Since Gov. Kathy Hochul nominated Justice Hector LaSalle to be chief judge of the New York Court of Appeals, the judicial nominee has come under scrutiny for his decision in the 2015 case Cablevision Systems Corp. v. Communications Workers of America District 1. The outcome of the case allowed corporations to bring defamation suits against union leaders, departing with long-standing New York precedent. As a result, over half a dozen unions and the New York State AFL-CIO have expressed their opposition to the nomination.
Gov. Hochul has since claimed that Cablevision was a mere “procedural decision to send it down to the trial courts.” Others say that it is “just one case.” Setting aside the fact that LaSalle actually has joined a number of opinions that undermine workers’ rights, Cablevision’s “procedural decision” was profoundly wrongly decided – by butchering precedent in a 70-year-old Court of Appeals decision and misapplying the law – and gave corporations a significant new tool during labor disputes, which has a chilling effect on union leaders’ ability to engage in the full range of protected labor activity. This poorly done decision alone is disqualifying for anyone seeking to sit on our state’s top court.
The decision is critical given that the U.S. Supreme Court just heard arguments in a lawsuit that may roll back federal protections against lawsuits related to strike activity, opening the door to more state-level lawsuits against union officials.
The Cablevision case and the Martin rule
In Cablevision, the Second Department considered whether and to what extent corporations could sue union leaders and organizers during an ongoing labor dispute. Cablevision had sued the leaders and organizers for, among other things, alleged defamation in the course of a years-long labor dispute with the Communications Workers of America District 1.
The trial court dismissed Cablevision’s lawsuit under long-standing precedent, Martin v. Curran, 303 N.Y. 276 (1951), where the Court of Appeals ruled against an employer in a libel lawsuit brought against union officers in their official capacities. Martin stands for the principle, as the First Department put it in Duane Reade v. Local 338, that “individual defendants cannot be held liable for acts committed in their capacity as union representatives, even if those acts were not authorized by the union membership.”
In Cablevision, LaSalle and his colleagues reversed the trial court in part and decided that Cablevision’s litigation against union leaders in their “individual capacity” could continue – despite the fact that Cablevision had not alleged that any actions by the union leaders occurred outside their capacity as union leaders.
Cablevision’s Flawed Reasoning
How then did the Cablevision majority justify reversing the trial court and allowing continued litigation? By making two serious mistakes.
First, it claimed Martin allowed for this outcome, saying that the court in Martin “specifically allowed the libel claims in that action to proceed against the same defendant union members, in their individual capacities[.]”
The trouble with this argument is that the Court of Appeals in Martin did no such thing. It couldn’t. The lower court asked the Court of Appeals to review if it had properly dismissed the claims against the defendants in their capacity as union leaders; by certifying the question of law to the high court narrowly in this way, it limited the questions the high court could consider. The Court of Appeals therefore had no choice but to leave the question of suits against union officials in their individual capacity to another day.
Second, having gotten the law wrong – there was no precedent requiring claims against union officials “in their individual capacity” to proceed – Justice LaSalle and his colleagues then proceeded to apply their new rule in a very odd way. The Cablevision majority blew past the typical distinction of “individual capacity” and “representative capacity.” Instead, they looked at the title of the lawsuit: if it named the individuals (a pure formality) that was good enough. There was no need for the employer to explain why these individuals were acting in their individual capacity and not as union leaders – to the employer’s delight, because they couldn’t even allege facts showing the leaders were acting as individuals and not leaders.
The Cablevision majority devoted only three sentences to analyzing Cablevision’s claims against the individual defendants. The court acknowledges the claims are against individuals and, rather than disagreeing with the dissent’s characterization of the facts, it sends this question back to the trial court for further discovery, inexplicably giving Cablevision a second chance to continue its baseless lawsuit, and creating new precedent in the process.
LaSalle’s supporters have attempted to explain away this shortcoming in two ways. First, some argue the complaint contained specific allegations of separate individual actions by the individual defendants. But the complaint presents a clear outline of a typical union campaign, and nowhere does the complaint state that these individual actions were somehow unrelated to the union campaign. These are actions that advocacy organizations routinely engage in.
Second, others – like political commentator Errol Louis – argue that Cablevision did not matter. As Louis puts it, “The court in Cablevision pointedly noted that the labor leaders would end up with zero liability if their actions were later found to indeed have been made on behalf of the union … signaling that the labor officials would likely be off the hook at the next stage of the case.” For that reason, Louis claims that “Opponents of LaSalle have turned that procedural ruling into a fictitious charge that he is ‘anti-union.’”
But what Errol Louis and other LaSalle defenders fail to grasp is that these lawsuits have a major negative impact even if they do not ultimately result in liability. The decision in Cablevision represents a major new tool for corporations to wield against workers during labor disputes in New York.
By allowing defamation lawsuits against union officers to move forward without requiring evidence of personal animosity or that an individual acted beyond their official capacity, the Cablevision court allowed corporations to more easily bring cases against individuals engaged in legally protected union activity.
Even if the companies do not ultimately prevail in such lawsuits, they can use their coffers to bog unions down in litigation. They can force unions to expend significant time and incur high legal fees defending the lawsuits. The fear of such lawsuits can effectively chill unions and union leaders from engaging in the full range of protected activity during labor disputes.
On January 10 the U.S. Supreme Court heard a case where it appears poised to gut federal restrictions on corporations suing in state court for union actions. If the conservative majority rules against the workers, New York’s state law protections will become even more vital, as state courts will be hearing far more labor disputes. If New York truly aims to protect workers, the state Senate cannot confirm LaSalle. If the Senate does, then a conservative bloc on the Court of Appeals could make the Cablevision standard the law statewide.
Jack Travis is a second-year law student at NYU School of Law. Leo Gertner is a union-side labor & employment attorney in New York.