Old Dominion Branch No. 496 v. Austin

418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745, 1974 U.S. LEXIS 87, 86 L.R.R.M. (BNA) 2740

• Court: Supreme Court of the United States
• Decided: June 25, 1974
• Docket: 72-1180
• Status: Published

Opinions

Mr. Justice Marshall

delivered the opinion of the Court.

This case involves three state libel judgments imposing liability of $165,000 on a labor union as a result of statements made in a union newsletter during a continuing organizational drive. The question presented is whether these libel judgments can be squared with the freedom of speech in labor disputes guaranteed under federal law.

I

Appellant Old Dominion Branch No. 496 is a local union affiliated with the appellant National Association of Letter Carriers, AFL-CIO. At all times relevant to this case,, the Branch was recognized by postal authorities as the exclusive local collective-bargaining representative of letter carriers in the Richmond, Virginia, area in accordance with § 10 of Executive Order No. 11491,¹ governing labor-management relations in the Executive Branch of the Federal Government. Appellees, Henry M. Austin, L. D. Brown, and Roy P. Ziegengeist, were letter carriers in Richmond who neither were members of the Union nor paid any dues or fees to the Union.²

Although it had already been selected as bargaining representative by a majority of the postal workers in the unit, the Branch in the spring of 1970 was engaged in an ongoing effort to organize the remainder of the letter carriers. As part of this campaign, the Branch periodically published in its monthly newsletter, the Carrier’s Corner, a list of those who had not yet joined the Union, under the heading “List of Scabs.” After his name twice appeared in the “List of Scabs,” appellee Austin complained to the Richmond Postmaster and the President of the Branch that the Union was trying to coerce him into joining. Austin said that he did not know what a scab was, but that he was going to sue the Union if he was called a scab again.

Several weeks later, the -June issue of the Carrier’s Corner was distributed to Branch members. Once again the newsletter contained a “List of Scabs,” including the names of the three appellees, as well as 12 others. Just above the list of names, the newsletter noted that “[s]ome co-workers are in a quandary as to what a scab is” and said “we submit the following.” There followed a well-known piece of trade union literature, generally-attributed to author Jack London, which purported to supply a definition:

“The Scab

“After God had finished the rattlesnake, the toad, and the vampire, He had some awful substance left with which He made a scab.

“A scab is a two-legged animal with a corkscrew soul, a water brain, a combination backbone of jelly and glue. Where others have hearts, he carries a tumor of rotten principles.

“When a scab comes down the street, men turn their backs and Angels weep in Heaven, and the Devil shuts the gates of hell to keep him out.

“No man (or woman) has a right to scab so long as there is a pool of water to drown his carcass in, or a rope long enough to hang his body with. Judas was a gentleman compared with a scab. For betraying his Master, he had character enough to hang himself. A scab has not.

“Esau sold his birthright for a mess of pottage. Judas sold his Savior for thirty pieces of silver. Benedict Arnold sold his country for a promise of a commission in the British Army. The scab sells his birthright, country, his wife, his children and his fellowmen for an unfulfilled promise from his employer.

“Esau was a traitor to himself; Judas was a traitor to his God; Benedict Arnold was a traitor to his country; a SCAB is a traitor to his God, his country, his family and his class.” App. 8-9. (Emphasis supplied.)

Appellees filed these defamation actions against the Branch and the National Association shortly after the June newsletter was published.³ Appellants sought dismissal of the actions on the ground that the publication was protected speech under the First Amendment and under federal labor law. The trial judge recognized that this case involved the “publications of a labor union which [were] relevant to and in the course of a campaign to organize federal employees.” App. 20. Nevertheless, he overruled the demurrers, interpreting this Court’s decision in Linn v. Plant Guard Workers, 383 U. S. 53 (1966), to permit application of state libel laws in such circumstances as long as the statements were made with “actual malice.” The j udge defined “actual malice” in his instructions to the jury as follows:

“The term ‘actual malice’ is that conduct which shows in fact that at the time the words were printed they were actuated by some sinister or corrupt motive such as hatred, personal spite, ill will, or desire to injure the plaintiff; or that the communication was made with such gross indifference and recklessness as to amount to a wanton or wilful disregard of the rights of the plaintiff.” App. 93.

