International Brotherhood of Electrical Workers, Local 1805 v. Mayo

Powers, J., delivered the opinion of the Court. Changes made by Henry C. Mayo, an Inspection Supervisor at a plant of Westinghouse Electric Corporation in Anne Arundel County, on the weekly time card of an employee under his supervision, constituted the first of a series of events which resulted in this appeal. It is something of an anomaly that the merits of the original dispute — whether the supervisor’s action was right or wrong — have no bearing on the issues in this case. It is necessary, however, that we set out the facts as they occurred, in order to understand, in their proper perspective, the issues which later developed.

On Saturday, 20 October 1973, W. A. Sparks, an Inspector employed at Westinghouse, turned in his weekly time card to Mayo, his supervisor. It was the supervisor’s duty to verify that hours worked and absent time were properly reported, sign his approval, and forward the time card to payroll. The card turned in by Sparks showed that he worked 8.0 hours on Monday, Tuesday, Friday and Saturday of that week. By using the Absence Symbol “C”, Sparks classified his absences on Wednesday and Thursday as vacation days.

Mayo gave the card back to Sparks, telling him to correct it, because Wednesday and Thursday had not been authorized as vacation time, and must be classified as voluntary absences. * 1 Sparks returned the time card, unchanged. Mayo ¹⁷¹ consulted his superior, John Brothers, Manager of Quality Control. Brothers instructed Mayo to change the Absence Symbol from “C” to “A”, indicating voluntary absence. Mayo made the changes, and then approved and forwarded the time card.

Sparks, a member of International Brotherhood of Electrical Workers, Local 1805, AFL-CIO, consulted Lenora Brach, his union steward. She presented two Grievances, signed by Sparks as the aggrieved employee and by her as steward. The descriptions of the grievances were as follows: “Grievance Serial § 3680 I Management did violate company rule number 11, altering or falsifying company documents. On October 24th 1973 Mr. H. Mayo foreman of Inspection on second shift under his Superior Mr. J. Brothers instructions did falsify employee W. Sparks IBM weekly time card by changing a C absence (vacation day) to an A absence for October 17th and 18th 1973, without employee W. Sparks permission.

The Union has had several cases where employees have falsified company documents and were suspended. The Union contends that Management has no right in violating company rule number 11 than does the employees, and that W. Sparks IBM weekly time card be changed back to a C absence instead of an A absence.” “Grievance Serial § 36811 Management is in violation of Article Nine Section Four (e), in not paying W. Sparks time and one half for working Saturday October 20, 1973. ¹⁷² Management changed his weekly IBM card from C (vacation day) to A (absent day). This the Union will not tolerate. W. Sparks time card must be changed to show a C absence (vacation day) for October 17th and 18th instead of an A absence, so he will be qualified for overtime pay for eight hours on Saturday the 20th of October.” After they were filed, the grievances received consideration at various steps or levels as prescribed in the established grievance procedure.

In the November 1973 issue of “Intercom”, a newspaper owned and published by Local 1805, the following were among a number of items published under the heading, “Grievance Report”: “368II — L. Brach 2nd Shift 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.” “36801 — L. Brach 2nd Shift Management violated Art. IX, Section 4 (e) in not paying aggrieved time and a half for ■ Saturday, 10-20-73. His weekly I.B.M. time card was changed from vacation (C) to absent (Ai days.

Submitted to the second step 10-31-73, awaiting meeting.” We set forth both grievances, and both news items, not only because of the significance as an issue in the case of the difference between the grievance as actually stated and the news report of the grievance, but because it is apparent that the news report erroneously switched the two grievance numbers. This transposition error is of no importance, but we take note of it to avoid possible confusion. There was evidence that at a December 1973 meeting between management officials and union officials, for the so-called third step of the grievance procedure, the management officials explained that the information in the ¹⁷³ “Intercom” “had terribly upset Mr. Mayo”, and asked if it could in some way be retracted or changed. The request was made to Mr. Bailz Elza, vice-president of Local 1805, an assistant editor of “Intercom”.

He was also asked to consider rewriting the grievance “so that we could settle the issue, the real issue”, and it would not be printed in such a manner in the “Intercom”. He did not agree. The next issue of “Intercom”, April 1974, printed the item: “36811 — L. Brach 2nd Shift Supervisor falsified employee’s I.B.M. Weekly Time Card. In violation of Company plant rule #11.

