[Cite as Anzevino v. DePasquale, 2012-Ohio-1507.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

RANDAL ANZEVINO, ) 

 ) 

 PLAINTIFF-APPELLANT, ) CASE NO. 11 MA 111 

 ) 

 -VS- ) 

 ) O P I N I O N 

RAYMOND DePASQUALE, et al., ) 

 ) 

 DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Case No. 08CV3802. 

JUDGMENT: Affirmed in part; Reversed and Remanded 

 in part. 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

 Dated: March 30, 2012
[Cite as Anzevino v. DePasquale, 2012-Ohio-1507.]

APPEARANCES: 

For Plaintiff-Appellant: Attorney A. Clifford Thornton, Jr. 

 23230 Chagrin Blvd. #605 

 Beechwood, Ohio 44122 

For Defendants-Appellees: Attorney Samuel Amendolara 

 1032 Boardman-Canfield Road 

 Youngstown, Ohio 44512 

 (For Raymond DePasquale) 

 Attorney Robert Moore 

 114 Neff Drive 

 Canfield, Ohio 44406-1345 

 (For Teamsters Local 377) 

 Attorney Neil Schor 

 26 Market Street, Suite 1200 

 P.O. Box 6077 

 Youngstown, Ohio 44501-6077 

 (For Christopher Colello) 
[Cite as Anzevino v. DePasquale, 2012-Ohio-1507.]

VUKOVICH, J. 

{¶1} Plaintiff-appellant Randal Anzevino appeals the decision of the Mahoning 

County Common Pleas Court granting summary judgment in favor of defendantsappellees. The issue is whether the trial court properly dismissed appellant’s claims 

on the grounds that they are preempted by the National Labor Relations Act so that 

the National Labor Relations Board is the only proper forum for those claims. 

{¶2} For the following reasons, the judgment of the trial court is affirmed in 

part and reversed and remanded in part. Contrary to the trial court’s decision, United 

States Supreme Court law allows appellant’s intentional defamation claim to remain in 

state court, and appellant’s tortious interference claim can also remain in state court to 

the extent that it is based upon intentional defamation. The trial court’s dismissal of 

appellant’s negligent defamation claim is affirmed. 

STATEMENT OF THE CASE

{¶3} Appellant is a truck driver in the Teamsters Union. In September of 

2008, he filed a civil complaint in the Mahoning County Common Pleas Court against 

Raymond DePasqaule, Christopher Colello, the International Brotherhood of 

Teamsters, and the Teamsters Local 377. The complaint stated as background that in 

May of 2007, appellant filed charges with the Local against DePasqaule, who was the 

Local’s business agent, alleging that he failed to enforce a collective bargaining 

agreement on a job and committed fraud in issuing OSHA cards for hazardous 

material training. The charges were not processed by the Local due to “lack of 

specificity.” 

{¶4} In July, he restated his charges against the business agent. In August of 

2007, appellant brought charges against Colello, who was the Local’s president, for 

fraud in convincing employers to allow unemployment for failed drug tests, failure to 

act on the OSHA card issue, failure to police the jurisdiction, and failure to process a 

prior grievance. The Local forwarded the July and August charges to a higher 

authority due to a conflict of interest. 
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{¶5} Thereafter, the business agent and the union president copied 

appellant’s personnel file. This act was captured by videocameras that they did not 

know had been installed in the union hall. The file was mailed to appellant’s new 

employer in September of 2007. Appellant was fired the day the employer received 

his file in the mail. He then brought more charges with the union.1

{¶6} In his civil complaint, appellant set forth six counts: tortious interference 

with a business relationship against the business agent and president as individuals; 

vicarious liability of the Local for tortious interference; intentional defamation against 

the individuals; negligent defamation against the individuals; vicarious liability of the 

Local for defamation; and, negligent supervision by the unions. 