The jury returned a verdict awarding each of the appel-lees $10,000 in compensatory damages and $45,000 in punitive damages.⁴

The Supreme Court of Virginia affirmed. 213 Va. 377, 192 S. E. 2d 737 (1972). In view of appellants’ substantial claims that their statements in the newsletter were protected expression under the First Amendment and federal labor law, and that the state courts had erred in interpreting the pre-emptive effect of Linn, we noted probable jurisdiction and set this case for oral argument with No. 72-617, Oertz v. Robert Welch, Inc., post, p. 323. 412 U. S. 917 (1973). We reverse.

II

As noted, this case calls upon us to determine the extent to which state libel laws may be applied to penalize statements made in the course of labor disputes without undermining the freedom of speech which has long been a basic tenet of federal labor policy. We do not approach this problem, however, with a clean slate. The Court has already performed the difficult task of reconciling the competing state and federal interests involved in this area, and established the framework for our analysis here, in Linn v. Plant Guard Workers, supra.

In Linn, an assistant general manager of Pinkerton’s Detective Agency brought suit under state libel laws against the Plant Guard Workers in a diversity action in federal court. Linn alleged that statements made in a union leaflet during a campaign to organize the company’s employees, which charged him with “lying” to the employees and “robbing” them of pay increases, were false and defamatory. The District Court dismissed the complaint on the ground that the National Labor Relations Board had exclusive jurisdiction over the subject matter of the complaint, finding that the union’s conduct would arguably be an unfair labor practice under § 8 (b) of the National Labor Relations Act, as amended, 29 U. S. C. § 158 (b), and that the Court’s decision in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), therefore compelled dismissal on pre-emption grounds. The Court of Appeals affirmed.

A bare majority of this Court disagreed, however, and held that the NLRA did not completely pre-empt the application of state laws to libels published during labor disputes. The Court found that the exercise of state jurisdiction over such defamation actions would be a “merely peripheral concern” of the federal labor laws, within the meaning of Garmon, as long as appropriate substantive limitations were imposed to insure that the freedom of speech guaranteed by federal law was protected. Further, the Court recognized an “ 'overriding state interest’ in protecting [state] residents from malicious libels.” 383 U. S., at 61. Mr. Justice Clark, writing the opinion for the Court, also pointed out that application of state law to libels occurring during labor disputes would not significantly interfere with the NLRB’s role in considering arguable contemporaneous violations of the Act. As he observed, the Board has different substantive interests from state libel law, being concerned with the coercive or misleading nature of the statements, rather than their defamatory quality. And the NLRA and state laws provide quite different remedies: only state law can provide damages to compensate the libel victim; only the NLRB can order a new representation election if the libel is found to have substantially affected the outcome of an election.

On the other hand, the Court recognized the danger that unrestricted libel actions under state law could easily interfere with federal labor policy. The Court observed:

“Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, counter-charges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language.” 383 U. S., at 58.

This freewheeling use of the written and spoken word, we found, has been expressly fostered by Congress and approved by the NLRB. Thus, Mr. Justice Clark acknowledged that there was “a congressional intent to encourage free debate on issues dividing labor and management,” id., at 62, and noted that “the Board has given frequent consideration to the type of statements circulated during labor controversies, and ... it has allowed wide latitude to the competing parties.” Id., at 60.

The Court therefore found it necessary to impose substantive restrictions on the state libel laws to be applied to defamatory statements in labor disputes in order to prevent “unwarranted intrusion upon free discussion envisioned by the Act.” Id., at 65. The Court looked to the NLRB’s decisions, and found that “although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false.” Id., at 61. The Court therefore found it appropriate to adopt by analogy the standards of New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Accordingly, we held that libel actions under state law were pre-empted by the federal labor laws to the extent that the State sought to make actionable defamatory statements in labor disputes which were published without knowledge of their falsity or reckless disregard for the truth.

