Dunn v. Air Line Pilots Association

Citations: 193 F.3d 1185; 162 L.R.R.M. (BNA) 2577; 1999 U.S. App. LEXIS 26823Docket: 97-5587

Court: Court of Appeals for the Eleventh Circuit; October 25, 1999; Federal Appellate Court

Original Court Document: View Document

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Larry Dunn and other airline pilots (Plaintiffs) are appealing a decision from the U.S. District Court for the Southern District of Florida against the Air Line Pilots Association (ALPA) and its representatives (Defendants). The pilots claim ALPA defamed them by labeling them as "scabs" for crossing union picket lines during a 1989 strike at Eastern Air Lines. They also allege that this designation intentionally harmed their business relations with other airlines. The district court dismissed the tortious interference claim, stating it failed to establish a valid cause of action. For the libel claim, the court granted summary judgment, determining that the label "scabs" was not false, as the pilots acknowledged crossing picket lines during the strike. Furthermore, the court found no evidence of actual malice on ALPA's part. The case outlines the context of the sympathy strike initiated by ALPA in support of the International Association of Machinists (IAM) during negotiations with Eastern Air Lines, highlighting the union's efforts to ensure compliance among pilots and the consequences for those who did not honor the picket lines.

The Eastern pilots' sympathy strike continued following a series of internal debates among the Eastern MEC, which began on August 1, 1989. After five days of discussions and two straw polls indicating majority support, the MEC unanimously resolved to extend the strike, pending local pilot meetings. The first meeting on August 6 in Miami resulted in an overwhelming vote to maintain the strike, a decision echoed in subsequent meetings. Between August 6 and 9, ALPA conducted additional pilot meetings throughout the Eastern system, where pilots consistently voted to continue the strike. On August 11, 1989, the Eastern MEC officially decided to maintain the strike, which ALPA President Duffy communicated to all members, stating pilots would not return to work without a structured settlement.

The strike's status was confirmed on August 12, with ALPA publishing that the picket line would remain. On November 22, 1989, the MEC voted to end the sympathy strike despite the ongoing IAM strike, offering an unconditional return to work. During the strike, ALPA compiled a list of pilots who crossed picket lines, referred to as the "scabs" list, which was widely distributed, culminating in the 1991 publication "The Scabs of Eastern of the Strike of '89." The plaintiffs, identified as pilots on this list, sued ALPA for libel and interference with business relationships. The district court dismissed the interference claim and granted summary judgment for ALPA on the libel claim, citing the pilots' failure to demonstrate the list's falsity or actual malice. The pilots are appealing these decisions.

The Court reviews the dismissal of a complaint de novo, taking all allegations as true and favoring the plaintiff, only dismissing if no facts could support relief. Summary judgment orders are also reviewed de novo, considering evidence and inferences in favor of the non-moving party.

The pilots' claim for tortious interference with business relationships was dismissed by the district court under Fed. R. Civ. P. 12(b)(6). The dismissal was based on the pilots' failure to demonstrate the existence of a specific business relationship with an airline, as their allegations regarding ALPA's publication of a "scab list" only indicated an interference with their general ability to find employment in the airline industry. Under Florida law, a claim for tortious interference requires the existence of a particular business relationship, knowledge of that relationship by the defendant, intentional and unjustified interference, and resulting injury.

Regarding the libel claim, Florida law defines libel as the unprivileged publication of false statements causing injury. However, federal labor law preempts state libel law, favoring free speech in labor disputes. A defamatory statement in this context is actionable only if made with actual malice, requiring clear and convincing evidence that the statement was known to be false or made with reckless disregard for its truth. The pilots faced challenges in proving actual malice, which is a heightened standard established by Supreme Court precedent.

A defamation claim must establish two key points: the existence of a false statement of fact and that the plaintiff proves actual malice by clear and convincing evidence. The Supreme Court has clarified that the term "scab" can support a libel claim if it is false and made with actual malice. In the *Letter Carriers* case, the Court determined that the description of individuals as "scabs" was factually true because they had refused to join a union, emphasizing that the context of the term's usage matters significantly. The Court applied a reasonable reader standard, indicating that readers would not interpret the term as implying a criminal act. Furthermore, the Court distinguished between factual statements and rhetorical hyperbole, asserting that certain expressions, like those found in Jack London’s work, are protected under federal labor laws. Ultimately, for a defamation claim to succeed, there must be a demonstration of a false statement of fact.