{¶7} The case was removed to federal court on the grounds that the claims 

were preempted by the Labor Management Relations Act (LMRA). Thereafter, the 

federal court found that the sixth count (negligent supervision by the unions) was 

barred by the statute of limitations in the LMRA. As to the other counts (which are the 

ones at issue in the case before us), the federal court ruled that they were not 

preempted by the LMRA as there was no need to interpret the collective bargaining 

agreement or to invoke a right provided by the agreement in order to adjudicate these 

claims. Thus, on June 18, 2009, these counts were remanded back to the state trial 

court. 

{¶8} In May of 2010, the defendants moved for summary judgment on various 

grounds. In pertinent part, they argued that the National Labor Relations Act (NLRA) 

preempts the remaining claims as they deal with conduct prohibited or protected by 

that act and thus are subject to the primary jurisdiction of the National Labor Relations 

Board (NLRB). Specifically, they argued that the alleged conduct was covered by the 

act because it could be considered a violation of the union’s duty of fair representation, 

retaliation for engaging in a protected activity, or mere disclosure of information 

necessary to an employer. The magistrate denied summary judgment. 

 

1

In February of 2008, the Teamsters General Executive Board found merit to the charge against 

the business agent and president for copying appellant’s file and sending it to his employer, stating that 

this was improper behavior. They were suspended from the union for this and other charges unrelated 

to appellant. 
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{¶9} Thereafter, the Local asked the magistrate to reconsider its denial of 

summary judgment. The Local explained that the LMRA preemption issue decided by 

the federal court dealt only with whether removal to federal court was appropriate and 

is distinct from the NLRA preemption issue now raised which deals with NLRB 

jurisdiction. The Local reiterated its arguments concerning why the conduct 

complained of falls under the NLRA and thus under the sole jurisdiction of the NLRB. 

Appellant responded that such preemption only applies in the context of a labor 

dispute or where there is an unfair labor practice. 

{¶10} On September 21, 2010, the magistrate granted summary judgment for 

the defendants. Appellant filed timely objections. On June 15, 2011, the trial court 

adopted the magistrate’s decision and granted summary judgment to the defendants, 

holding that the claims are preempted by the NLRA since the conduct complained of 

was arguably prohibited by the act and thus the NLRB is the proper forum before 

which the claims must be brought. Appellant filed a timely notice of appeal. 

GARMON PREEMPTION

{¶11} The Garmon doctrine is one type of preemption found to be necessary to 

implement federal labor policy by precluding state interference with the NLRB's 

interpretation and enforcement of the NLRA. Golden State Transit Corp. v. Los 

Angeles, 475 U.S. 608, 613, 106 S.Ct. 1395, 89 L.E.2d 616 (1986); San Diego 

Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.E.2d 775 (1959). 

Under Garmon preemption, the NLRB has primary jurisdiction over (and thus states 

cannot regulate or judicially remedy) activity that is protected or arguably protected 

under §7 of the NLRA or arguably constitutes an unfair labor practice and is thus 

prohibited under §8 of the NLRA. Garmon, 359 U.S. at 244-245. See also Wisconsin 

Dept. of Indus. v. Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.E.2d 223 

(1986). So, if a remedy can be sought under the NLRA, a separate remedy cannot 

generally be sought in state or federal court; otherwise conflicts would result. See 

Garner v. Teamsters, 346 U.S. 485, 498-499, 74 S.Ct. 161, 98 L.E. 228 (1953); 

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 748-749, 105 S.Ct. 2380, 

85 L.E.2d 728 (1985), fn.26. 
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{¶12} One exception to the Garmon doctrine applies where the activity is 

merely a peripheral concern of the NLRA or touches interests so deeply rooted in local 

responsibility that courts cannot infer Congress deprived states of the power to act. 

