International Brotherhood of Electrical Workers, Local 1805 v. Mayo

Levine, J., delivered the opinion of the Court. In this case, we again examine the interplay between the Federal Constitution and the law of defamation, this time in the context of a labor dispute. This appeal is from a judgment for $1.00 compensatory damages and $5,000 punitive damages awarded appellee following a jury trial in the Circuit ⁴⁷⁶ Court for Anne Arundel County (Childs, J.). We granted certiorari after the Court of Special Appeals affirmed in IBEW, Local 1805 v. Mayo, 35 Md. App. 169 , 370 A. 2d 130 (1977).

We, too, now affirm. The events leading directly to this controversy commenced in October 1973. Appellee was then a supervisor of factory inspection — and was thus a member of management — at the Anne Arundel County plant of the Westinghouse Electric Corporation, by whom he had been employed for 23 years. As such, it was appellee’s responsibility to distribute weekly time cards each Friday afternoon to employees under his supervision, and then on the following Monday to review the completed cards for accuracy by comparing them with the attendance sheet which he had maintained during the prior week.

Among the 33 employees under appellee’s supervision was Wilton H. Sparks (Sparks), a member of Local 1805 (the union). On Friday October 19,1973, after being absent on the two preceding days, Sparks delivered to appellee his weekly time card on which he had designated Wednesday and Thursday as vacation days, by affixing opposite them the symbol “C,” even though he had neither sought nor received prior approval from appellee to take a scheduled vacation on those two days. On the following Monday, appellee informed Sparks that plant policy prohibited employees from taking unscheduled vacations and that it would be necessary for the time card to reflect voluntary absences on the 17th and 18th. Sparks stood adamant, however, and refused to change the card.

Following a discussion between shop stewards and management personnel, appellee was instructed by his supervisor to alter the time card so as to make it conform to company policy. Before doing so, however, appellee first notified Sparks and his shop steward, as well as the chief steward, of the proposed action. Then, appellee marked an “A,” denoting voluntary absence, over the “C” which Sparks had originally inserted opposite the 17th and 18th. Appellee’s action in changing' the time card escalated the dispute to the next grievance level under the collective bargaining agreement, which took the form of a written ⁴⁷⁷ complaint by Sparks’ shop steward charging appellee with “altering or falsifying company documents.” Specifically, the complaint alleged that under instructions from his supervisor, appellee “did falsify [the] time card by changing a C absence (vacation day) to an A absence for October 17th and 18th 1973, without employee W. Sparks permission.” At the direction of his supervisor, appellee replied to the complaint by denying that the change had constituted a “falsification,” claiming instead that he had merely fulfilled his responsibility in the circumstances.

While the various grievance procedures were being actively pursued, the November 1973 issue of “Intercom,” a newspaper published by the union for its 2,000 members, was distributed. The publication routinely reported pending grievances, which, in this instance, included the following statement that precipitated this litigation: “Supervisor H. Mayo falsified employee’s I.B.M. Weekly Time Card. Is a violation of Company plant rule #11. Submitted to the second step on 10-31-73, awaiting meeting.” Through his supervisors, appellee sought a retraction, but when these efforts proved futile, he filed a libel action against the union and various persons associated with the newspaper. 1 At the trial, appellee, corroborated by testimony from his wife and married daughter, stated: “I was highly upset about the article because my character was good I thought with the company and relations with the people and management, and I just felt like I had publicly been called a crook, and I was upset about it.” When asked how this affected him, he replied: “I was up tight, if that word is all right, and pretty nervous____” He also claimed to have suffered chest pains as a result of the ⁴⁷⁸ experience for which he consulted a heart specialist.

Since the episode, his “nerves have been worse” than they were prior to November 1973. He conceded, however, that he had sustained no damage to his reputation. In this Court, as it did in the Court of Special Appeals, appellant urges reversal on two grounds. First, it contends that the trial court erred by failing to instruct the jury that the union, as a matter of law, enjoyed a qualified privilege in reporting the grievance.

Secondly, appellant urges that appellee could not recover compensatory damages because he presented no proof of damage to his reputation; nor, absent a proper award of compensatory damages, could he recover punitive damages. (1) Among the defenses asserted by appellant at trial was that of qualified privilege — presumably on the theory that members of a labor union have a common interest in communications pertaining to their activities. See generally Restatement (Second) of Torts § 596, Comment e at 277 (1977); Annot., 60 A.L.R.3d 1041 (1974). Accordingly¿Jdie trial judge instructed the jury upon this defense in some detail, in the course of which he stated: “But you may have or you may find or you may not find that there was a qualified privilege for the union to say what it did in the Intercom, or you may find it went too far____[A]nd it’s up to you to determine whether or not this privilege was exceeded ....” (emphasis added).

The effect of the italicized language, appellant contends, was to permit the jury to decide not only whether the qualified privilege had been lost or defeated, but whether the privilege existed at all. The trial court erred, then, appellant argues, since, as we recently observed in Jacron Sales Co. v. Sindorf, 276 Md. 580, 600 , 350 A. 2d 688 (1976), the question whether a defamatory communication enjoys a qualified privilege is one of law, the jury’s role being limited to a determination of ⁴⁷⁹ whether the privilege has been forfeited. 2 Thus, by its instructions, the court erroneously permitted the jury to find that the defendant was not protected by a qualified privilege, rather than decide only whether the plaintiff had sustained the burden of overcoming the privilege by “prov[ing] that the defendant acted with a reckless disregard for the truth----” The argument advanced by appellant proceeds on the false assumption that appellee was only required to meet the negligence standard adopted by us in Jacron Sales Co. v. Sindorf, 276 Md. at 596-97 , in establishing his right to recover for the alleged defamation. There we held that reckless disregard as to truth or falsity is necessary to defeat a qualified privilege; proof of mere negligence will not suffice. Id. at 599-600 .

In short, appellant contends that it was prejudiced by the instruction permitting the jury to find no qualified privilege, since, to defeat such a privilege, appellee could properly have prevailed only by sustaining a more demanding burden than the negligence which he was ostensibly required to prove. In our view, however, it is unnecessary to decide whether the trial court erred in permitting the jury to determine the existence