The Court determined that the language in "Ode To A Scab" was figurative, expressing the union's strong opposition to anti-union sentiments rather than factual claims. The term "scab," as defined by Jack London, is widely recognized in trade union literature, and the use of "traitor" was not meant to imply criminal treason. The reasonable reader standard, consistently applied by the Supreme Court and this Circuit, examines how a statement is understood by an average reader, and a literal interpretation of a cartoon is not appropriate. 

Applying this standard, the Court evaluated the "scabs" list in the context of the 1989 strike, defining "scab" as someone who crosses picket lines during a strike. The list was found to accurately identify pilots who worked during the strike, as they admitted to crossing picket lines. Consequently, the district court's summary judgment in favor of ALPA was upheld, as the pilots failed to demonstrate that the designation of "scabs" was false. The pilots' argument that the strike was illegitimate due to procedural violations within ALPA's Constitution and By-Laws did not align with the Court's interpretation, which emphasized understanding the context and reasonable meaning of the statements rather than a strict legal definition of a strike.

The strike initiated by ALPA's leadership led to a significant work stoppage, with up to ninety percent of Eastern pilots initially refusing to fly. A strike committee was formed, and local communication centers were operational during this period. Although some plaintiffs returned to work during the strike, the majority of pilots supported the work stoppage. The plaintiffs argue that ALPA's leadership should have conducted a secret ballot vote prior to the strike; however, it is uncontested that the work stoppage occurred. The term "scab" referred to those who crossed picket lines during this strike, and the designation was deemed true based on a reasonable reader's understanding of the situation, rather than a strict legal interpretation of the strike's validity under ALPA's constitution. Legal precedents, including Supreme Court decisions, support that such terms can be contextually understood and do not necessarily require technical legal accuracy. The district court affirmed that the 1989 sympathy strike was lawfully called, despite general constitutional provisions about member voting, as ALPA's Board of Directors had the authority to manage affairs and interpret the constitution, including developing binding internal policies.

The "Strike Policy" section of the ALPA Administrative Manual grants the MEC the authority to declare sympathy strikes. It allows the President and the MEC to decide whether to honor picket lines from other crafts, stating that ALPA members must not cross another member's picket line for struck work. This policy has remained unchanged since 1966 and has been consistently interpreted to apply only to primary strikes, not secondary sympathy strikes, without requiring a membership vote prior to declaration. The district court affirmed that ALPA's interpretation of its governing documents should receive judicial deference unless proven patently unreasonable or made in bad faith. Historical evidence shows ALPA's practices regarding sympathy strikes have been consistent, with strong participation from pilots during leadership-declared strikes. The court found no evidence of bad faith or unreasonable interpretation by ALPA over the past thirty years.

Additionally, the defendants were granted summary judgment on the libel claim due to insufficient evidence of "actual malice." The evidence indicated that the defendants reasonably believed the pilots were "The Scabs of Eastern of the Strike of '89" for crossing picket lines during a sympathy strike. There was no evidence to support a jury finding that the defendants acted with knowledge or reckless disregard regarding the pilots’ actions or the meanings of "scabs" and "strike" in this context.

The dissent criticizes ALPA's interpretation as unreasonable, emphasizing that the core issue is not personal opinions on the appropriateness of a membership vote for sympathy strikes, but rather whether the court should defer to ALPA's interpretation of its constitution based on the established facts. In cases of actual malice in defamation, a plaintiff must prove the defendant acted with a "high degree of awareness of probable falsity" of their statements, rather than simply demonstrating negligence. The actual malice standard requires clear and convincing evidence that the defendant knew their statement was false or harbored serious doubts about its truth.

In this case, there is insufficient evidence to support the claim that the Defendants believed the strike was illegally called, rendering the description of pilots as "scabs" inaccurate. Notably, no party contested the strike's legality during its occurrence. The Defendants asserted that they viewed pilots crossing ALPA's picket lines as "scabs" due to their abandonment of the sympathy strike and siding with Eastern. They also maintained that the strike was authorized by ALPA's Strike Policy, which allows such actions without a formal membership vote, supported by a long-standing policy and practice. Given that the majority of pilots participated in the strike against Eastern and later voted to continue it, the Defendants did not demonstrate serious doubts regarding the characterization of these pilots. Consequently, the court affirmed the district court's summary judgment on the libel claim, as the pilots failed to prove both a false statement and actual malice.