J.A. Croson Co. v. J.A. Guy, Inc., 81 Ohio St.3d 346, 355, 691 N.E.2d 655 (1998), 

citing Farmer v. United Brotherhood of Carpenters & Joiners of Am., Local 25, 430 

U.S. 290, 296-297, 97 S.Ct. 1056, 51 L.E.2d 338 (1977) and Garmon, 359 U.S. at 

243-244. Along these lines, Garmon has not been applied to preempt state court 

actions for intentional inflection of emotional distress, malicious libel, violence, threats 

of violence, and threats to public order, even if the facts (if true) would also violate 

Section 8 of the NLRA. Farmer, 430 U.S. at 303; Linn v. Plant Guard Workers, 383 

U.S. 53, 86 S.Ct. 657, 15 L.E.2d 582 (1966); Humility of Mary Health Partners v. Sheet 

Metal Workers’ Local Union No. 33, 7th Dist. No. 09MA91, 2010-Ohio-868, ¶ 11, citing 

Garmon, 359 U.S. at 247. 

{¶13} Still, in order to determine whether the activity is arguably protected or 

prohibited by the NLRA, it is the conduct, not the cause of action that is to be 

evaluated. Humility of Mary, 7th Dist. No. 09MA91 at ¶ 15-17, citing Amalgamated 

Assn. of Street, Elec., Ry. & Motor Coach Emp. of Am. v. Lockridge, 403 U.S. 274, 

292, 91 S.Ct. 1909, 29 L.E.2d 473 (1971). This is not an easy task and has been 

termed a “knotty problem.” Amalgamated, 403 U.S. at 277. 

ASSIGNMENT OF ERROR

{¶14} Appellant’s sole assignment of error provides: 

{¶15} “THE TRIAL COURT ERRED IN FINDING THAT APPELLEES’ 

TORTIOUS CONDUCT ARGUABLY OCCURRED WITHIN THE CONTEXT OF A 

LABOR DISPUTE AND WAS THUS PREEMPTED BY FEDERAL LAW PURSUANT 

TO THE NATIONAL LABOR RELATIONS BOARD.” 

{¶16} Appellant states that the conduct complained of in his complaint is not on 

the list of protected activities in Section 7. As for Section 8, appellant argues that the 

sending of the file did not involve a labor dispute, which he believes is a required 

criteria for an unfair labor practice to exist. 

{¶17} The defendants respond that a pre-existing labor dispute is not required 

for there to be a violation of the NLRA, especially if the act complained of is itself 
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labor-related. See 29 U.S.C. 158. Notably, a main complaint by appellant concerns 

the union’s interference with his existing employment relationship. And, it has been 

held that “employment relations” is a concern of the NLRB and that this would include 

an employee’s complaint that the union did not refer him to a job. See Plumbers v. 

Borden, 373 U.S. 690, 697, 83 S.Ct. 1423, 10 L.E.2d 638 (1963). 

{¶18} The defendants also note that at the time the file was copied and mailed, 

appellant was not happy with the handling of a claim he wished to pursue against a 

prior employer for his termination, and he had filed charges against them for their 

handling of various labor issues. Thus, they urge that appellant was involved in a 

labor dispute with the two union officials at the time of their conduct. See 29 U.S.C. 

152(9) (defining labor dispute as including any controversy concerning terms, tenure 

or conditions of employment, or concerning the association or representation of 

persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or 

conditions of employment, regardless of whether the disputants stand in the proximate 

relation of employer and employee). In fact, it could be said that the act of union 

officials of sending a union file to the union member’s employer in order to get him 

fired created a labor dispute itself. 

{¶19} Appellant counters that once conduct rises to a certain level, such as 

violence or threats of violence, the existence of a labor dispute is not the point. In 

other words, the specific conduct here is actionable without regard to any background 

dispute. This is essentially an argument concerning the Garmon exception, which will 

be addressed below. 

{¶20} Another argument the defendants set forth is that they arguably violated 

a duty of fair representation which was owed to appellant under the NLRA and which 

is equivalent to an unfair labor practice. The defendants rely upon Vaca, where the 

employee sued the union for breach of fair representation by failing to arbitrate a 

grievance after he was discharged from employment. See Vaca v. Sipes, 386 U.S. 