Ill

In this case, of course, the relevant federal law is Executive Order No. 11491 rather than the NLRA. Nevertheless, we think that the same federal policies favoring uninhibited, robust, and wide-open debate in labor disputes are applicable here, and that the same accommodation of conflicting federal and state interests necessarily follows.⁵

The basic provisions of the Executive Order establish a labor-management relations system for federal employment which is remarkably similar to the scheme of the National Labor Relations Act.⁶ Although several significant adjustments have been made to reflect the different structure and responsibilities of the governmental employer,⁷ it is apparent that the Order adopted in large part the provisions and policies of the NLRA as its model.⁸ Indeed, one of the primary purposes of the Executive Order was to “substantially strengthen the Federal labor relations system by bringing it more into line with practices in the private sector of the economy.” 5 Presidential Documents 1508 (Oct. 29, 1969) (announcement of the signing of Exec. Order No. 11491). Accordingly, while decisions under the NLRA may not be binding precedent under the Executive Order, the. Assistant Secretary of Labor charged with administration of the Order has held that his decisions will “take into account the experience gained in the private sector under the Labor-Management Relations Act.” Charleston Naval Shipyard, Case Nos. 40-1940 (CA), 40-1950 (CA), A/SLMR No. 1, p. 3 (Nov. 3,1970).

In light of this basic purpose, we see nothing in the Executive Order which indicates that it intended to restrict in any way the robust debate which has been protected under the NLRA. Such evidence as is available, rather, demonstrates that the same tolerance for union speech which has long characterized our labor relations in the private sector has been carried over under the Executive Order. For example, one of the Regional Administrators under the Executive Order program has stated, in the context of union organizing campaigns:

“It is a cliché by now but, nonetheless, an embedded policy in labor relations that electioneering or campaigning has a broad tolerance. We do not encourage, nor do we prohibit, the exaggeration, the dissemination of half-truth or accusation. In sum, we leave it to the employee to decide.” ⁹

And the Assistant Secretary has held that agency censorship of union materials, even if only to delete “slanderous” or “inflammatory” material, is unlawful interference with employee rights protected under the Order and an unfair labor practice under § 19 (a)(1). Los Angeles Air Route Traffic Control Center, Case No. 72-CA-3014 (26), A/SLMR No. 283, App. 4 (June 30, 1973) (summarized in BNA Govt. Empl. Rel. Rep. No. 514, July 30, 1973, p. A-10).

We recognize that the Executive Order does not contain any provision corresponding to § 8 (c) of the NLRA,¹⁰ relied on in part by the Court in Linn. But the Court recognized that this section was primarily intended “to prevent the Board from attributing anti-union motive to an employer on the basis of his past statements.” 383 U. S., at 62-63, n. 5 (emphasis added). A provision corresponding to § 8 (c) was apparently thought unnecessary in the Executive Order because it directs the Government, as employer, to adopt a position of neutrality concerning unionization of its employees.¹¹ “Government officials do not mount Vote no’ campaigns.” Hampton, Federal Labor-Management Relations: A Program in Evolution, 21 Cath. U. L. Rev. 493, 502 (1972).

The primary source of protection for union freedom of speech under the NLRA, however, particularly in an organizational context, is the guarantee in § 7 of the Act of the employees’ rights “to form, join, or assist labor organizations.” ¹²

“Basic to the right guaranteed to employees in § 7 to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection. Indeed, even before the Norris-LaGuardia Act and the Wagner Act, this Court recognized a right in unions to ‘use all lawful propaganda to enlarge their membership.’ ” NLRB v. Drivers Local 639, 362 U. S. 274, 279 (1960) (citations omitted).

Vigorous exercise of this right “to persuade other employees to join” must not be stifled by the threat of liability for the overenthusiastic use of rhetoric or the innocent mistake of fact. Thus, the Board has concluded that statements of fact or opinion relevant to a union organizing campaign are protected by § 7, even if they are defamatory and prove to be erroneous, unless made with knowledege of their falsity. See, e. g., Atlantic Towing Co., 75 N. L. R. B. 1169, 1171-1173 (1948). The Court in Linn recognized the importance of this § 7 protection, in words quite pertinent to this case:

“Likewise, in a number of cases, the Board has concluded that epithets such as ‘scab/ 'unfair,’ and 'liar’ are commonplace in these struggles and not so indefensible as to remove them from the protection of § 7, even though the statements are erroneous and defame one of the parties to the dispute.” 383 U. S., at 60-61.

