Petition for Writ of Certiorari — Geske & Sons, Inc. v. International Union of Operating Engineers, Local 150

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Eupreme Court, U.S,

ee

OCT - 1 1993

INTHE _ . lites

Supreme Court of the Gniled States

OCTOBER TERM, 1993

GESKE & SONS, INC.,

Petitioner,

v.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL 150 AND CHAUFFEURS, TEAMSTERS AND

HELPERS, LOCAL UNION 301,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

SECOND JUDICIAL DISTRICT

GERARD C. SMETANA*

LAW OFFICES OF

GERARD C. SMETANA

333 West Wacker Drive

Chicago, Illinois 60606

(312) 357-0251

MICHAEL E. AVAKIAN

CENTER ON NATIONAL

LABOR POLICY, INC.

5211 Port Royal Road

N. Springfield, VA 22151

(703) 321-9180

*Counsel of Record

anenestiennitiinel aneanie

QUESTIONS PRESENTED

1. Whether federal law requires the Illinois courts to follow this

Court’s Linn v. Plant Guard Workers defamation standard which

protects speech uttered during the course of “labor disputes,” except

for those publications and statements that are knowingly false or

made in reckless disregard of the truth.

2. Whether this Court’s articulation of a single standard of proof

for libelous statements in Linn v. Plant Guard Workers for labor

disputes, therein adopting by analogy the New York Times v. Sullivan

standards of liability for statements made in reckless disregard for

the truth or knowingly false, tolerates and does not preempt

continuing state use of per se libel law standards that act to deprive

a party of the nght to protect its reputation and business when

libeled during the course of a labor dispute.

LIST OF PARTIES

Petitioner Geske & Sons, Inc. is a Closely-held, non-public

corporation owned by Larry Geske and Leroy Geske. Geske has no

parent companies, subsidiaries or affiliates.

The Respondents here include:

International Union of Operating Engineers, Local No. 150;

Chuck August, a business agent of International Union of

Operating Engineers, Local No. 150, and

Chauffeurs, Teamsters and Helpers, Local Union No. 301.

- lll -

TABLE OF CONTENTS

Page

QUESTIONS PRET,'GNTED .. wc ccc wcccccrevvccecse 1

Se Wi PE bk 636s ec hcesn cue cece ll

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en MOTT ies sone es ee eee an deed eckseaeee l

PAEEEEHEE 66. 0k 0 050943 ieee ee ee ee 2

CONSTITUTION AND STATUTES INVOLVED .......... 2

Di raeeeets Ge Fame CAO 6c iv c ccc cdcceseuc¥evens 3

OT kv oe nos Kew eee 3

Pr Pe TER re ee oe 5

©. RAIN TD ko one dace dnecesueeenaees 7

REASONS FOR GRANTING THE WRIT .............. 10

I. THE ACTUAL KNOWLEDGE OR RECKLESS

DISREGARD FOR THE TRUTH STANDARD OF

PROOF FOR TRADE LIBEL ARISING IN A “LA-

BOR CONTEXT” WAS ESTABLISHED BY THIS

COURT IN LINN V. PLANT GUARD WORKERS

AND CONFIRMED IN AUSTIN TO BE A

UNIFORM RULE THAT MUST BE FOLLOWED

BY STATE COURT’S TO AVOID FEDERAL

FOTO 008654 lacewsndee 10

Il. THE APPELLATE COURT’S RULING THAT

HELD FACIALLY UNTRUE LANGUAGE

CANNOT BE ENJOINED CONFLICTS WITH

DECISIONS IN OTHER STATES THAT ALLOW

—_ LO SSS aa ee a EE EEE OE ae ee eee OO ae ees lee

« We

UNION FALSE STATEMENTS OF FACT

Fes ee TOD 6 5 6c hs beseuekeeeencuees 18

CONCLUSION ...... PTE artes: 82, 21

Appendix:

Opinion and Order of the Appellate Court of Illinois .... la

Order of the Circuit Court of McHenry County ....... lla

Opinion of the Circuit Court of McHenry County ...... 12a

Order of the Supreme Court of Illinois .............. 25a

Opinion of the U.S. District Court

for the Northern District of Illinois ............... 26a

Order of the U.S. District Court

for the Northern District of Illinois ............... 30a

TABLE OF AUTHORITIES

CASES

Page

Amalgamated Ass'n of Street, Elec. & Motor Coach Employees

v. Lockridge,

Cg 8. ene Uy er ray am 14

American Fed’n of Technical Engrs. v. LaJeunesse,

2 & & 2: ,. Bre per eye eer errr Ee 14

CWA v. Archibeque,

105 N.M. 635, 735 P.2d 1141,

ED Rae GUUERD SD CODED ovr eccccscccseceses 15

Caruso v. Teamsters, Local 690,

33 Wash. App. 201, 653 P.2d 638,

pe Mm fa NG Oa. 15

City of Rockford v. Local 413,

ee Pee Fe A A SE ik Sa eds wee es veeeuwees 6

Dale v. Ohio Civil Serv. Employees Assn,

57 Ohio 3d 112, 567 N.E.2d 253,

PS Ee ee Ee CUED ois hee weak stecevaies 15

Foreign Car Center, Inc.,

Se I SN ones oy oR aw wae eae ae 6

Henderson v. Teamsters, Local 313,

90 Wash. 2d 666, 585 P.2d 147,

FF LRM (A) S472 (ISTE) 2c ccc cece cccccces 14

Higgins v. Gordon,

433 N.W.2d 306 (Ct. App. IA 1988) ................. 17

- vi -

Hotel & Restaurant Employees, Local 681 v.

Anaheim Operating, Inc.,

82 Cal. App.2d 337, 147 Cal. Rptr. 510 (Ct. App. 1978) ... 14

IBEW y. Bradley,

147 Ill. App. 3d 193, 499 N.E.2d 577 (2d Dist. 1986) ...... 6

Lechmere v. NLRB,

ee ee ee ED a ss a's o's oe ec aweweOeaeweevs 18

Linn v. United Plant Guard Workers,

GES UD. SD UIPGRD wc ccc sccceerss 4, 5, 10, 11, 12, 15, 17

Lowe Excavating Co. v. International Union of Operating Engrs.,

Local 150,

180 Ill. App. 3d 39,

535 N.E.2d 1065 (2d Dist. 1989) .............. 4,9, 10, 12

Magill Bros., Inc. v. Building Serv. Employees Int’l Union,

yas & FO eee eS Bel eer 18, 19

Mittelman v. Witous,

135 TE. 26 220, SSB N.E.26 973 CISGR). 2 ccc ccccsccees 17

NLRB v. Illinois Bell Telephone Co.,

ee oe Fe Fo BB , .) | ee 6, 16

New York Times v. Sullivan,

De eo oe cena a eee eee cade re eee 1]