Requested 4th step 3-14-74.” In October 1974 Mayo filed a suit in the Circuit Court for Anne Arundel County against International Brotherhood of Electrical Workers, Local 1805, AFL-CIO and ten individuals, all associated with Local 1805 and some also associated with the newspaper Intercom. The declaration contained two counts. In the first Mayo alleged that all of the defendants published a defamatory statement about him as follows: “Page Two — Intercom — November 1973 Grievance Report 36811 — L. Brach 2nd Shift 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.” In the second count he incorporated the allegations of the first count, and alleged that the defendants acted jointly and in concert with one another. All defendants joined in a single responsive pleading entitled “Answer To Declaration”, in which they pleaded “That they did not commit the wrongs alleged.” The case was tried before a jury and Judge E. Mackall Childs on 25 and 26 September 1975. At the close of the ¹⁷⁴ plaintiff’s evidence the defendants moved for a directed verdict. The motion was granted as to the second, or conspiracy, count, and it was also granted as to all of the individual defendants, leaving only the claim against Local 1805, as set forth in the first count of the declaration.

Upon completion of the defendant’s evidence, the court instructed the jury, objections to the instructions were noted, and counsel made their arguments to the jury. A verdict was returned in favor of Mayo against Local 1805 for compensatory damages of $1.00 and punitive damages of $5,000.00. A motion for judgment n.o.v. was made and denied. Judgment was entered on the verdict.

This appeal was taken. Appellant presents these questions: 1. Did Appellant enjoy a qualified privilege as a matter of law to publish the alleged libel? 2. Was there competent evidence to support an award of compensatory damages? 3.

Does an award of $1.00 in compensatory damage support an award of $5,000 punitive damages? 4. Did the Court commit reversible error in instructing the jury that it could infer that Appellant sought to have Appellee discharged? Qualified Privilege Appellant argues that the court erred in failing to instruct the jury that it had a qualified privilege as a matter of law to publish the alleged libel. The argument is one of semantics, not of substance.

It would be unnecessarily repetitive for us to undertake an extensive discussion of the qualified, or conditional privilege, as it is recognized in the law of defamation. That privilege was one of several aspects of libel and slander which were reexamined by the Court of Appeals, in the light of Gertz v. Robert Welch, Inc., 418 U. S. 323 , 94 S. Ct. 2997 , 41 L.Ed.2d 789 (1974), in its opinion in Jacron Sales Co. v. Sindorf, 276 Md. 580 , 350 A. 2d 688 (1976). After having ¹⁷⁵ adopted negligence as the standard to be applied in Maryland in cases of purely private defamation, 276 Md. at 596 , the Court said, at 598: “It has been suggested that adoption of the negligence standard of fault in defamation cases would have the practical effect of rendering obsolete the common law defense of conditional privilege. See, e.g., Anderson, supra, 53 Texas L. Rev. at 443, n. 97; Frakt, supra, 6 Rutgers-Camden L. J. at 496-97.

The reasoning which underlies this position is that many jurisdictions follow the rule that one of the means by which a conditional privilege may be defeated is by proving negligence on the part of the defendant. F. Harper & F. James, supra, § 5.27; W. Prosser, supra, § 115.” The Court rejected that reasoning. It said, at 598-99: “In Maryland, however, we have never held that negligence is among the grounds on which the conditional privilege may be forfeited. “The Maryland cases on abuse of conditional privilege are couched in terms of ‘express malice’ or ‘actual malice.’ ” “Express or actual malice represents something-more than conduct that is merely negligent.” Referring to its definition of malice found in Stevenson v. Baltimore Club, 250 Md. 482 , 243 A. 2d 533 (1968), and Orrison v. Vance, 262 Md. 285 , 277 A. 2d 573 (1971), the Court said, in Jacron, at 600: “* * * thus the reckless disregard standard now appears to be firmly established in Maryland as a test, albeit not the exclusive test, for abuse of a conditional privilege. This being a higher standard than negligence, we retain the common law conditional privilege in Maryland which, in a given ¹⁷⁶ case may suffice to avoid liability even though the Gertz standard regarding falsity and defamation is met by the plaintiff.” “While the question of whether a defamatory communication enjoys a conditional privilege is one of law for the court, whether it has been forfeited by malice is usually a question for the jury.” The net result of what the Court said in Jacron about the common law conditional privilege in Maryland was that the law remained the same.

The respective functions of the court and jury could be paraphrased thus: In a libel or slander trial, the judge decides whether a defendant has the privilege when he walks into the courtroom; the jury decides whether he still has it when he walks out. The fallacy in appellant’s argument is that it contends that it “enjoyed a qualified privilege to print the item in question, even if it were libelous”, and that the judge should have told the jury that this was so as a