These considerations are equally applicable under the Executive Order. Section 1 of the Order guarantees federal employees these same rights.¹³

Section 7 of the NLRA and § 1 of the Executive Order also dispose of appellees’ suggestion that no “labor dispute” within the meaning of Linn is presented on the facts of this case. It is true, as appellees point out, that there was no dispute between labor and management involved here, and that the union's organizing efforts were neither during the course of a representation election campaign nor directed toward achieving recognition. But whether Linn’s partial, pre-emption of state libel remedies is applicable obviously cannot depend on some abstract notion of what constitutes a “labor dispute” ; rather, application of Linn must turn on whether the defamatory publication is made in a context where the policies of the federal labor laws leading to protection for freedom of speech are significantly implicated.

As noted, one of the primary reasons for the law'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 Linn. We see no reason to limit this protection to statements made during representation election campaigns. The protection of § 7 and § 1 is much broader. Indeed, Linn itself involved union, organizing activity outside the election campaign context. We similarly reject any distinction between union organizing efforts leading to recognition and post-recognition organizing activity. 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 — a particularly substantial union concern where union security agreements are not permitted, as they are not here, see n. 2, supra — these organizing efforts are equally entitled to the protection of § 7 and § l.¹⁴

IV

The courts below did not question the applicability of Linn to this case. Instead, both courts believed that Linn required only that the jury be instructed that it must find the defamatory statements to have been made with malice before it could impose liability. And both courts thought that instructions which defined malice in the common-law sense — as “hatred, personal spite, ill will, or desire to injure” — were adequate under Linn.

This reflects a fundamental misunderstanding of the Court’s holding in Linn. The Linn Court explicitly adopted the standards of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and the heart of the New York Times test is the requirement that recovery can be permitted only if the defamatory publication was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. The adoption in Linn of the reckless-or-knowing falsehood test was reiterated time and again in the Court’s opinion. See 383 U. S., at 61, 63, 65.

Of course, the Court also said that recovery would be permitted if the defamatory statements were shown to have been made with malice. But the Court was obviously using “malice” in the special sense it was used in New York Times — as a shorthand expression of the “knowledge of falsity or reckless disregard of the truth” standard. See New York Times Co. v. Sullivan, supra, at 279-280. Instructions which permit a jury to impose liability on the basis of the defendant’s hatred, spite, ill will, or desire to injure are “clearly impermissible.” Beckley Newspapers Corp. v. Hanks, 389 U. S. 81, 82 (1967). “[I] 11 will toward the plaintiff, or bad motives, are not elements of the New York Times standard.” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 52 n. 18 (1971) (opinion of Brennan, J.). Accord, Garrison v. Louisiana, 379 U. S. 64, 73-74, 77-79 (1964); Henry v. Collins, 380 U. S. 356 (1965); Rosenblatt v. Baer, 383 U. S. 75, 84 (1966); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6, 9-11 (1970). It is therefore clear that the libel judgments in this case must be reversed because of the court’s erroneous instructions.

This, however, cannot be the end of our inquiry. The Court has often recognized that in cases involving free expression we have the obligation, not only to formulate principles capable of general application, but also to review the facts to insure that the speech involved is not protected under federal law. New York Times Co. v. Sullivan, supra, at 284 — 285; Pickering v. Board of Education, 391 U. S. 563, 574-575 (1968); Greenbelt Cooperative Publishing Assn. v. Bresler, supra, at 11. “We must ‘make an independent examination of the whole record/ Edwards v. South Carolina, 372 U. S. 229, 235, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times Co. v. Sullivan, supra, at 285.