OCAW vy. Sinclair Oil Corp.,

748 P.2d 283, 128 L.R.R.M. (BNA) 2709 (Wy. 1987) ..... 15

Oetzman v. Ahrens,

145 Wis. 2d, 560, 427 N.W.2d 421 (1988) ............. 15

Old Dominion Branch No. 496, Letter Carriers v. Austin,

Cae We ee Cee 6k bo ob eeed cwrseaues 4, 6, 13, 15-16

- Vii -

Sears, Roebuck & Co. v. San Diego County Dist. Council of

Carpenters,

Se ee ID not p00 oo ere pee ee ceed ees 0s 18

Steinhilder v. Alphonse,

68 N.Y.2d 283, 501 N.E.2d 550,

S25 EE Gees Beet CHMOD sccvcce rete tress. 16

Tosti v. Ayik,

386 Mass. 721, 437 N.E.2d 1062,

ERR Fee, Ob. Bh: re 14

Tosti v. Ayik,

394 Mass. 482, 476 N.E.2d 928,

i ge Bev Wee ies < Fl) -) 15

United Farm Workers v. Superior Court,

4 Cal. 3d 556, 483 P.2d 1215,

T? LRM GRA) 2208 (IFT) nn cc ccc ewccseves 19

Vee See Constr. Co. v. Jensen & Halstead, Lid.,

79 Ill. App. 3d 1084, 399 N.E.2d 278 (Ist Dist. 1979) 4, 8, 10-11

Virgil Jean v. William E. Dugan,

814 F. Supp. 1401 (N.D. Ind. 1993) ..........----04-- 17

Wolf Street Supermarkets, Inc. v. McPartland,

108 A.D.2d 25, 487 N.Y.S.2d 442,

117 Lab. Cas. (CCH) 80,382 (App. Div. 1985) .......... 1]

CONSTITUTION AND STATUTES

ee tess vee te es aevcceseee 18

Restatement (Second) of Torts § 580B, commenti ..... 15, 16t

No. 93-

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

GESKE & SONS, INC.,

Petitioner,

Vv.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

NO. 150; CHUCK AUGUST, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

SECOND JUDICIAL DISTRICT

Petitioner Geske & Sons, Inc. (“Geske’’) respectfully prays that

a writ of certiorari issue to review the judgment and opinion of the

Appellate Court of Illinois, Second Judicial District.

OPINIONS BELOW

The opinion of the Appellate Court of Illinois, Second Judicial

District is unreported. The opinion of the Circuit Court of McHenry

County, Illinois, is also unreported. These opinions and Orders are

reproduced in the appendix at pages la and lla, respectively.' The

ruling of the United States District Court for the Northern District of

Illinois is reprinted in the appendix at page 26a.

]

' “a” references are to the accompanying Appendix hereto. “Tr. Vol.”

references are to the volumes of the trial court transcript.

JURISDICTION

The judgment of the court of appeals was entered on September

29, 1992. A timely petition for rehearing was filed on December 1,

1992 and denied on January 5, 1993. A petition for leave to appeal

to the Supreme Court of Illinois was filed on April 10, 1993. The

Petition was denied on June 3, 1993. Justice Stevens granted

Petitioner’s motion for extension of time to file the Petition for Writ

of Certiorari to this Court on August 10, 1993 (App. No. A-135), to

and including October 1, 1993. This Court has jurisdiction to

review the judgment of that court under 28 U.S.C. § 1257(3).

CONSTITUTION AND STATUTES INVOLVED

Article VI, Section 2 of the Constitution, provides:

The Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in

the Constitution or Laws of any State to the

Contrary notwithstanding.

The Labor Management Relations Act of 1947 (“LMRA”), 29

U.S.C. § 151 et seq., is involved in this case.

29 U.S.C. § 152(9) provides:

The term “labor dispute” includes any controver-

Sy 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.

~~ =

29 U.S.C. § 157 provides:

Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations,

to bargain collectively through representatives of

their own choosing, and to engage in other

concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and

Shall also have the right to refrain from any or

all of such activities except to the extent that

such right may be affected by an agreement

requiring membership in a labor organization as

a condition of employment authorized in section

158(a)(3) of this title.

STATEMENT OF THE CASE

a. Procedural Background

Petitioner filed its state court action on September 5, 1991. It

complained that Local 150’s publication and use of “on Strike”

language on picket signs was materially false and misleading both

because none of Geske’s employees were in fact on strike or were

refusing to work and because Local 150 through the reasonable

exercise of diligence, acted recklessly in disregard of the truth in

making the statements. In addition, Local 150 untruthfully informed

Geske customers that Geske was closed and that Geske’s workers

were “On Strike.” These acts impaired Geske’s Operations and

caused it damage. Nothing in the complaint requested an injunction

to stop Local 150 from all picketing. The Complaint asked that

Local 150 be restrained from recklessly publishing false statements.

Geske filed a motion for Temporary Restraining Order and for

Preliminary Injunctive Relief, and argued that it could recover

damages for trade libel upon proof of actual malice within the

meaning of New York Times v. Sullivan and Linn v. United Plant

Guard Workers, because agents of Local 150 and Local 150 had

acted in reckless disregard of the truth when they also uttered

oy

statements to Geske customers that Geske was closed, out of

business, and that Local 150 represented Geske employees.

Geske successfully obtained a TRO from the Circuit Court of

McHenry County. The following day, September 6, 1991, Local

150 filed a Verified Notice of Removal to the United States District

Court for the Northern District of Illinois. The district court

dismissed the case and remanded it back to state court. 30a. °

The state trial court then received testimony in support of

Preliminary Injunctive Relief. After hearing Geske’s evidence, the

state court found the tort of trade libel was not preempted by federal

law under Linn. It then granted a directed finding to Local 150 for

Geske’s failure to establish within the high standards for injunctive

relief, the Illinois corporate per se standard of financial disparage-

ment required under Vee See Constr. Co. v. Jensen & Halstead, Lid,

79 Ill. App. 3d 1084, 1089, 399 N.E.2d 278 (lst Dist. 1979) ( ‘Vee

See’). lla, 1Sa-16a.

On appeal, the Appellate Court of Illinois, Second Judicial

District, also found that Geske’s causes of action were not preempted

by federal labor law. 5a. However, the appellate court rejected

Geske’s request that it apply the “standard of malice or reckless

disregard for the truth” rule from Linn v. United Plant Guard

Workers, 383 U.S. 53, 58, 65 (1966), Old Dominion Branch No.