171, 87 S.Ct. 903, 17 L.E.2d 842 (1967). The Court acknowledged that the NLRB has 

held that the duty of fair representation is implicit in Section 9 of the NLRA and thus 

the violation of the duty can be an unfair labor practice under Section 8. Id. at 176-

177. See also Breininger v. Sheet Metal Workers Internatl. Assn. Local Union No. 6, 
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493 U.S. 67, 86-87, 110 S.Ct. 424, 107 L.E.2d 388 (1989). The Vaca Court held that a 

breach of the statutory duty of fair representation occurs when a union's conduct 

toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad 

faith. Id. at 190. 

{¶21} However, the Vaca Court allowed the cause of action to proceed in state 

court, noting that the duty of fair representation is a judicially-created doctrine. The 

Court had cited the various cases that have fallen under the Garmon exception 

outlined above. See id. at 180, citing Linn, 383 U.S. 53 (libel) and Internatl. Union, 

United Auto. Workers of America v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.E.2d 

1030 (1958) (violence). The Court later concluded that the action could proceed 

(under a section of the LMRA) notwithstanding that the Garmon doctrine would 

preempt the action as an unfair labor practice under the NLRA. Id. at 183-184. See 

also Breininger, 493 U.S. at 76 (that a breach of the duty of fair representation might 

also be an unfair labor practice is thus not enough to deprive a court of jurisdiction 

over the fair representation claim). 

{¶22} Thus, Vaca does not support the defendants’ position here. Rather, it 

tends to support a claim that the NLRA does not preempt all suits based upon fair 

representation merely because such can be considered an unfair labor practice by the 

NLRB. Regardless, appellant’s claims do not rely on some judicially-created duty of 

fair representation. Thus, we continue to address his claims. 

{¶23} The defendants then cite Section 8(b), which prohibits (as an unfair labor 

practice) a union or its agent from restraining or coercing employees in the exercise of 

their rights under Section 7. 29 U.S.C. 158(b). The portion of Section 7 on which they 

rely states that the employee has the right to engage in concerted activity for the 

purpose of mutual aid or protection. 29 U.S.C. 157. The defendants conclude that 

their act of sending the file to the employer could arguably be considered a retaliatory 

act to coerce appellant from exercising his right under Section 7 to criticize them and 

to bring union charges against them, citing Teamsters Local Union No. 657, 342 NLRB 

637 (2004) (NLRA protects right to bring internal union charges against union officers 

and right to criticize their performance). They alternatively propose that their conduct 

could arguably be considered a protected activity done to prevent harm to the other 
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union members and the union as a whole. The defendants conclude that the claims 

are preempted because their conduct was arguably prohibited by Section 8 and/or it 

was arguably protected by Section 7.2

 

{¶24} As to the latter argument, intentionally publishing information known to 

be false about a union member is not claimed to be protected. As to the former 

argument, appellant did not sue the business agent, the president, and vicariously the 

union because they may have retaliated against him. Why they engaged in the 

behavior emphasized above was irrelevant to appellant’s case. Even if they can 

devise reasons for acting that are prohibited under the act, this does not answer the 

question of whether the Garmon exception applies here. 

{¶25} On this issue, there is a case in appellant’s favor regarding the conduct 

constituting intentional defamation. In Linn, an assistant manager filed a libel action 

against the union stating that a defamatory statement was circulated about him. Linn 

v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.E.2d 582 (1966). The United 

States Supreme Court noted that under a formalistic application of Garmon, the suit 

would have been preempted. Id. at 61-62. Yet, the Court applied the exception to the 

Garmon rule for various reasons. Id. 