While this duty has been most' often recognized in the context of claims that the expression involved was entitled to First Amendment protection, the same obligation exists in cases involving speech claimed to be protected under the federal labor laws. This obligation, derived from the supremacy of federal labor law over inconsistent state regulation, Hill v. Florida ex rel. Watson, 325 U. S. 538 (1945); Teamsters Local 2¿¡. v. Oliver, 358 U. S. 283, 295-296 (1959), requires us to determine whether any state libel award arising out of the publication of the union newsletter involved here would be inconsistent with the protection for freedom of speech in labor disputes recognized in Linn.

It should be clear that the newsletter’s use of the epithet “scab” was protected under federal law and cannot be the basis of a state libel judgment. Rather than being a reckless or knowing falsehood, naming the appel-lees as scabs was literally and factually true. One of the generally accepted definitions of “scab” is “one who refuses to join a union,” Webster's Third New International Dictionary (unabridged ed. 1961), and it is undisputed that the appellees had in fact refused to join the Branch. To be sure, the word is most often used as an insult or epithet. But Linn recognized that federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point. Indeed, the Court observed that use of this particular epithet is common parlance in labor disputes and has specifically been held to be entitled to the protection of § 7 of the NLRA. 383 U. S., at 60-61.

Appellees nonetheless argue that the publication here may be actionable under state law, basing their claim on the newsletter’s publication of Jack London’s “definition of a scab.” Appellees contend that this can be read to charge them with having “rotten principles,” with lacking “character,” and with being “traitor[s]”; that these charges are untrue; and that appellants knew they were untrue. The Supreme Court of Virginia upheld the damages awards here on the basis of these charges. 213 Va., at 384, 192 S. E. 2d, at 742.

We cannot agree. We believe that publication of Jack London’s rhetoric is equally entitled to the protection of the federal labor laws.¹⁵ The sine qua non of recovery for defamation in a labor dispute under Linn is the existence of falsehood. Mr. Justice Clark put it quite bluntly: “the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth.” 383 U. S., at 63. Before the test of reckless or knowing falsjty can be met, there must be a false statement of fact. Gertz v. Robert Welch, Inc., post, at 339-340. But, in our view, the only factual statement in the disputed publication is the claim that appellees were scabs, that is, that they had refused to join the union.

The definition’s use of words like “traitor” cannot be construed as representations of fact. As the Court said long before Linn, in reversing a state court injunction of union picketing, “to use loose language or undefined slogans that are part of the conventional give- and-take in our economic and political controversies— like 'unfair’ or 'fascist’ — is not to falsify facts.” Cafeteria Employees Local 802 v. Angelos, 320 U. S. 293, 295 (1943). Such words were obviously used here in a loose, figurative sense to demonstrate the union’s strong disagreement with the views of those workers who oppose unionization. Expression of such an opinion, even in the most pejorative terms, is protected under federal labor law. Here, too, “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., post, at 339-340.

Appellees’ claim is similar to that rejected by the Court recently in Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6 (1970). There, petitioners had characterized the position of the respondent, a public figure, in certain negotiations as “blackmail,” and he had recovered damages for libel on the theory that petitioners knew that he had committed no such criminal offense. The Court reversed, holding that this use of the word “blackmail” could not be the basis of a libel judgment under the New York Times standard. Me. Justice Stewart, writing for the Court, reasoned:

“It is simply impossible to believe that a reader who reached the word ‘blackmail’ in either article would not have understood exactly what was meant: it was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.” 398 U. S., at 14 (footnote omitted).

It is similarly impossible to believe that any reader of the Carrier’s Corner would have understood the newsletter to be charging the appellees with committing the criminal offense of treason.¹⁶ As in Bresler, Jack London’s “definition of a scab” is merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join. The Court in Linn recognized that such exaggerated rhetoric was commonplace in labor disputes and protected by federal law. Indeed, we note that the NLRB has held that the use of this very “definition of a scab” is permissible under federal law. Cambria Clay Products Co., 106 N. L. R. B. 267, 273 (1953), enforced in pertinent part, 215 F. 2d 48 (CA6 1954). It has become a familiar piece of trade union literature; according to undisputed testimony in this case, it has been published countless times in union publications over the last- 30 years or more. Permitting state libel judgments based on publication of this piece of literature would be plainly inconsistent with the union’s justifiable reliance on the protection of federal law.