496, Letter Carriers v. Austin, 418 U.S. 264 (1974) (“Austin”), and

Lowe Excavating Co. v. International Union of Operating Engrs.,

Local 150, 180 Ill. App. 3d 39, 535 N.E.2d 1065 (2d Dist. 1989)

(“Lowe”), Ill. app. denied, 126 Ill. 2d 560, 541 N.E.2d 1107 (1989),

cert. denied, 110 S. Ct. 499, 107 L.Ed.2d 502 (1989), rather than

Vee See. 6a-7a. The appellate court determined that the Illinois

trade libel standards applied to the case and not Linn. It denied a

timely petition for rehearing.

A timely motion for leave to appeal was filed with the Illinois

Supreme Court. It was denied.

b. Factual Background

This case presents a question of significant statutory importance

to employers nationwide: whether the libel law standard for labor

law disputes prescribed by this Court in Linn v. United Plant Guard

Workers, 383 U.S. 53 (1966), requiring proof that actionable

statements were made in reckless disregard of the truth or knowingly

false, is a uniform rule of federal law or may it be redefined by state

courts and replaced with different standards of proof.

Geske is a small commercial asphalt paving and manufacturing

contractor operating in Crystal Lake, Illinois with approximately

twenty employees at the time the lawsuit was filed. Chuck August

is a business agent of International Union of Operating Engineers

Local 150 (“Local 150”).

From August 19, 1991 to September 18, 1991, Local 150 pick-

eted Geske with signs stating:

I.U.0.E. LOCAL 150

ON STRIKE

AGAINST

GESKE

FOR RECOGNITION

AS MAJORITY BARGAINING

REPRESENTATIVE OF

COMPANY’S OPERATING

ENGINEER EMPLOYEES

The words “ON STRIKE” against Geske were printed in eight

inch high bold red lettering. In handwritten letters approximately 1-

1/2 inches high in light red coloring, the remaining words “for

recognition as majority bargaining representative of Company’s

operating engineer employees,” were written.

During this picketing, the evidence shows that union business

agents carried these signs and made appeals to Geske’s employees,

suppliers, and customers. Specifically, Local 150 stopped suppliers

and customers and told them that Geske employees were striking

“a ;

when none were. TR. Vol. I at 47; Tr. Vol. V at 233, 235.

Moreover, they told Geske customers attempting to enter Geske’s

driveway that Geske was “closed.” Next, the union told Geske

customers to purchase their supplies from Curran, a union competi-

tor. These customers were told that Curran would give them credit

and charge them less for asphalt, but Curran actually charged more

per ton. TR. Vol. II at 56, 58-59.

Union business agents testified that they knew the words “on

strike” would be understood to mean that concerted action was being

taken by employees against their own employer. Tr. Vol. I at 47;

Tr. Vol. VIII at 1110-1111.* Moreover, testimony showed that in

1989, Local 150 began using the “on strike” language embodied in

this case because union and non-union workers did not honor Local

150’s “prevailing wage” or “area standard” notices to the public.

However, the union became successful in preventing workers from

crossing its picket lines by using the new “on strike” signs. Tr. Vol.

2, 142-44. For example, truck drivers for Vulcan Materials

Company, a thirty year supplier of aggregate material to Geske,

refused to cross the “on strike” picket line. Tr. Vol. I at 73-74

Furthermore, Local 150 combined these misrepresentations with

threats to Geske’s customers, such as All American Asphalt Mainte-

nance, that they would destroy their trucks, Tr. Vol. II at 153, and

? Subsequent NLRB election proceedings, 33-RC-3769, established that only

one Geske employee worked in the jurisdiction of the Operating Engineers Union.

See Foreign Car Center, Inc., 129 N.L.R.B. 319, 320 (1960) (a representation

election requires more than one eligible person).

* Webster's Third New Unabridged Dictionary defines the word “Strike” as:

“a work stoppage by a body of workers to enforce compliance with demands made

on an employer.” In Austin, 418 U.S. 283, the Court employed Webster's

definition of “scab,” to ascertain its meaning. Here, no “body of workers” engaged

in “a work stoppage” against Geske. This definition is accepted throughout the

caselaw. See NLRB v. Illinois Bell Telephone Co., 189 F.2d 124 (7th Cir. 1951);

IBEW v. Bradley, 147 Ill. App. 3d 193, 499 N.E.2d 577 (2d Dist. 1986) (“[w]Jhen

a union prohibits its members from working for their employer--that is a

strike.””);City of Rockford v. Local 413, 240 N.E.2d 705 (Ill. App. 1968) (“cessation

of work by employees”).

>

lit cigarette lighters to prove their intent. Tr. Vol. II at 153, 157.

Trucks were dangerously followed and drivers harassed by agents of

Local 150. Tr. Vol. Ii at 74; Tr. Vol. V at 295, 333, 416; Tr. Vol.

VII at 113, 127.

Geske plead that it had no strike or any dispute with its

employees at all. Verified Complaint J 26-27. AI its employees

reported to work and all its employees carried on their respective

jobs. Complaint $j 26-27. In addition, Geske alleged that Local

150’s statements falsely assailed Geske’s financial position because

it implied that Geske was out of business or was not financially a

viable business entity. Complaint 4 26.

The complaint also alleged that: the union blocked ingress and

egress at the entrance to Geske’s facility, Complaint 4 19; the “On

Strike” sign the union used was materially false and was knowingly

made in reckless disregard for the truth, Complaint § 20; at the

entrance to Geske’s facilities, the union climbed onto customers’

trucks, congregated in a hostile fashion, and followed Geske’s trucks,

Complaint 23; the union told Geske’s customers that Geske was

“closed,” “broke down,” and “on Strike” when it knew these

Statements were false, Complaint §§| 25-27; and that the union

intended the acts listed above to interfere with Geske’s business

relations and advantage. Complaint {J 51, 57.

Hence, Geske alleged Local 150 had engaged in a combination

of acts that injured Geske: it masqueraded as Geske workers, spoke

untruthfully to Geske customers, and uttered to customers and

suppliers that Geske’s workers were “on strike” when none were.

C. Litigation Background

On the same day Geske filed its Complaint for Injunctive

Relief, it filed a motion for Temporary Restraining Order that was

heard by the state court. The motion was granted. In reievant part,

the TRO restrained Local 150 from:

(1) physically blocking ingress and egress of plaintiff's

employees, customers, and suppliers to and from plaintiff ’s

~ ve

facility at 4020 Northwest Highway, Crystal Lake, Illinois;

(2) threatening plaintiffs employees, customers and

suppliers; (3) publishing false and misleading statements,

oral or written, about Geske and Sons, Inc., to plaintiff's

employees, customers, and suppliers and to the public at

large, including, but not limited to placards, signs or

statements stating that the employees of plaintiff are on

strike; and (4) otherwise interfering with the contractual

relationships between plaintiff and its customers and

suppliers.

