Scabs Can Run But They Can’t Hide

802 Legal Corner

Volume CVI, No. 4April, 2006

Harvey Mars, Esq.

I was recently contacted by the president of AFM Local 369 (Las Vegas) with a question regarding the strike precipitated by Wayne (“Mr. Las Vegas”) Newton’s refusal to enter into a union contract for performances at the Flamingo.

The president wanted to know if he was legally permitted to publish the names of musicians who were performing for Newton on a nonunion basis.

The question triggered some interesting issues which I recall were raised by Local 802 during the recent Broadway strike.

As some readers may recall, the names of the scab musicians who performed or recorded shows during the Broadway strike were published on the front page of the May 2003 issue of Allegro.

In 1974, the U.S. Supreme Court squarely addressed this issue in Old Dominion Branch No 496, National Association of Letter Carriers v. Austin, 48 U.S. 264 (1974).

There, the court held that federal labor policies favored uninhibited, robust and wide open debate when the issue involved labor disputes. State libel laws were, therefore, held to be pre-empted by this federal policy.

Hence, for an individual to claim that he or she was damaged by a statement or printed material promulgated by a union in the context of a labor dispute, they would have to demonstrate that the statements were made either with “malice” (that is, ill will and the intention to inflict harm on the individual subjected to the statement) or with reckless disregard for the truth.

As a result, the court held that it was both permissible for a union to publish the names of strikebreakers and permissible to call them scabs or any other term which had the same meaning (e.g. rat, pig, etc.).

See also Thomas v. Flavin, 58 A.D. 2d 1031, 397 N.Y.S. 2d 286 (4th Dept. 1977). There, the use of the term “scab” in the context of a labor dispute is protected speech.

In fact, the immunity conferred on speech (either written or spoken) in labor disputes is so extensive that it is not unusual — and in fact expected — that hyperbole and distortions of the truth will be used.

It is not uncommon for parties to a labor dispute to castigate the other and portray them in the worst possible light, without the slightest fear of liability.

Nor is it uncommon for parties to publicly distort proposals to gain an advantage in the negotiations.

Understandably, like political speech, statements made concerning a labor conflict are accorded the highest level of constitutional protection. See Linn v. United Plant Guard Workers of America, 383 U.S. 53 (1966).

Of course, since it is always better to err on the side of caution, I advised the local’s president to double-check his facts to make sure that the individuals he intended to list as scabs in fact crossed the picket line.

No innocent party should bear the stigma of being labeled a scab. However, I think we can all agree that union members who cross a picket line should be forever branded with that term.

(Even Local 802’s own bylaws prohibit union members from crossing a lawful picket line — and subject transgressors to punishment!)

Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.