The district court dismissed the argument from a group of pilots who crossed union picket lines after an August 6 meeting, asserting they could not be labeled as "scabs." They claimed that MEC Chairman Bavis instructed them to return to work on that date, which they argued invalidated the sympathy strike called by ALPA on March 3, 1989. The audiotape of the meeting indicated Bavis presented his remarks as a pilot rather than as an elected representative, emphasizing the need for unity among the Eastern pilots. The pilots divided into groups based on their actions regarding the picket lines; Group I crossed after the August 6 meeting, while Groups II and III crossed earlier and alleged defamation from being labeled "scabs." Despite the audiotape, a jury issue arose regarding the specifics of Bavis's comments, as affidavits from seventeen pilots contradicted the tape's clarity. However, it was undisputed that after the August 6 meeting, the work stoppage continued, and throughout August, ALPA and the Eastern MEC instructed pilots to remain on strike and confirmed their decision to continue the strike with overwhelming majority support. ALPA President Duffy communicated this decision to all pilots, stating they would not return to work without a structured settlement.

The dissent references an ALPA newsletter and charges against Bavis as evidence related to an August 6, 1989 meeting; however, both the newsletter (published in 1992) and the charges (from December 1989) are not contemporaneous with the confusion regarding the strike that day. On August 12, 1989, the strike operations committee confirmed the strike was ongoing, and media reports reflected the pilots' strong vote to continue the sympathy strike. Both the Eastern MEC and ALPA informed Eastern pilots that the option to end the strike had been rejected. From August 12 until the strike's conclusion on November 22, Eastern MEC directed pilots to maintain picket lines, which they did while in uniform.

The assessment focuses on whether the Defendants knew the strike had ended when they labeled certain pilots as "scabs." It is established that the strike continued post-August 6, and there is no evidence that Defendants believed the strike had terminated. Even if pilots misinterpreted Bavis's remarks as instructions to return to work, that subjective impression does not demonstrate actual malice. Actual malice is determined by the Defendants' subjective views, not the pilots'. The argument that ALPA acted with malice due to awareness of pilots returning to work without considering the impact of Bavis's statements is rejected, as Bavis's statements were part of ongoing events and the union's clear announcement on August 12 reiterated that the strike was still active.

Thus, the crossover pilots failed to provide sufficient evidence for a reasonable juror to conclude that ALPA Defendants believed it was false to label them as "scabs," and there is inadequate evidence to establish actual malice. Additionally, appellant Joseph S. Norman, II, argues pro se that he crossed picket lines for training and not to work as a pilot, claiming he did not violate the strike and should not be considered a "scab."

A case established that trainee pilots do not qualify as "permanent employees" under the Railway Labor Act, referencing *Eastern Air Lines, Inc. v. Air Line Pilots Ass'n Int'l*, 920 F.2d 722, 727 (11th Cir. 1990). Despite Norman's arguments, evidence indicates he was hired as a DC-9 Captain and was compensated while in training, thus fulfilling his job requirements. His employment status, based on common understanding rather than legal classification, is critical in assessing whether he can be labeled a "scab." 

Norman also claimed he did not receive ALPA's motion for summary judgment with the required notice period under Fed. R. Civ. P. 56(c). However, records confirm that notice was duly served to his counsel nine months before the hearing. His later decision to represent himself does not invalidate the prior service to his counsel, eliminating the need for re-service. 

The court concluded that no further evidence indicated Norman was not a scab, as his situation mirrored that of other pilots who worked during the strike. The district court's summary judgment favoring all defendants on the plaintiffs' libel claims is affirmed, along with the dismissal of the plaintiffs' claim for intentional interference with their business relationships. Additionally, the court found no abuse of discretion in denying Norman's motion for severance. The term "scab" is recognized as a derogatory label within labor disputes, often associated with threats of harm, as noted in various historical references, including a well-known poem attributed to Jack London.

William West faced severe consequences for not participating in the 1997 Teamsters strike against UPS, as his daughter's medical insurance, controlled by the union, was terminated, jeopardizing her health following multiple surgeries for epilepsy and kidney issues. Similarly, UPS driver Rod Carter experienced violent retaliation, being assaulted and stabbed by a mob for his decision to work. The hostility towards strikebreakers, labeled "scabs," extended to other unions; for instance, a police union leader in Houston encouraged aggressive actions against scab drivers. Other incidents included vandalism and threats against individuals crossing picket lines, such as a woman whose car was shot at and defaced during a United Auto Workers strike. The narrative depicts scabs as deeply reviled figures within labor disputes, drawing comparisons to historical traitors like Judas Iscariot and Benedict Arnold. The legal implications of being labeled a scab are significant, as demonstrated in the Supreme Court case Old Dominion Branch No. 496, where the allegation of being a scab was deemed a factual claim with potential for defamation if false and made with actual malice.