The next day, Local 150 removed the case from state court to

the United States District Court for the Northern District of Illinois.

Local 150 asserted that Geske’s Complaint alleged federal

questions. The district court disagreed. 26a. First, the judge

showed that Geske’s Trade Libel, Tortious Interference with

Contractual Relations, and Prospective Economic Advantage counts

“are causes of actions available under Illinois common law.” 27a.

Furthermore, the district court ruled that Local 150’s claim that the

state causes were “preempted” were claims entitled to be addressed

by the state court in the first instance: “[iJf so the state court can

dismiss the complaint, either because of preemption or for failure to

state a claim.” 28a. Local 150 did not appeal this ruling to the

Seventh Circuit.

Upon return of the case to state court, the state judge heard

testimony in support of Geske’s Motion for Preliminary Inianction.

It found that the litigation was not preempted, 16a. The court also

held that the standard of “libel per se where the plaintiff is a

corporation,” taken from Vee See, applied. There, the Illinois

Appellate Court held that “[t]o state a cause of action for libel per

se where the plaintiff is a corporation, the statements allegedly

defaming the plaintiff in its trade or business must assail the

corporation’s financial position or business methods, or accuse it of

fraud or mismanagement.” Vee See, 399 N.E.2d at 281.

P

Consequently, the trial court found that “the Sign, as indicated,

does not fall within that definition of trade libel as set forth in the

Vee See case....” 18a.‘

On appeal, the Appellate Court of Illinois, Second Judicial

District, held that “the Vee See standard was proper in this case

because the plaintiff was a corporation.” 7a. It rejected Geske’s

argument that the libel standard taken from Lowe Excavating Co. v.

International Union of Operating Engrs., Local 150, 180 Ill. App.

3d 39, 535 N.E.2d 1065 (2d Dist. 1989), applied “because the trade

libel in this case is in a ‘labor context’ as opposed to a traditional

corporate context.” 6a. It held that the Lowe court’s statement that

““‘whether the defendant, with actual malice, published a statement

with knowledge of its falsity, or in reckless disregard of the truth,’”

was applicable to labor disputes was judicial dicta, 6a, that “did not

define a new standard by which to judge a libel action brought by

a corporation” 7a (emphasis added). It reaffirmed the trial court’s

holding that “libel, where the plaintiff is a corporation, is clear: the

alleged defamation must assail the corporation’s financial position,

business methods, or accuse it of fraud or mismanagement.” 7a.

~ Furthermore, the Appellate Court believed that the union held

a “conditional privilege” to picket Geske, “protected by the NLRA.”

9a. As such, the Appellate Court ruled that in trade libel labor

dispute cases, “plaintiff must, then, establish that the defendant acted

with a desire to harm which was unrelated to the interest that he was

presumably seeking to protect.” /d (emphasis added).

The situation alleged here does not present an instance of

“outsiders intermeddling maliciously in the contracts or

affairs of other parties”....Additionally, we do not find

sufficient evidence ia the record of actual malice on the

part of the defendants to vitiate their conditional privilege.

“ On the same day the circuit denied the motion for preliminary injunction, it

allowed the filing of a Third Amended Complaint which is now being brought to

issue. 23a. The libel law developed to support the denial of the Preliminary

Injunction is at the heart of this Petition.

=

9a (emphasis added).

REASONS FOR GRANTING THE WRIT

I.

THE ACTUAL KNOWLEDGE OR RECKLESS

DISREGARD FOR THE TRUTH STANDARD OF

PROOF FOR TRADE LIBEL ARISING IN A “LA-

BOR CONTEXT” WAS ESTABLISHED BY THIS

COURT IN LINN V. PLANT GUARD WORKERS AND

CONFIRMED IN AUSTIN TO BE A UNIFORM

RULE THAT MUST BE FOLLOWED BY STATE

COURT’S TO AVOID FEDERAL PREEMPTION.

The Appellate Court of Illinois ruled that Lowe Excavating Co.

v. Int'l Union of Operating Engrs., Local 150, 180 Ill. App. 3d 39,

47-48 (2d Dist. 1989), was not the proper labor law trade libel

standard to apply in Illinois. Lowe adopted the libel standards

enunciated by this Court in Linn v. United Plant Guard Workers,

383 U.S. 53 (1966). The appellate court below, however, chose to

accept the elements of private corporate trade libel relied upon by

another Illinois appellate court in 1979 in Vee See Constr. Co. v.

Jensen & Halsiead, Lid., 79 Ill. App. 3d 1084, 399 N.E.2d 278 (lst

Dist. 1979). That case involved two corporate entities in which the

court held that “the alleged defamation must assail the corporation’s

financial position, business methods, or accuse it of fraud or

mismanagement.” 7a.

However, the corporate trade libel standard should have no

application to the situation at bar. A careful reading of the Vee See

standards show that it applies exclusively to situations of libel per

se in the financial arena: “[t]o state a cause of action for libel per

se where the plaintiff is a corporation, the statements allegedly

defaming the plaintiff in its trade or business must assail the

oo

corporation’s financial position or business methods, or accuse it of

fraud or mismanagement.” Vee See, 399 N.E.2d at 281.°

Federal labor law plainly preempts state libel per se standards.

The Court has always understood that federal labor rights would be

burdened by allowing per se libel standards in labor disputes and

ruled in Linn, 383 U.S. at 58, 65, that per se standards are preempt-

ed because state laws cannot account for intangible rights established

by federal labor law:

As we have pointed out, certain language characteristic of

labor disputes may be held actionable per se in some state

courts. These categories of libel have developed without

specific reference to labor controversies....We therefore

hold that a complainant may not recover except upon proof

of such harm, which may include general injury to reputa-

tion, consequent mental suffering, alienation of associates,

specifie items of pecuniary loss, or whatever form of harm

would be recognized by state tort law.

Linn, 383 U.S. at 65.

Therefore, to prevent interference “with effective administration

of national labor policy,” Linn, 383 U.S. at 64, this Court chose to

adopt the free speech test from New York Times v. Sullivan, 376

U.S. 254 (1964), and specifically to apply its “malice” test to labor

Cases:

* In a factually similar case, Wolf Street Supermarkets, Inc. v. McPartland, 108

A.D.2d 25, 487 N.Y.S.2d 442, 117 Lab. Cas. (CCH) 80,382 (App. Div. 1985), the

court considered a tortious interference with business relations claim against union

picketing and leafletting with false statements. The court adopted the Linn malice

standard of proof and found that a corporation's reputation can be damaged by

umon activity. “It could have shown by direct testimony from persons in the

community that the statements were understood by them to impeach the plaintiff's

integrity or business methods causing them to shop elsewhere.” /d. at 80,386. The

court below rejected this same contention made by Geske. 7a.

