                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                    File Name: 05a0015p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                      X
                                Plaintiff-Appellant, -
 RICHARD WEBSTER,
                                                       -
                                                       -
                                                       -
                                                           No. 03-2601
            v.
                                                       ,
                                                        >
 UNITED AUTO WORKERS, LOCAL 51,                        -
                                                       -
                                                       -
 INTERNATIONAL UNITED AUTO WORKERS, ARTHUR

                                                       -
 BIANCHI, NATHANIEL MARTIN, GIL WOJCIK,

                                                       -
 ROSALYN GRANT, HOLLY WAINGROW, WILLIAM
                                                       -
 MICHAEL KIRKSEY, ILLIE WILLIAMS, ROBERT LEE
                                                       -
 MITCHELL, JAMES MOORE, STEPHEN YOKICH,
 MAURICE MITCHELL, STAN GEIS, PETE CUTWAY,             -
                                                       -
                                                       -
 NATE GOODWIN, and EUNICE STOKES, jointly and

                             Defendants-Appellees. -
 severally,
                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                   No. 01-74983—Victoria A. Roberts, District Judge.
                               Submitted: December 9, 2004
                            Decided and Filed: January 12, 2005
                Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.
                                    _________________
                                        COUNSEL
ON BRIEF: Benjamin Whitfield, Jr., Cynthia J. Gaither, BENJAMIN WHITFIELD, JR. &
ASSOCIATES, Detroit, Michigan, for Appellant. Roger J. McClow, William J. Karges, KLIMIST,
McKNIGHT, SALE, McCLOW & CANZANO, Southfield, Michigan, Laura J. Campbell,
ASSOCIATE GENERAL COUNSEL INTERNATIONAL UNION, UAW, Detroit, Michigan, for
Appellees.
                                    _________________
                                        OPINION
                                    _________________
       BOYCE F. MARTIN, JR., Circuit Judge. Richard Webster brought this action against
United Auto Workers, elected officials of Local 51, and International United Auto Workers and


                                              1
No. 03-2601           Webster v. United Auto Workers Local 51, et al.                            Page 2


some of its elected officials alleging (1) violation, by constructive discharge, of the Labor
Management Reporting and Disclosure Act, (2) injurious falsehood, (3) intentional infliction of
emotional distress, and (4) continuing acts of defamation and retaliation. The district court granted
defendants’ motion for summary judgment and Webster timely appealed. We AFFIRM, because
Webster offers no proof to create a genuine issue of material fact.
                                                   I.
         Webster began working for Chrysler Corporation in 1964. From 1974 to at least September
2002, he held full-time elected union positions in which he represented plant employees and
performed contract administration duties. During negotiations for the 1997 Local 51 Settlement
Agreement with Chrysler, Webster learned that Local 51 management had agreed silently to end
propshaft production at the Mound Road Engine Plant. Because the agreement would have resulted
in the loss of several hundred jobs at the plant, Webster refused to sign it. A twenty-eight day strike
followed. In responding to questions from the media, Webster stated that International Auto
Workers had “sold out” the membership. Webster alleges that as a result of his opposition he
became the target of “reprisals, rejection, humiliation, slander, libel, deprivation, [and] ostracization
from all named Defendants.”
        Webster argues that we should consider the following facts as continuing acts of reprisal
against him. In May, Local 51 held elections for positions at the Mound Road Engine Plant.
Webster won re-election as the Matching Division Committeeman. The election results were
contested by Darryl Mitchell, not a party to this case, who alleged misconduct by Webster’s
challenger. The union assigned defendant Eunice Stokes to investigate. She overturned the election
results and ordered a re-run election, in which Mitchell would run against Webster. Webster won
the second election.
        In November, Webster noticed that an employee, defendant Michael Kirksey, received lost-
time pay for which he was not eligible according to Local 51 bylaws and the United Auto Workers
Constitution. Webster disputed the pay and defendant Stan Geis, the Administrative Assistant to
the Secretary-Treasurer, investigated the alleged impropriety, although he had no authority to do so.
Geis determined that Kirksey committed no impropriety. Kirksey then sued Webster in June 1999
for defamation. As evidence of the falsehood of Webster’s accusations, Kirksey submitted a letter
of exoneration from Geis.
         In 1999, Webster and certain defendants sat on Local 51's bargaining committee. In August,
they began negotiations with Chrysler for the Local Collective Bargaining Agreement. A settlement
was reached in October and a vote for ratification was scheduled. Volumes of literature were
distributed, by Webster among others, in favor of and against the agreement. Webster acknowledges
distributing documents “informing the membership of the bargaining committee’s responsibility to
go back to the bargaining table after the no-vote on the local agreement.” Defendants present
evidence that Webster distributed to Local 51 members “marching orders” to “[g]o out there and
disrupt, excite, and whip the rank and file up over any and every issue so that we can prevent the
[agreement] from being ratified.” The membership did not ratify the agreement. A second vote for
ratification was scheduled.
       In the meantime, the bargaining committee distributed its own literature seeking support of
the agreement and criticizing Webster. For example, the committee distributed a series of
documents containing satirical question-and-answer conversations with Webster. One was entitled
“A Candid Conversation with Sir Richard of Webster.” Webster claims that these documents were
not written to garner support for the agreement, but rather to portray him as a liar. He claims that
defendants were “bombarding the general membership with negative literature, posters, flyers, [and]
cartoons about [him].” He demanded an apology from the committee; in response, the committee
No. 03-2601           Webster v. United Auto Workers Local 51, et al.                            Page 3