The district court's summary judgment on the libel claim brought by pilots against the Air Line Pilots Association (ALPA) was deemed erroneous due to the determination that a jury could find the allegation of being "scabs" to be false and that actual malice could be established. ALPA, representing airline pilots, called for a "sympathy strike" on March 4, 1989, in solidarity with the International Association of Machinists (IAM) against Eastern Airlines. This strike lasted until November 22, 1989, when the MEC directed pilots to return to work despite the IAM strike continuing. After the sympathy strike, ALPA published a list titled "The Scabs of Eastern of the Strike of '89," which included pilots who allegedly crossed picket lines. The appellants, pilots listed, claimed this constituted libel. The district court ruled that the pilots failed to prove the "scab" allegation was false. However, the dissenting opinion argued that, unlike the case referenced (Letter Carriers), the pilots who crossed picket lines did not fit the legal definition of "scabs" as established by Webster's Dictionary, which describes "scabs" in various contexts including refusal to join a union or returning to work during a strike. The dissent contends that the majority misapplied the precedent from Letter Carriers, arguing the factual context differs significantly.

ALPA's claim that appellants were "scabs," implying they worked during a union strike, is deemed false because ALPA was never legally on strike. For ALPA's statement to be accurate, two conditions had to be satisfied: appellants must have worked for Eastern and done so during a lawful strike by ALPA. Although it is confirmed that appellants flew for Eastern, ALPA's failure to follow its own constitutional procedures meant it was not legally on strike. Consequently, the assertion that appellants were scabs is false.

In defamation claims arising from labor disputes, plaintiffs must demonstrate the falsity of the statement and actual malice. The falsity is determined by whether a reasonable reader would interpret the statement differently than the truth. The analysis concludes that ALPA’s use of "scabs" was meant literally, and it is acknowledged that appellants can only be classified as such if ALPA was on strike. However, the determination of whether ALPA was on strike must rely on the union's constitutional rules and procedures, rather than perceptions of a reasonable reader. The majority's perspective, which suggests a less formal approach, is challenged, emphasizing that ALPA did not adhere to its constitutional requirements for calling a strike. As a result, the allegation that appellants were scabs is conclusively false. The relevant constitutional provisions specify that a strike requires a ballot of the members and majority approval from the Master Executive Council, which was not obtained in this case.

The ALPA Constitution and By-Laws clearly mandate a membership vote before a strike can be initiated. ALPA presents two interpretations of this requirement: first, that the provisions are discretionary and outline procedures for a strike vote rather than necessitating one, which conflicts with Article I's explicit requirement for a ballot before calling a strike. Second, ALPA argues that the voting provisions apply solely to primary strikes, excluding sympathy strikes, a view deemed unreasonable as it ignores the uniform impact of any strike on labor and management. This interpretation challenges the fundamental democratic principles of unions, allowing leaders to unilaterally declare strikes without adhering to constitutional voting requirements. The text's language supports a broad interpretation of "strike" without distinctions among types. Moreover, it would make more sense to require a membership vote for sympathy strikes due to their indirect benefits. Even with deference to ALPA's interpretation, a membership vote is still mandated, and since no such vote occurred, the strike is invalid. The consistency of ALPA's interpretation over thirty years does not validate its legality, nor does its inclusion in the Administrative Manual provide grounds to disregard the Constitution.

The Constitution and By-Laws must not be treated as mere default provisions subject to arbitrary changes by the Board of Directors. A poll of 10 ALPA members conducted two weeks before the strike aimed to assess member sentiment regarding honoring an IAM picket line, but it did not constitute a formal vote on whether ALPA should initiate a strike. The significance of this poll is further explored later in the document. Appellees claim the strike was legal despite lacking proper authorization, arguing that pilots engaged in a strike even if the appellants did not participate. However, this argument does not adequately address the context of the "scab" allegations. In typical wildcat strikes, a "scab" label may accurately apply to non-striking workers, but this case differs as ALPA likely intended to imply the strike was legal through its scab list publication. Assuming otherwise would suggest ALPA published a list of pilots who worked during an illegally ordered strike, which would be counterproductive. The scab list was distributed to pilots at other airlines, aiming to hinder employment opportunities for those named. If the strike were illegal, inclusion on the scab list would not justify denying employment; rather, it would enhance the appeal of pilots who refused to join an unauthorized strike. Thus, the scab allegations only hold meaning if the strike was legally called, as inclusion on the list would then carry negative implications. This assumption is reinforced by the union's publication of the scab list following a formal resolution. Ultimately, the strike was not conducted according to the union's Constitution and By-Laws, rendering it invalid, which establishes the falsity of the scab allegation and supports the appellants' libel claim.