2.

Construing the [Labor] Act to permit recovery of damages

in a state cause of action only for defamatory statements

published with knowledge of their falsity or with reckless

disregard of whether they were true or false guards against

abuse of libel actions and unwarranted intrusion upon free

discussion envisioned by the Act.

Linn, 383 U.S. at 65 (emphasis added).

The Lowe court referred to the above passage in Linn, Lowe,

535 N.E.2d at 1071,° in adopting this test. Contrary to the court

below, this adoptive position was not merely an inartful “comment”

or legal “dicta” concerning the state of libel law in labor disputes as

the appellate court suggested, 6a, but an absolutely correct statement

of law. In fact, the appellate court’s observation that “the case law

pertaining to libel, where the plaintiff is a corporation, is clear,” 7a,

is itself directly contrary to the federally mandated balance achieved

by this Court in Linn and Austin, infra.’

° The appellate court stated in Lowe:

“The issue is whether defendant, with actual malice, published a

statement with knowledge of its falsity, or in reckless disregard for the

truth. While truth or falsity is an important element in the tort of trade

libel, it is certainly not the only issue to be considered. The issues of

injury to reputation and defendant's mental state must also be consid-

ona"

” The appellate court stated that Geske asserted the Lowe standard as the

correct legal standard “for the first time on appeal.” 6a. Geske respectfully submits

that the cbservation is not incorrect, but must still be allowed as the question raises

an issue of subject matter jurisdiction. In Geske’s very first motion to the trial court

(Plainuff's Motion for Temporary Restraining Order and Preliminary and Permanent

Injunction, dated Sept. 5, 1991), it argued that “{tJhe standard this appellate court

must apply is whether Defendants, with actual malice, published a statement with

knowledge of its falsity, or in reckless disregard of its truth, Lowe Excavating Co.

...”" Motion at S. In Geske’s opening brief on appeal, Geske argued “the trial court

erred as a matter of law when it applied Vee See and failed to apply the standard

of malice or reckless disregard for the truth set forth in the Second District opinion

in Lowe Excavating Co.....Therefore the trial court should be reversed.” Brief at 20,

dated Feb. 24, 1992. See also Complaint { 20.

: e

Any difficulty the appellate court might have had in reconciling

the traditional state trade libel elements with ihe Linn labor law

requirement was settled by the Court in Old Dominion Branch No.

496, Letter Carriers v. Austin, 418 U.S. 264 (1974) (“Austin’’).

There, a worker brought a libel action in state court against his

—————unton’s—publiely—naming him and other workers “scabs.” The

plaintiff prevailed on a standard of malice that equated “malice” with

the common law parlance of ill will and spite. Austin, 418 U.S. at

280-81. That, the Court ruled “reflects a fundamental misunder-

standing of the Court’s holding in Linn.” Jd., 418 U.S. at 281.

The Court’s decision completely occupies the field of labor

libel. Clearly, the Court replaced these state standards by issuing the

following affirmative statement concerning Linn:

The Court therefore found it necessary to impose substan-

tive restrictions on the state libel laws to be applied to

defamatory statements in labor disputes so as to prevent

“unwarranted intrusion upon free discussion envisioned by

the Act.” Linn, at 65, 86 S.Ct., at 644....Accordingly, we

held that libel actions under state law were pre-empted by

the federal labor laws to the extent that the State sought to

make actionable defamatory statements in labor disputes

which were published without knowledge of their falsity or

reckless disregard for the truth.

Austin, 418 U.S. at 272-73 (emphasis added).

Of course, the appellate court also said that recovery

would be permitted if the defamatory statements were

shown to have been made with malice. But the Court

was obviously using “malice” in the special sense it was

used in New York Times - as a shorthand expression of

the ‘knowledge of falsity or reckless disregard of the

truth” standard.

Austin, 418 U.S. at 281 (emphasis added).

-14-

Thus, the Illinois court’s Order broke down when it applied the

per se libel standard in the “corporate context” represented by Vee

See, 6a, to the “labor dispute” arena where Linn had “imposed”

application of the “malice/reckless disregard” standard of proof.’

This conflict is not isolated. It is mherent in the divergent view

taken by the states.

In Amalgamated Ass'n of Street, Elec. & Motor Coach Employ-

ees v. Lockridge, 403 U.S. 274, 2894, 296 (1971), this Court

recognized that “disparities in remedies and administration could

produce substantial conflict” where the “federal concern is pervasive

and its regulation complex.” Represented by the opinion below, the

state courts have not developed the law uniformly. They have

advanced in separate directions in response to the Court’s directions.

For example, in Hotel & Restaurant Employees, Local 681 v.

Anaheim Operating, Inc., 82 Cal. App.2d 337, 147 Cal. Rptr. 510

(Ct. App. 1978), the court recognized that the malice/reckless

disregard of the truth test in labor dispute defamation cases was

constitutionally required to prevent “SO different standards of

propriety during an organizational campaign.” This danger is

avoided if the states apply Linn uniformly to labor disputes.

This is the majority position, where the term “labor dispute”’ is

treated in the broadest sense. See Tosti v. Ayik, 386 Mass. 721, 437

N.E.2d 1062, 114 L.R.R.M. (BNA) 2558 (1982); Henderson v.

Teamsters, Local 313, 90 Wash. 2d 666, 585 P.2d 147, 99 L.R.R.M.

(BNA) 3472, 3474 (1978) (“the existence of malice is jurisdictional

and must be established to avoid federal preemption”). In Josti, the

Massachusetts Supreme Judicial Court read Linn and Austin to

mandate the New York Times standard in labor disputes. Moreover,

because subject matter jurisdiction was at stake, the issue could be

raised and considered any time. Jd. at 2560.

* At the time of Vee See, the Illinois courts had neither the reason nor the

power to extend its trade libel ruling to labor organizations, as unincorporated

organizations could not be sued in Illinois. American Fed'n of Technical Engrs. v.

LaJeunesse, 63 Ill. 2d 263, 266-67 (1976).

_— =

After remand for trial, the Tosti court considered the verdict in

light of the falsity involved and the damages awarded. Tosti v. Ayik,

394 Mass. 482, 476 N.E.2d 928, 108 Lab. Cas. (CCH) 77,638

(1985). Relying on Linn and Austin, 108 Lab. Cas. at 77,639, the

court ruled that “state courts may grant relief in such defamation

actions only if the defamatory statements were made with actual

malice, as defined in New York Times v. Sullivan {citation omitted].”