{¶26} First, the underlying conduct, the intentional circulation of defamatory 

material known to be false, was not protected by the NLRA, and there was thus no risk 

that permitting the state cause of action to proceed would result in state regulation of 

conduct that Congress intended to protect. Id. Second, the Court recognized “an 

overriding state interest” in protecting residents from malicious libels that was “deeply 

rooted in local feeling and responsibility.” Id. Third, the Court found little risk the state 

cause of action would interfere with the effective administration of national labor policy 

as the NLRB would be unconcerned with whether the words were defamatory while 

the state court would be unconcerned with whether they were coercive or misleading. 

Id. 

 

2

At one point, the defendants note that appellant filed charges with the NLRB and characterize 

this suit as a “second bite of the apple.” However, those charges, attached to the defendants’ summary 

judgment motion, are not related to defamation and tortious interference surrounding the act of the 

mailing appellant’s union personnel file to his employer. 
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{¶27} Moreover, the Linn Court pointed out that NLRB would lack authority to 

provide the defamed individual with damages. Id. at 63. The Court then restricted the 

scope of that exception by holding that state damages actions in this context would 

escape preemption only if limited to defamatory statements published with knowledge 

or reckless disregard of their falsity. Id., using the standards from New York Times 

Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.E.2d 686 (1964). 

{¶28} Although we are to view the conduct rather than the cause of action, the 

alleged conduct in our case (intentionally publishing information known to be false 

which allegedly causes actual damages due to firing) is equivalent to the conduct in 

Linn. Thus, we hold that the Linn rationale applies to the intentional defamation claim 

here, and that such claim is not preempted. The negligent defamation claim, however, 

would not fall under the Garmon exception pursuant to Linn as it alleges less than 

knowledge or reckless disregard of the falsity, and thus, the negligent defamation 

claim is preempted. 

{¶29} This leaves us to evaluate the conduct underlying the tortious 

interference claim. In one case cited by the parties, an employee claimed that his 

union arbitrarily refused to refer him for a job, alleging tortious interference with his 

right to contract for employment and breach of a promise implicit in his membership 

not to deny him the right to work. Plumbers v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 

10 L.E.2d 638 (1963). The Court stated that concurrent state court action would 

significantly impair the functioning of the federal system because if an unfair labor 

practice charge had been filed, the NLRB may have concluded that the refusal to refer 

the employee was a lawful hiring hall practice. Id. See also Iron Workers v. Perko, 

373 U.S. 701, 83 S.Ct. 1429, 10 L.E.2d 646 (1963) (a companion case). 

{¶30} Yet, the Linn rationale, which was released three years after Plumbers, 

can be applied to certain aspects of the tortious interference cause of action here. That 

is, appellant alleges interference by sending information that was knowingly false, 

hearsay, and confidential. The allegations that knowingly false information interfered 

with his business relationship falls under the Linn rationale (the Garmon exception). 

Whereas, whether the information was in fact confidential or whether it was proper for 

them to send hearsay is more of a labor issue and does not fit in the Garmon
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exception applied in Linn. In other words, we hold that to the extent the tortious 

interference claim relies on intentional defamation, it is not preempted pursuant to 

Linn, and to the extent it relies upon other conduct, it is preempted by Garmon under 

the Plumbers rationale. 

{¶31} Finally, the defendants suggest that certain elements of each cause of 

action (unprivileged for defamation and not justified for tortious interference) will 

require delving into the collective bargaining agreement. As appellant argues, the 

inapplicability of the collective bargaining agreement to these claims was already 

decided by the federal court when it remanded and refused to allow removal with the 

specific finding that these claims did not involve the collective bargaining agreement. 

In any event, contrary to their general argument, they would not have a duty under 

federal law to provide knowingly false statements (the only ones found above not to be 

preempted). 

CONCLUSION

{¶32} For the foregoing reasons, the judgment of the trial court finding all 

claims preempted by the NLRA is reversed and remanded in part. Appellant’s 

intentional defamation claim is not preempted and can remain in state court. 

Appellant’s tortious interference claim can remain in state court but only to the extent 

that it is based upon intentional defamation. The dismissal of appellant’s negligent 

defamation claim is affirmed as such claim is preempted by the NLRA. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.