distributed literature entitled, “So Richard You Want An Apology,” which, Webster says,
apologized to Local 51 members for not “taking him out” sooner.
        On the second vote, the membership ratified the agreement. Subsequently, Webster filed
several internal charges against the local officials relating to the allegations made in this action, and
alleging violations of the United Auto Workers Ethical Procedures Code. The charges were
dismissed by the union’s Executive Board, which was composed of named defendants.
       Webster appealed that decision to Local 51, raising these three issues: (1) the cancellation
of a meeting in which Local 51 management was to consider Webster’s allegations, (2) the failure
of Local 51's Executive Board to notify Webster of its decision to dismiss his charges, and (3) the
intervention of Local 51's Executive Board to block Webster’s charges. The appeal was denied.
Webster contends that local and national union management deliberately ignored his charges and
dismissed them with no explanation. He states that he “finally succumbed to defendants’ conduct
and suffered emotional illness and early unplanned retirement.”
       In December 1999, Webster’s doctor advised him to take sick leave. Webster refused, and
ultimately began to abuse alcohol. By December 15 he was not able to work; his doctor prescribed
medication and a therapy program. On December 31 he retired from Chrysler and, pursuant to the
National Agreement, he was required to relinquish his union position. However, he remained
chairman of the bylaws committee until September 2001.
       Simultaneous with his retirement, Webster brought this action. The district court dismissed
each of Webster’s claims on summary judgment, and Webster timely appealed.
                                                   II.
        We examine an appeal of a summary judgment utilizing the standard of review employed
by the district court. Qualicare-Walsh, Inc. v. Ward, 947 F.2d 823, 825 (6th Cir. 1991). Summary
judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
                                                  III.
1.      Labor Management Reporting and Disclosure Act
        The Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(2), secures the
right of every member of any labor organization to
        meet and assemble freely with other members; and to express any views, arguments,
        or opinions and to express at meetings of the labor organization his views upon
        candidates in an election of the labor organization or upon any business properly
        before the meeting, subject to the organization’s established and reasonable rules
        pertaining to the conduct of meetings: Provided, that nothing herein shall be
        construed to impair the right of a labor organization to adopt and enforce reasonable
        rules as to the responsibility or every member toward the organization as an
        institution and to his refraining from conduct that would interfere with its
        performance of its legal or contractual obligations.
Section 411(a)(5) prohibits a union from fining, suspending, expelling, or “otherwise disciplin[ing]”
any of its members for exercising rights secured under the Act. See Breininger v. Sheet Metal
Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 90 (1989). Webster, who concedes that he was
“not officially discharged or suspended,” argues that he was “disciplined” in violation of the Act by
No. 03-2601           Webster v. United Auto Workers Local 51, et al.                            Page 4