See also Dale v. Ohio Civil Serv. Employees Ass’n, 57 Ohio 3d 112,

567 N.E.2d 253, 136 L.R.R.M. (BNA) 2898, 2902 (1991) (common

law rule modified by Linn; standard also applies to public sector

labor disputes); OCAW v. Sinclair Oil Corp., 748 P.2d 283, 128

L.R.R.M. (BNA) 2709, 2713 (Wy. 1987) (observing that the Linn

Court “concluded that in the labor dispute context state libel

remedies were available only if a plaintiff could demonstrate actual

malice”); CWA v. Archibeque, 105 N.M. 635, 735 P.2d 1141, 125

L.R.R.M. (BNA) 2395 (1987) (same).

The appellate court below represents the contrary position. In

addition, other courts have concluded that the Linn malice test was

applicable in labor libel cases only “by analogy rather than by

constitutional compulsion,” Caruso v. Teamsters, Local 690, 33

Wash. App. 201, 653 P.2d 638, 111 L.R.IR.M. (BNA) 2927 (1982)

(damages awarded for “Don’t Patronize” articles in union press),

citing Linn, 383 U.S. at 65. In Oetzman v. Ahrens, 145 Wis. 2d,

560, 566, 427 N.W.2d 421, 424 (1988), a union official’s grievance

letter to management, led to a libel award of compensatory damages.

The Wisconsin Supreme Court narrowly construed the meaning of

“labor dispute” and ruled that “Linn’s vitality is limited to issues of

NLRB jurisdiction,” and where union elections and strikes are in

issue. 145 Wis. 2d at 566. “[W]hile Linn may be good precedent

on issues concerning the extent of the NLRB’s jurisdiction, it is of

little value as a guide to substantive law.” 145 Wis. 2d at 568.

Where a requirement of law is to show that a person “(a) knows

that the statement is false and that it defames another, (b) acts in

reckless disregard of these matters, or (c) acts negligently in failing

to ascertain them,” the Restatement (Second) of Torts § 580B,

comment 1, places liability on the defendant when there is a high

degree of awareness that the utterance is untrue:

_ e

Reckless disregard is held not to be measured by whether

a reasonable prudent person would have published the

statement without more investigation. Reckless disregard

is said to exist, however, when there is “a high degree of

awareness of...probable falseness” of the statement, or

there are “serious doubts as to [its] truth.” Availability of

sufficient time and opportunity to investigate the truth of

the statement is a significant factor in deciding whether the

publisher was negligent (see § 580B, Comment h), and it

may have some relevance in determining whether the

publisher acted with reckless disregard as to truth or

falsity.

Restatement (Second) of Torts § 580A, comment d.

“Before the test of reckless or knowing falsity can be met, there

must be a false statement of fact.” Austin, 418 U.S. at 284, ora

false representation of fact. /d. at 286. See Steinhilder v. Alphonse,

68 N.Y.2d 283, 501 N.E.2d 550, 123 L.R.R.M. (BNA) 2937, 2941

(1986) (calling a co-worker a “scab” may be either a statement of

opinion or a fact depending upon the circumstance). Here, the tale

told by respondents to Geske’s customers were total fabrications.

They were not equivocal statements or opinions, but a set of facts

absolutely untrue. Local 150’s claims that Geske was “out of

business” and Geske’s workers were themselves striking, is in utter

isolation of the only facts relevant to support such a public charge.

These allegations against Geske were facially false statements of fact

that represented evidence of actual malice or at least reckless

disregard for the truth, in the circumstances that Local 150 knew

were untrue or could ascertain the truth.

The union knows that a necessary element of a “strike” is the

existence of an employee-employer relationship and that this

relationship did not exist between Local 150 and Geske. Local 150

is a knowledgeable labor organization and is presumed to know that

a “strike” is a situation where employees refuse to-work for their

employer to coerce concessions to employees’ demands. See NLRB

v. Illinois Bell Telephone Co., 189 F.2d 124, 127 (7th Cir. 1951)

(“The term ‘strike’ is applied commonly to a combined effort on the

o iT.

part of a body of workmen employed by the same master to enforce

a demand.”). “After all, the labor movement has grown up and must

assume ordinary responsibilities. The malicious utterance of

defamatory statements in any form cannot be condoned, and unions

should adopt procedures calculated to prevent such abuses.” Linn,

383 US. at 63.

The courts have carefully affirmed the distinction between the

opinion portion of a statement and the fact portion of a statement as

the Restatement has done. /d. at 983. If part of a communication

is privileged and part is not, a defendant is liable for the unprivileg-

ed portion. § 599, Comment b. “If for any reason it is found to be

impossible to make a severance of the harm done, the privilege is

lost and the defendant is subject to liability for the total harm. §

605A, Comment b. Mittelman v. Witous, 135 Ill. 2d 220, 552

N.E.2d 973, 1983 (Sup. Ct. 1989) (mixed expression of opinion

actionable); Higgins v. Gordon, 433 N.W.2d 306 (Ct. App. IA 1988)

(explaining application of Restatement of Torts).

In this context, the appellate court’s refusal to adopt the New

York Times/Linn test was clear error and establishes a grave

precedent that will have immediate repercussions in the states.’

Since the action of the court below impermissibly intrudes on

the federal scheme that this Court in Linn carefully constructed to

“limit[] the availability of state remedies for libel to those instances

in which the complainant can show that the defamatory statements

were circulated with malice or caused him damage,” 383 U.S. at 64-

65, the Court should grant the Petition to resolve the conflicting

interpretation of federal law being made in the state courts and

* This is an important question in Illinois itself. Local 150 is involved in at

least three cases presently in which the First Question Presented is in issue: Geske

& Sons, Inc. (the instant case) v. Operating Engineers, Local 150, Lowe Excavating

Co. v. Operating Engineers, Local 150, No. 88-CH-034 (Illinois), and DiMucci

Construction Co. v. Operating Engineers, Local 150., No. 90-L-441 (Illinois). The

issue also arose in Virgil Jean v. William E. Dugan, 814 F. Supp. 1401, 1410 (N.D.

Ind. 1993) (Dugan is President of Operating Engrs., Local 150). Each case has

applied a different view of Linn.

= -

assure the supremacy of federal law under the Supremacy Clause of

the Constitution, Art. VI, Sec. 2.