To prevail in their libel claim, the appellants must demonstrate that the scab allegation was false and made with actual malice, defined as knowledge of its falsity or reckless disregard for its truthfulness. This standard, established in New York Times Co. v. Sullivan, has been extended to labor disputes. Reckless disregard implies the defendant had serious doubts about the truth of the allegation. The appellants present two theories regarding ALPA's alleged malice, one shared by all appellants and another specific to Group I appellants.

The first theory posits that ALPA acted with malice by publishing the scab list while knowing the strike was illegally called or harboring substantial doubts about its legality. ALPA counters that it believed the strike was lawful, citing its Constitution and By-Laws, which outline the disciplinary process against members who engage in strikebreaking. The ALPA Administrative Manual states that members participating in strikebreaking during a legal strike are subject to automatic expulsion.

ALPA argues it did not require a membership vote for a sympathy strike and that its officials believed the strike was authorized. Conversely, the appellants argue that it is improbable ALPA genuinely believed it could call a strike without a vote, given the clear requirements in its Constitution and By-Laws. They cite four arguments to support their position, including the legal significance of voting rights and previous lawsuits against ALPA regarding voting rights violations. The appellants assert that the leadership must have known a vote was required, as evidenced by ALPA’s historical legal challenges related to voting rights.

In Klemens v. Air Line Pilots Ass'n, Int'l, the court addresses the potential breach of contract by the Air Line Pilots Association (ALPA) concerning its internal Constitution and By-laws. It highlights that a union’s failure to adhere to its constitutional obligations can lead to claims of breach, particularly when the union acts against the interests of its members. The excerpt notes that ALPA officials' beliefs about the legality of a strike, despite evidence to the contrary, may not shield them from accusations of malice. The court emphasizes that the jury is responsible for weighing conflicting evidence.

Federal law requires unions to maintain a "duty of fair representation," obligating them to act in the best interests of their members, which includes avoiding defamation of members who do not participate in illegal strikes. The document argues that ALPA’s leadership must be aware of its constitutional obligations and that the notion of bypassing membership polling before calling a strike is implausible, suggesting possible malice. Furthermore, a pre-strike opinion poll conducted by ALPA indicated uncertainty about its unilateral authority to call a strike, as it sought input from members on their preferences regarding honoring a picket line. This raises concerns about the concentration of decision-making power within a small group, which could lead to potential corruption.

ALPA's inclusion of a third option in its poll indicates uncertainty regarding its constitutional authority to call a strike without a membership vote. This could suggest that ALPA was aware it could not unilaterally initiate a strike and intended for members to relinquish their voting rights. The lack of thorough investigation into the serious allegations made against certain pilots—specifically labeling them as "scabs"—raises concerns of actual malice, particularly given the union's duty of fair representation. Although ALPA researched whether the individuals crossed picket lines, it failed to investigate whether a membership vote was necessary before calling a sympathy strike. The absence of legal consultation regarding this authority might lead a jury to infer that ALPA doubted the accuracy of its allegations. Consequently, the district court's summary judgment was inappropriate, as a reasonable jury could find either side guilty of malice. Additionally, while ALPA may not have acted with malice towards all pilots, it could have exhibited malice towards a specific group (the "Group I" pilots) who returned to work during the strike, as they were nonetheless labeled as scabs despite the ongoing status of the strike. Furthermore, had ALPA sought legal advice, it might have learned that interpreting its authority to call a strike without a vote could be deemed void against public policy.

Congress enacted the Labor-Management Reporting and Disclosure Act (LMRDA) to address concerns about union member rights, specifically their right to vote on union matters as established in the union's Constitution and By-laws. The LMRDA embodies a federal policy that promotes democratic practices within unions, recognizing the need for safeguards against potential corruption given the significant power unions hold under federal law. Archibald Cox, a key figure in the LMRDA's drafting, emphasized that merely replacing one form of tyranny with another—an autocratic union leadership—did not empower workers.