the local and international union. Webster alleges that the discipline he received was the unions’
“concerted activity to disparage [him] to the membership and to deny him the right to challenge this
concerted activity within the context of a union hearing.” As to this claim, the district court
determined that Webster failed to allege facts to show that he was “disciplined” in violation of the
Act.
        We agree that Webster fails to show that defendants “disciplined” him. The Supreme Court
has concluded “that by using the phrase ‘otherwise disciplined,’ Congress did not intend to include
all acts that deterred the exercise of rights protected under the [Act], but rather meant instead to
denote only punishment authorized by the union as a collective entity to enforce its rules.”
Breininger, 493 U.S. at 91; accord United Food and Commercial Workers v. United Food and
Commercial Workers Int’l Union, 301 F.3d 468, 473 (6th Cir. 2002). According to the Breininger
Court, as a general rule, a union member is “disciplined” when the union takes action “‘under color
of the union’s right to control the member’s conduct in order to protect the interests of the union or
its membership.’” 493 U.S. at 91 (quoting Miller v. Holden, 535 F.2d 912, 915 (5th Cir. 1976)). It
described such discipline as punishments typically imposed by the union as an entity through
established procedures meant to signify penalties applied by the union in its official capacity, “rather
than ad hoc retaliation by individual union officers.” Id. at 92, n.15.
        In light of this description, we have measured allegations of discipline by how closely they
resembled ad hoc retaliation by individual union officials or, in contrast, punishment authorized by
a collective entity to enforce its rules. United Food, 301 F.3d at 473-74. In United Food, we
concluded that the alleged discipline—which basically constituted a reassignment of union members
to an area outside of the union’s jurisdiction—represented the kind of ad hoc retaliation not
governed by the Act. We also found it significant that the alleged punishment in that case did not
result from an established union disciplinary process. Id. (citation omitted). In making this
decision, we looked to the Seventh Circuit’s holding in Konen v. International Brotherhood of
Teamsters, Local 200, 255 F.3d 402, 410 (7th Cir. 2001), that a plaintiff was not “disciplined” in
violation of the Act because he was “never subjected to official Union discipline . . . and there [was]
no evidence that his membership rights or status [had] been diminished in any way.”
          We apply this reasoning to conclude that Webster failed to show evidence of “discipline”
as it is defined by the Act. Even assuming that Webster did retire and that he could satisfy some of
the elements of constructive discharge, he presents no evidence to show that the alleged treatment
of him was authorized by a collective entity to enforce its rules or that it resulted from an established
union disciplinary process. As presented by Webster, he was the target of the kind of ad hoc
retaliation by individual union officials that is not subject to the protections of the Act.
        Webster’s argument to the contrary, based on the Seventh Circuit’s decision in Kinslow v.
American Postal Workers Union, Chicago Local, 222 F.3d 269 (7th Cir. 2000), is not persuasive.
In that case, the Seventh Circuit affirmed a district court’s finding that the Postal Workers Union
unlawfully retaliated against plaintiff Kinslow, who had brought to its attention certain criminal acts
by the union president. Id. at 272. The union disparaged Kinslow to other union members, ignored
his complaints of improper treatment, expelled him from the union, and refused to reinstate him after
his allegations against the president were revealed to be true. Id. at 272-73, 279. The district court
correctly found that Kinslow was not applicable because the plaintiff in that case was actually
expelled from the union, and Webster was not.
No. 03-2601           Webster v. United Auto Workers Local 51, et al.                           Page 5