Il. THE APPELLATE COURT’S RULING THAT

HELD FACIALLY UNTRUE LANGUAGE CANNOT

BE ENJOINED CONFLICTS WITH DECISIONS IN

OTHER STATES THAT ALLOW UNION FALSE

STATEMENTS OF FACT TO BE RESTRAINED

Just as the this Court recognized years ago that a union has a

privilege to conduct “limited recognitional picketing,” Sears,

Roebuck & Co. v. San Diego County Dist. Council of Carpenters,

436 U.S. 180 (1978), this Court has recently ruled that the privilege

does not extend to nonemployee union organizers who engage in

tortious activity. Lechmere v. NLRB, 112 S. Ct. 843, 846-47 (1991).

In Lechmere, the NLRB attempted to impair an employer’s

property rights by allowing organizers to march upon it. The Court

ruled that an employer did not lose its property rights when non-

employees attempt economic action against it. Moreover, the Court

recognized a “critical distinction between the organizing activities of

employees (to whom § 7 guarantees the right of self-organization)

and nonemployees (to whom § 7 applies only derivatively),” 112 S.

Ct. at 846. In these cases, “the trespasses of nonemployee union

organizers are ‘far more likely to be unprotected than protected.’”

Id.

In the present case, the decision of the California Supreme

appellate court in Magill Bros., Inc. v. Building Serv. Employees’

Int’l Union, 20 Cal. 2d 506, 127 P.2d 542 (1942), is persuasive

authority that untruthful language may be enjoined in labor disputes.

There, the union attempted to organize the employer’s workers

without an election, id. When the employer refused to sign a

contract based solely upon the union’s demand for recognition, the

union began picketing with signs stating: “This house on strike.

AFL.”

- 19.

The employer brought an action for preliminary injunctive

relief. Id. at 543. “The sole issue, therefore, is whether the trial

court erred in denying injunctive relief in a case where it found that

the banners and signs carried by the pickets conveyed false and

untrue information to the general public.” Jd. Also United Farm

Workers v. Superior Court, 4 Cal. 3d 554, 483 P.2d 1215, 77

L.R.R.M. (BNA) 2208, 2216-17 (1971) (untruthful picketing

Statements enjoinable).

The Supreme Court of California held that “{t]here can be no

doubt that untruthful picketing is unlawful picketing.” Magill, 127

P.2d at 543. It further found that,

here is not the utterance of false statements which is

sought to be enjoined, but the conduct of picketing in an

unlawful manner. The mule in this regard is analogous to

the principle that while equity will not ordinarily enjoin

activity which is criminal in nature, neither will it refuse

to act where an independent ground for relief is presented

merely because the acts sought to be enjoined are criminal.

See 5 Pomeroy, Equity Jurisprudence, Equitable Remedies,

2d Ed. § 2050, p.4630. Despite theoretical criticism and

despite the fact that the publication of false statements

alone will not justify equitable relief, it is the nearly

unanimous rule throughout the country that equity will

intervene where false or fraudulent statements are com-

bined with picketing and where, under local policy, this

renders the picketing illegal.

127 P.2d at 544 (emphasis added).

Thus, the Magill court held that “[tJhe right to restrain the use

of false or untruthful statements made in connection with picketing

does not restrict the right to picket peacefully and honestly.” 127

P.2d at 545. As Geske has argued here, it sought to enjoin the

union’s conduct of engaging in false publications, not in utterly

restraining the union’s right to picket or to inform the public

truthfully that unionization is best for Geske’s workers.

« 2 «

As the Austin Court clarified, there are many ugly statements a

union may make under federal law. However, the same law

removes its shield when the union is not providing opinionated

statements to the public, but is providing the public with factually

false information that the union knows is untrue or is in reckless

disregard for the truth. Where Local 150 has supplemented its “On

Strike” signs with utterances to the public that it was Geske’s own

employees that were on strike, state court’s are not powerless to stop

the publications that are defamatory in nature."°

Consequently, the present order of the Illinois appellate court

places Illinois court’s at odds with the jurisprudence developed post-

Linn in other states and fails to protect the important property

interests of neutral employers and workers. The failure of the

appellate court below to consider these factors in failing to use the

proper legal standards in deciding whether to grant injunctive relief

for the factual statements/misconduct aspects of Local 150’s acts, is

grave error that requires this Court’ supervision to correct.

'© This case would be much different if Local 150 informed customers that it

was “acting on behalf of its members, to unionize the plaintiff's workplace,” as the

appellate court suggests. 9%a. However, publicizing the truth would not provide

Local 150 with the desired attempt to sufficiently injure Geske financially into

recognizing Local 150. As the testimony in the circuit court reflects, the public will

respect a picket line set up by employees, but is likely to cross lines set up by the

union for recognitional or area standards purposes. Tr. Vol. II at 142-44.

ee

CONCLUSION

For these reasons, Petitioner respectfully requests that a writ of

certiorari issue to review the judgment of the court of appeals.

Respectfully submitted,

Gerard C. Smetana*

LAW OFFICES OF

GERARD C. SMETANA

333 West Wacker Drive, Suite 1015

Chicago, Illinois 60606

(312) 357-0250

Michael E. Avakian

CENTER ON NATIONAL LABOR

POLICY, INC.

5211 Port Royal Road, Suite 103

North Springfield, VA 22151

(703) 321-9180

*Attorney of Record for Petitioner

Dated: October 1, 1993

ga eaten pale

la

No. 2-91-1169

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

This Order Is Not Precedential

And Is Not To Be Cited

GESKE & SONS, INC., ) Appeal from the Circuit Court

) of McHenry County.

Plaintiff-Appellant, )

)

v. ) No. 91-CH-273

)

INTERNATIONAL UNION )

OF OPERATING ENGINEERS, )

NO. 150; CHUCK AUGUST, _)

et al, ) Honorable

) Michael J. Sullivan

Defendants-Appellees. ) Judge, Presiding.

ORDER

The plaintiff, Geske & Sons, Inc., appeals from a September 27,

1991, directed finding by the trial court for the defendants, the

International Union of Operating Engineers Local No. 150 and

Chauffeurs, Teamsters and Helpers Local Union No. 301, denying

the plaintiff's requested injunctive relief. The plaintiff argues on

appeal that (1) the court used the wrong corporate libel standard; (2)

the court’s finding that the “on strike” language on the picket signs

did not assail the plaintiff's business methods or financial condition

was against the manifest weight of the evidence; (3) the court’s

finding that there was no tortious interference with contractual

relations and prospective advantage was against the manifest weight

of the evidence; and (4) the court erred in finding that the Illinois

Anti-Injunction Act (Ill. Rev. Stat. 1991, ch. 48, par. 2 (a)) barred

injunctive relief.