This is not to say that there might not be situations where the use of this writing or other similar .rhetoric in a labor dispute could be actionable, particularly if some of its words were taken out of context and used in such a way as to convey a false representation of fact. See Greenbelt Cooperative Publishing Assn. v. Bresler, supra, at 13. But in the context of this case, no such factual representation can reasonably be inferred, and the publication is protected under the federal labor laws.¹⁷ Accordingly, the judgments appealed from must be

Reversed.

1 34 Fed. Reg. 17605 (1969), 3 CFR 861 (1966-1970 Compilation), as amended, 3 CFR 254 (1974). The Executive Order was promulgated on October 29, 1969, and became effective on January 1, 1970. It remains in effect with respect to most employees in the Executive Branch today. Postal employees, however, are no longer covered by the Executive Order. The Postal Reorganization Act of 1970, 84 Stat. 719, converted the cabinet-level Post Office Department into the United States Postal Service, an “independent establishment of the executive branch,” 39 U. S. C. § 201. As part of this reorganization, labor-management relations in the Postal Service were largely placed under the regulation of the National Labor Relations Act and the NLRB, effective July 1, 1971. See 39 U. S. C. §§ 1201-1209. While the Branch apparently remains the exclusive bargaining representative for letter carriers in Richmond under the Postal Reorganization Act, this case arose during the brief period when the Executive Order was controlling.

2 Section 12 (c) of the Executive Order provides:

“[N]othing in the agreement [between an agency and a labor organization] shall require an employee to become or to remain a member of a labor organization, or to pay money to the organization . . . .”

The Postal Reorganization Act continues this prohibition of union security agreements, 39 U. S. C. § 1209 (c). The NLRA., of course, permits certain union security agreements, § 8 (a) (3), 61 Stat. 140, 29 U. S. C. § 158 (a)(3), except insofar as they may violate state law, § 14 (b), 29 U. S. C. § 164 (b). See Retail Clerks v. Schermer-horn, 375 U. S. 96 (1963).

3 These actions are actually based on Virginia’s “insulting words” statute, Va. Code Ann. § 8-630 (1957), which provides:

“All words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace shall be actionable.”

However, the Virginia courts have held that “[a]n action for insulting words under Code, § 8-630 is treated precisely as an action for slander or libel, for words actionable per se” with one exception not relevant here. Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 6, 82 S. E. 2d 588, 591 (1954). See opinion below in 213 Va. 377, 381, 192 S. E. 2d 737, 740 (1972).

4 At least one suit brought by one of the other 12 letter carriers whose names were listed in the June newsletter has been held in abeyance pending the outcome of this appeal. The potential damages liability growing out of this publication is thus greater even than the $165,000 which has already been awarded,

5 The Executive Order is plainly a reasonable exercise of the President’s responsibility for the efficient operation of the Executive Branch. American Federation of Government Employees v. Hampton, 77 L. R. R. M. 2977 (DC), aff’d sub nom. Wolkomir v. Federal Labor Relations Council, 79 L. R. R. M. 2634 (CADC 1971), cert. denied, 405 U. S. 920 (1972); Manhattan-Bronx Postal Union v. Gronouski, 121 U. S. App. D. C. 321, 350 F. 2d 451 (1965), cert. denied, 382 U. S. 978 (1966); cf. CSC v. Letter Carriers, 413 U. S. 548, 555 (1973). Moreover, the Executive Order finds express statutory authorization in 5 U. S. C. § 7301, which provides that “[t]he President may prescribe regulations for the conduct of employees in the executive branch.” In view of the substantial federal interests in effective management of the business of the National Government and exclusive control over the conduct of federal employees, and this congressional authorization, we have no difficulty concluding that the Executive Order is valid and may create rights protected against inconsistent state laws through the Supremacy Clause. See United States v. Pink, 315 U. S. 203, 230-232 (1942) ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635-637 (1952) (Jackson, J., concurring); Farkas v. Texas Instruments, Inc., 375 F. 2d 629, 632 (CA5), cert. denied, 389 U. S. 977 (1967); Farmer v. Philadelphia Electric Co., 329 F. 2d 3, 8 (CA3 1964).