2.     Injurious Falsehoods
        Second, Webster claims that defendants committed injurious falsehood in violation of
Michigan law by distributing cartoons and other publications that portrayed him as a “liar.” In
Michigan, a defendant commits an injurious falsehood if it publishes a false statement either with
knowledge of its falsity or “in reckless disregard of its truth or falsity.” Kollenberg v. Ramirez, 339
N.W.2d 176, 179 (Mich. Ct. App. 1983); accord Falls v. Sporting News Publ’g Co., 834 F.2d 611,
617 (6th Cir. 1987). Recovery for injurious falsehood is appropriate where there has been “some
interference with an economically advantageous relationship which results in pecuniary loss.”
Kollenberg, 339 N.W.2d at 177-79. In order to establish a prima facie case of injurious falsehood,
a plaintiff must show: (1) that the defendant published a false statement to a third party knowing that
statement to be false or acting in reckless disregard for its truth or falsity; (2) that the defendant
knew, or should have known, that this false publication would likely result in pecuniary loss or in
harm to the interests of the plaintiff having a pecuniary value; and (3) that the plaintiff suffered
special damages as a result. Neshewat v. Salem, 173 F.3d 357, 364 (6th Cir. 1999) (citing
Kollenberg, 339 N.W.2d at 179).
        Without analyzing the district court’s conclusion regarding Webster’s pleading of special
damages, we affirm the court’s dismissal of this claim because Webster fails to present evidence to
support the elements of the claim. In their motion to dismiss, defendants argued that Webster failed
to produce any evidence that defendants published any false statements or that they knew or should
have known that any false statements would likely result in pecuniary loss or in harm to any interest
of Webster’s having pecuniary value. In response to defendants’ motion, Webster stated only that
he properly alleged the elements of the claim. He provided absolutely no evidence to support any
element of the claim. There is simply nothing in the record to show that defendants knew or had
reason to know that their statements were false, that defendants knew or should have known that
their statements would likely result in any pecuniary loss, or that Webster suffered any special
damages as a result. Webster’s claim for injurious falsehood fails on summary judgment. For that
reason, the claim is properly dismissed.
3.      Intentional Infliction of Emotional Distress
         Third, Webster claims intentional infliction of emotional distress. Under Michigan law, the
elements of a claim of intentional infliction of emotional distress are (1) extreme or outrageous
conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Graham v.
Ford, 604 N.W.2d 713, 716 (Mich. Ct. App. 1999) (citing Haverbush v. Powelson, 555 N.W.2d 206
(Mich. Ct. App. 1996)). In ruling on such a claim, “it is initially for the [trial] court to determine
whether the defendant's conduct reasonably may be regarded as so extreme and outrageous as to
permit recovery.” Doe v. Mills, 536 N.W.2d 824, 834 (Mich. Ct. App. 1995) (citing Sawabini v.
Desenberg, 372 N.W.2d 559 (Mich. Ct. App. 1985)). However, “[w]here reasonable men may
differ, it is for the jury, subject to the control of the court, to determine whether, in the particular
case, the conduct has been sufficiently extreme and outrageous to result in liability.” Restatement
(Second) of Torts §46 cmt. h (1965); see also Linebaugh v. Sheraton Mich. Corp., 497 N.W.2d 585,
588-89 (Mich. Ct. App. 1993) (noting that whether conduct is sufficiently outrageous and extreme
to render one liable for the intentional infliction of emotional distress is a matter for determination
by the trier of fact). Here, the trial court properly concluded that Webster failed to allege any facts
on which a reasonable person would find extreme or outrageous conduct.
        Extreme or outrageous conduct is that which goes beyond the bounds of decency and would
be considered atrocious and utterly intolerable in civilized society. Johnson v. Wayne County, 540
N.W.2d 66, 74 (Mich. Ct. App. 1995); see also Margita v. Diamond Mortgage Corp., 406 N.W.2d
268, 271 (Mich. Ct. App. 1987) (stating that liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppression, or other trivialities). As evidence of extreme or
No. 03-2601           Webster v. United Auto Workers Local 51, et al.                            Page 6


outrageous conduct, Webster identifies defendant Kirksey’s suit against him for defamation,
defendants’ refusal to process his allegations of impropriety against certain defendants, and
defendant Yokich’s alleged warning to Webster’s co-workers to “disassociate from plaintiff”
because “he was going to ‘gut’ plaintiff.” Webster claims that these instances constitute outrageous
and extreme conduct that forced him to retire, and, at the very least, reasonable minds could differ
as to whether defendants’ conduct was extreme or outrageous.
        In support, Webster relies on the case of Haverbush, 551 N.W.2d 206, for the proposition
that simply because he contends that certain alleged facts represent extreme and outrageous conduct
a grant of summary judgment is precluded. In response, the district court stated that where alleged
conduct does not rise to the level of conduct that is extreme or outrageous, summary judgment is
appropriate. The district court recognized, moreover, that the decision in Haverbush was limited
to its particular facts, which undoubtedly would lead reasonable minds to find the extreme and
outrageous conduct absent here. In Haverbush, 551 N.W.2d 209-10, defendant
       (1) sent a barrage of letters to Haverbush, to his daughter, and to his future in-laws,
       in which she called him a compulsive liar, threatened his fiancée with physical harm,
       and threatened to tell his colleagues that he had harassed [her]; (2) left lingerie on
       Haverbush’s vehicles and at his residence several times; (3) left an ax and a hatchet
       on his vehicles, after having asked him how his fiancee would like to have an ex
       through her windshield; (4) told a co-worker several times that someone should “ice”
       Haverbush; and (5) wrote several letters threatening to move in with him even
       though he was engaged and would soon be married.
Webster fails to allege conduct that rises to this extreme degree. Webster was subject only to the
kinds of insults and indignities that Michigan courts have determined are not properly the bases for
a claim of intentional infliction of emotional distress. See Margita, 406 N.W.2d at 271. The district
court properly dismissed the claim.
4.     Continuing Retaliation and Defamation
        Finally, Webster claims continuing acts of defamation and retaliation. The district court
properly found that Webster presented no evidence to show that defendants continued to publish or
distribute the cartoons and other publications of which Webster complains. Also, because Webster
cannot show that defendants’ conduct constituted defamation or retaliation in any way, any claim
that such acts are “continuing” is without merit.
                                                IV.
       For the foregoing reasons, we affirm the district court’s grant of summary judgment.