The document also addresses a specific labor dispute involving the Air Line Pilots Association (ALPA) and the timing of a strike's conclusion. Evidence suggests the strike may have ended on August 6, 1989. If ALPA was aware of this when it labeled certain pilots as "scabs," it could imply actual malice. ALPA contends that Bavis, who made statements on August 6, lacked the unilateral authority to end the strike, as such a decision required approval from the president of ALPA and a vote from the entire Management Executive Council (MEC). However, the concept of apparent authority is pivotal; despite lacking formal authority, Bavis was perceived as having the power to terminate the strike based on ALPA's communications. 

The analysis pivots on whether Bavis exercised this apparent authority, as he reportedly indicated that striking pilots should return to work. ALPA argues that his remarks were personal opinions within a broader discussion about the strike's future, citing a subsequent vote in which the majority chose to continue striking, thus questioning the actual conclusion of the strike.

Bavis asserted during a meeting that he was speaking as an individual pilot and stated he would not return to work unless all pilots did. He also claimed in an affidavit that he never instructed pilots to cross picket lines before November 22. In contrast, ALPA referenced an August 11 letter indicating that the strike was ongoing. The appellants contended that Bavis announced the strike's end on August 6, supported by seventeen affidavits from Group I pilots who believed ALPA terminated the strike based on Bavis' statements. They highlighted disciplinary charges against Bavis for allegedly advising pilots to abandon picketing, which contradicts ALPA's current stance that he was merely expressing a personal opinion. ALPA's newsletter indicated guidance for pilots to return to work, while the lack of an official recording of the meeting and the existence of unofficial, incomplete recordings created ambiguity. The circumstantial evidence suggests that if ALPA had wanted to clarify Bavis' comments, they would have done so given the context. Thus, a genuine issue of material fact exists regarding whether ALPA ended the strike on August 6, impacting the Group I pilots' claim for jury consideration on the scab allegation’s actual malice. ALPA claims it believed that the strike continued post-August 6, while appellants provide circumstantial evidence suggesting actual malice concerning Bavis' termination announcement.

The excerpt outlines several key points regarding the concept of malice in the context of labor disputes involving the Group I pilots and the Air Line Pilots Association (ALPA). Firstly, for pilots to be labeled as "scabs," they must be aware that their union is on strike; ignorance of the strike negates the label of intentional betrayal. If the Group I pilots believed that the strike ended on August 6, they would not qualify as scabs. If ALPA was aware of this belief among the pilots, it could be inferred that ALPA acted with malice by labeling them as such.

The text indicates that the majority finds ALPA's evidence credible, concluding no malice was present. However, it argues that the evidence presented creates a genuine issue of material fact regarding malice, which should be determined by a jury rather than the court. Specific evidence includes ALPA officials' awareness of statements made by Bavis, which suggested that the strike had ended, and ALPA's failure to consider the implications of those statements when publishing the scab list. This failure could indicate reckless disregard for the truth and potential malice, particularly if ALPA encouraged pilots to return to work.

Additionally, the excerpt discusses the requirement for proving injury in libel cases related to labor disputes. While Florida law presumes injury for certain types of libel, federal law mandates proof of injury in labor-related libel cases. The district court did not address the issue of injury when granting summary judgment, focusing instead on the truth of the scab allegation. The definition of injury is broad, encompassing damage to reputation and mental suffering.

The appellants have legally established that the 1989 Eastern Airlines strike was illegally called, rendering the scab allegation by ALPA false. There exists a genuine issue of material fact regarding whether the allegation was made with actual malice, as ALPA either knew or acted with reckless disregard for the legality of the strike. Even if a jury finds no malice, the Group I pilots maintain a libel claim, as evidence may show that ALPA published the scab list with knowledge of the strike's termination by Captain Jack Bavis on August 6, 1989.

In terms of injury, while the dissenting opinion does not take a definitive stance, it acknowledges that certain evidence is relevant to all appellants. For instance, an economist’s affidavit indicates that only three out of 2,241 scab pilots secured employment with major airlines, compared to 136 out of 1,146 non-listed pilots. The intent behind publishing the scab list—to cause harm—is highlighted, suggesting that being labeled a "scab" can deter workers from participating in strikes, thereby inflicting potential injury. Correspondence from ALPA to members who worked during the strike further reinforces this notion, indicating that being labeled a scab would severely impact future employment opportunities in the industry.