6 Section 1 of the Order grants federal employees “the right, freely and without fear of penalty or reprisal, to form, join, and assist a labor organization,” as well as “to refrain from any such activity,” and provides that “each employee shall be protected in the exercise of this right,” much as employees in the private sector are protected by § 7 of the NLRA. Sections 19 (a) and 19 (b) of the Order define unfair labor practices of agency management and unions, respectively, which are largely taken from the prohibitions of §§ 8 (a) and 8 (b) of the NLRA. And § 10 of the Executive Order establishes a system of exclusive recognition of labor organizations chosen by a majority of the employees in an appropriate unit through representation elections by secret ballot, as under § 9 (c) (1) of the NLRA.

Primary responsibility for administration of this system is given to the Assistant Secretary of Labor for Labor-Management Relations, who largely performs the role of the NLRB in the private sector. Under § 6 (a) of the Order, he is empowered to make determinations of appropriate collective-bargaining units, to supervise the conduct of representation elections, and to decide complaints alleging unfair labor practices. Upon a finding of a violation of the Order, § 6 (b) empowers the Assistant Secretary to order Government agencies or unions to cease and desist from violations of the Order, and to take appropriate affirmative action. Appeals from decisions of the Assistant Secretary are heard by the Federal Labor Relations Council, established under § 4 of the Order, which is also given a significant policymaking function.

7 Most notable among the departures from the NLRA are the prohibition of strikes and picketing in § 19 (b) (4) of the Executive Order and the limitation of subjects of bargaining in § 11 (b). See generally Hampton, Federal Labor-Management Relations: A Program in Evolution, 21 Cath. U. L. Rev. 493 (1972).

8 See Naumoff, Ground Rules for Recognition under Executive Order 11491, 22 Lab. L. J. 100 (1970); cf. Hart, Government Labor’s New Frontiers through Presidential Directive, 48 Va. L. Rev. 898, 904-905 (1962) (discussing Exec. Order No. 10988, predecessor of the present Order).

9 Naumoff, swpra, n. 8, at 103. Compare the similar language of the Board in Stewart-Warner Corp., 102 N. L. R. B. 1153, 1158 (1953), quoted in Linn v. Plant Guard Workers, 383 U. S. 53, 60 (1966).

10 Section 8 (c) provides:

“The expressing of any views, argument, or opinion, or the dissemination thereof, . . . shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefit.”

11 This policy of agency neutrality is derived from two parts of the Executive Order. The preamble of the Order recites that “the well-being of employees and efficient administration of the Government are benefited by providing employees an opportunity to participate in the formulation and implementation of personnel policies and practices affecting the conditions of their employment.” And § 1 (a) directs the head of each agency to

“take the action required to assure that employees in the agency are apprised of their rights under this section and that no interference, restraint, coercion, or discrimination is practiced within his agency to encourage or discourage membership in a labor organization.”

See Hampton, supra, n. 7, at 501-502.

12 In other contexts, other provisions of the NLRA may be sources of protection for union freedom of speech. For example, one such source would be the system of representation elections by secret ballot established by §9 (c)(1) of the Act. Wide latitude for what is written and said in election campaigns is necessary to insure the free exchange of information and opinions, and thus to promote the informed choice by the employees needed to make the system work fairly and effectively. The same policy is applicable under the Executive Order, which establishes in § 10 a similar system of representation elections for federal employees.

13 Section 1 of the Executive Order does not grant federal employees the right, guaranteed by § 7 of the NLRA for employees in the private sector, "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The right to attempt to persuade others to join the union, however, is derived from the rights to form, join, and assist a union, as well as from the right to engage in concerted activities. The absence of mention of a right to engage in concerted activities is obviously no more than a reflection of the fact that the Order does not permit federal employee unions to engage in strikes or picketing. The prohibition of picketing and the lack of protection for concerted activities might be thought to indicate an intention in the Executive Order to regulate the location or form of employee speech to a somewhat greater extent than under the NLRA, but we do not perceive any intention to curtail in any way the content of union speech.

