, intentionally publishing information known to
be false about a union member is not claimed to be protected. As to the former
argument, appellant did not sue the business agent, the president, and vicariously the
union because they may have retaliated against him.                   Why they engaged in the
behavior emphasized above was irrelevant to appellant’s case.                    Even if they can
devise reasons for acting that are prohibited under the act, this does not answer the
question of whether the Garmon exception applies here.
        {¶25} On this issue, there is a case in appellant’s favor regarding the conduct
constituting intentional defamation. In Linn, an assistant manager filed a libel action
against the union stating that a defamatory statement was circulated about him. Linn
v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.E.2d 582 (1966). The United
States Supreme Court noted that under a formalistic application of Garmon, the suit
would have been preempted. Id. at 61-62. Yet, the Court applied the exception to the
Garmon rule for various reasons. Id.
        {¶26} First, the underlying conduct, the intentional circulation of defamatory
material known to be false, was not protected by the NLRA, and there was thus no risk
that permitting the state cause of action to proceed would result in state regulation of
conduct that Congress intended to protect. Id. Second, the Court recognized “an
overriding state interest” in protecting residents from malicious libels that was “deeply
rooted in local feeling and responsibility.” Id. Third, the Court found little risk the state
cause of action would interfere with the effective administration of national labor policy
as the NLRB would be unconcerned with whether the words were defamatory while
the state court would be unconcerned with whether they were coercive or misleading.
Id.



        2
          At one point, the defendants note that appellant filed charges with the NLRB and characterize
this suit as a “second bite of the apple.” However, those charges, attached to the defendants’ summary
judgment motion, are not related to defamation and tortious interference surrounding the act of the
mailing appellant’s union personnel file to his employer.
                                                                                    -8-


      {¶27} Moreover, the Linn Court pointed out that NLRB would lack authority to
provide the defamed individual with damages. Id. at 63. The Court then restricted the
scope of that exception by holding that state damages actions in this context would
escape preemption only if limited to defamatory statements published with knowledge
or reckless disregard of their falsity. Id., using the standards from New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.E.2d 686 (1964).
      {¶28} Although we are to view the conduct rather than the cause of action, the
alleged conduct in our case (intentionally publishing information known to be false
which allegedly causes actual damages due to firing) is equivalent to the conduct in
Linn. Thus, we hold that the Linn rationale applies to the intentional defamation claim
here, and that such claim is not preempted. The negligent defamation claim, however,
would not fall under the Garmon exception pursuant to Linn as it alleges less than
knowledge or reckless disregard of the falsity, and thus, the negligent defamation
claim is preempted.
      {¶29} This leaves us to evaluate the conduct underlying the tortious
interference claim. In one case cited by the parties, an employee claimed that his
union arbitrarily refused to refer him for a job, alleging tortious interference with his
right to contract for employment and breach of a promise implicit in his membership
not to deny him the right to work. Plumbers v. Borden, 373 U.S. 690, 83 S.Ct. 1423,
10 L.E.2d 638 (1963).     The Court stated that concurrent state court action would
significantly impair the functioning of the federal system because if an unfair labor
practice charge had been filed, the NLRB may have concluded that the refusal to refer
the employee was a lawful hiring hall practice. Id. See also Iron Workers v. Perko,
373 U.S. 701, 83 S.Ct. 1429, 10 L.E.2d 646 (1963) (a companion case).
      {¶30} Yet, the Linn rationale, which was released three years after Plumbers,
can be applied to certain aspects of the tortious interference cause of action here. That
is, appellant alleges interference by sending information that was knowingly false,
hearsay, and confidential. The allegations that knowingly false information interfered
with his business relationship falls under the Linn rationale (the Garmon exception).
Whereas, whether the information was in fact confidential or whether it was proper for
them to send hearsay is more of a labor issue and does not fit in the Garmon
                                                                                   -9-


exception applied in Linn. In other words, we hold that to the extent the tortious
interference claim relies on intentional defamation, it is not preempted pursuant to
Linn, and to the extent it relies upon other conduct, it is preempted by Garmon under
the Plumbers rationale.
      {¶31} Finally, the defendants suggest that certain elements of each cause of
action (unprivileged for defamation and not justified for tortious interference) will
require delving into the collective bargaining agreement. As appellant argues, the
inapplicability of the collective bargaining agreement to these claims was already
decided by the federal court when it remanded and refused to allow removal with the
specific finding that these claims did not involve the collective bargaining agreement.
In any event, contrary to their general argument, they would not have a duty under
federal law to provide knowingly false statements (the only ones found above not to be
preempted).
                                    CONCLUSION
      {¶32} For the foregoing reasons, the judgment of the trial court finding all
claims preempted by the NLRA is reversed and remanded in part.              Appellant’s
intentional defamation claim is not preempted and can remain in state court.
Appellant’s tortious interference claim can remain in state court but only to the extent
that it is based upon intentional defamation. The dismissal of appellant’s negligent
defamation claim is affirmed as such claim is preempted by the NLRA.

Donofrio, J., concurs.
DeGenaro, J., concurs.