14 Appellees argue that,' rather than being entitled to the protection of Linn, the union’s organizing efforts here were unlawful attempts to “coerce” them into joining the union, in violation of § 19 (b) (1) of the Order. But we would expect § 19 (b) (1) to be interpreted in light of the construction the Court has given the parallel provision of the NLRA, § 8 (b) (1) (A). In NLRB v. Drivers Local 639, 362 U. S. 274 (1960), the Court held that § 8 (b) (1) (A) was “a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof.” Id., at 290. Mr. Justice Brennan emphasized that there was no intention to restrict the use by 'Unions of methods of peaceful persuasion, quoting Senator Taft’s remarks during the debate on the Taft-Hartley Act:

“It seems to me very clear that so long as a union-organizing drive is conducted by persuasion, by propaganda, so long as it has every legitimate purpose, the Board cannot in any way interfere with it. . ..

“The Board may say, 'You can persuade them; you can put up signs; you can conduct any form of propaganda you want to in order to persuade them, but you cannot, by threat of force or threat of economic reprisal, prevent them from exercising their right to work.’ ” Id., at 287-288.

It is true that the Executive Order provides that a union may not “interfere with” an employee in the exercise of his right to refrain from joining the union, as well as incorporating the wording of the NLRA making it unlawful to “restrain” or “coerce” an employee. The Court in Drivers Local 6S9 pointed out, however, that even the words “interfere with,” which originally appeared in a draft of the Taft-Hartley Act, were intended to have a “limited application” and to reach “reprehensible practices” like violence and threats of loss of employment, bu1 not methods of peaceful persuasion. Id., at 286. It seems likely that the Executive Order was similarly not intended to limit union propaganda or prohibit any other method of peaceful persuasion.

In any event, appellees’ contention is properly addressed to the Assistant Secretary in the first instance, through an unfair labor practice complaint, and not to this Court. Even if appellees should ultimately prove to be correct, Linn is still applicable here, and state libel remedies are pre-empted unless appellees can show that the publication was knowingly false or made with reckless disregard for the truth.

15 In view of our conclusion that the publication here was protected under the federal labor laws, we have no occasion to consider the First Amendment arguments advanced by appellants.

16 On the contrary, it is apparent from the record that the basis for the libel action in this case was the use of the epithet “scab” rather than the claimed charge of treason. It was the publication of the “List of Scabs” which disturbed the appellees, and which moved appellee Austin to complain prior to the June publication at issue and to threaten to sue if he was called a scab again. Moreover, it appears that the only asserted damage to appellees followed from the publication of the fact that they were “scabs.” Appellees testified only that their coworkers and others became hostile to them, referring to them as the “scabs” the union was talking about, and that this made them tense and nervous and caused headaches. There is no evidence that anyone took literally the use of the word “traitor” or that appellees were in any way concerned about or affected by this charge.

Nor can it be claimed that the jury’s verdict is itself some indication that the charge of “traitor” was construed as a defamatory representation of fact. There is certainly nothing in the trial court’s instructions which would suggest that the newsletter’s use of “scab” was not the basis for the jury’s verdict. The court did not instruct the jury that the use of "scab” could not be the basis for imposing liability. The court did not even instruct the jury that a true statement of fact could not be the foundation for liability. Indeed, the trial court’s instruction that “insults” made with “ill will” were sufficient to impose liability fairly invited the jury to base its verdict on the newsletter’s use of “scab.”

17 Since we find that any libel award on the basis of this publication would be inconsistent with the protection of federal law, we need not rule on appellants’ alternative argument that the damages awarded here were excessive. We think it important again to point out, however, that “in view of the propensity of juries to award excessive damages for defamation, the availability of libel actions may pose a threat to the stability of labor unions and smaller employers.” Linn, 383 U. S., at 64. It is for this reason that the Court in Linn held that “[i]f the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial.” Id., at 65-66 (emphasis added).