The plaintiff is a corporation engaged in the business of asphalt

paving and the manufacture of asphalt mix for sale to commercial

customers. The plaintiff is an open shop employer and its employ-

ees are not represented by any labor union. The defendants are

labor organizations that represent operating engineers of heavy

excavating and earth moving equipment and drivers who haul

material.

On September 5, 1991, the plaintiff filed both its original and

its amended verified complaints for a temporary restraining order,

for preliminary and permanent injunctions, and for damages against

the defendants. The plaintiff alleged that the defendants had

committed trade libel against it by picketing at the plaintiffs plant

with false “on strike” signs. Additionally, the plaintiff alleged that

the defendants committed tortious interference with contractual

relations and tortious interference with prospective economic

advantage by interfering with the loading and unloading of material

and threatening and intimidating customers who attempted to

conduct business with the plaintiff.

On September 5, 1991, the plaintiff obtained a temporary

restraining order against certain alleged conduct by the defendants.

On September 6, 1991, the defendants filed a petition of removal to

the United States District Court for the Northern District of Illinois.

In their petition, the defendants asserted that the plaintiff alleged

cognizable claims under federal law, or, alternatively, against

conduct protected by the National Labor Relations Act (NLRA)(29

U.S.C. 151, et seq. (1982)). The federal court remanded the

plaintiff's complaint, concluding that the complaint did not contain

a federal claim and was, therefore, not subject to removal.

On September 12, defendant Local 150 moved to dismiss the

plaintiff's claims on the ground that the claims were preempted by

federal law or, alternatively, that the Illinois Anti-Injunction Acct (Ill.

Rev. Stat. 1991, ch. 48, par. 2(a)) precluded injunctive relief. After

hearing oral argument on September 16, 1991, the court denied

Local 150’s motion to dismiss, and stated that the issue of the

Anti-Injunction Act was premature.

3a

On September 27, 1991, after an evidentiary hearing, where the

plaintiff presented approximately 18 witnesses, the court granted a

directed finding for the defendants pursuant to section 2-1110 of the

Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1110).

The plaintiff appeals from that directed finding.

The following pertinent testimony underlies the plaintiff s claims

against the defendants. On August 19, 1991, the defendants’

picketers stationed themselves in front of the piaintiff's asphalt plant

with picket signs. The signs stated that “I.U.O.E. Local 150 On

Strike against Geske For Recognition As Majority Bargaining

Representative of Company’s Operating Engineer Employees.” The

“on strike” language was in large bold red letters while the balance

of the words on the signs were handwritten in a fraction of the “on

strike” size.

On that same date, two of plaintiff customers, Performance

Paving and All American Asphalt Maintenance (All American)

attempted to obtain asphalt from the plant. When Performance

Paving pulled a truck up to the plant, the picketers stood in front of

the truck and stated to the driver, “Geske employees are on strike,

why don’t you go to [Geske’s competitor].” The driver turned around

and left the plaintiff's plant without asphalt. The same statement

was made by a picketer to All American drivers, and to its owner.

Some picketers held up lit lighters and told an All American driver

that they knew where he parked his truck in Mundelein. The All

American drivers left the plant without hauling any asphalt.

The picketers also followed those trucks that crossed their

picket lines. There was testimony that the picketers sometimes

drove several feet behind the trucks, at up to 55 miles per hours.

Also, there was testimony that the picketers drove very closely both

in front and behind the loaded trucks. There was also testimony

describing various intimidating behavior on the part of the picketers,

and threats made to customers that if they used the services of the

plaintiff, they too would be picketed by the defendants.

4a

The plaintiff alleges that as a result of the picketers’ unlawful

activities, 60% of the plaintiff's regular credit customers now refuse

to do business with it. Additionally, the plaintiff asserts that its

aggregate and cartage suppliers now refuse to do business with the

plaintiff.

The defendants argue, at the outset, that the Plaintiff's claims

for injunctive relief are preempted by section 8 of the National

Labor Relations Act (NLRA) (29 U.S.C. 158 (b)(7)(1982)). This

provision requires preemption whenever conduct complained of is

“arguably subject” to the jurisdiction of the National Labor Relations

Board (NLRB). (Lowe Excavating Co. v. International Union of

Operating Engineers Local No. 150 (1989), 180 Ill. App. 3d 39, 44).

However, there is an exception to preemption when the State’s

interest outweighs any peripheral federal concern or “where the

regulated conduct touches iterests so deeply rooted in local feeling

and responsibility that, in absence of compelling congressional direc-

tion, we could not infer the Congress had deprived the States of the

power to act.” (Lowe, 180 Ill. App. 3d at 45, citing San Diego

Building Trade Council, Millmen’s Union, Local 2020 v. Garmon

(1959), 359 U.S. 236, ,3 L.Ed2d 775, , 79 S. Ct. 773, .)

Restated, if the risk of interference by State involvement is minimal

and the activity in question is only a peripheral concern of the

NLRB, the matter is not preempted, and the State may proceed.

Lowe, 180 Ill. App. 3d at 45.

The United States Supreme Court, in the case of Linn v. United

Plant Guard Workers of America, Local 114 (1966), 383 U.S. 53,

__, 15 L.Ed.2d 582, __, 86 S.Ct. 657, __, specifically held that the

State’s interest in redressing malicious libel is so deeply rooted in

local feeling and responsibility that it fits within the exception

specifically carved out by Garmon, and that such claims are

therefore not preempted. See also Fisher v. Illinois Office Supply

Co. (1984), 130 Ill App. 3d 996, 999-1000; Krasinski v. United

Parcel Service, Inc. (1988), 124 Ill. 2d 483, 493-94.

The defendants argue on appeal, that in contrast to ordinary

libel actions, the plaintiff in the case at bar is asking the State court

5a

to determine whether the defendants falsely picketed by merely

“implying” that its employees were on strike, thus injecting the court

directly into the merits of a labor controversy. However, the

underlying issue in this case is not whether the defendants are

entitled to picket, thereby forcing the employees or employers to

recognize the defendants as a bargaining representative, but rather

whether the defendants committed trade libei. These issues are only

of peripheral concern to the NLRB. (See Krasinski, 124 Ill. 2d at

493.) We therefore find that this cause of action fits into the excep-

tion carved out by Garmon and therefore, we find that we are not

preempted by the jurisdiction of the NLRB.

We next address the merits of the plaintiff's arguments on

appeal. Pursuant to section 2-1110 of the Code of Civil Procedure

(Ill. Rev. Stat. 1991, ch. 110, par. 2-1110) in all cases tried without

a jury, a defendant may, at the close of the plaintiff's case, move for

a directed finding. (Dyduch v. Crystal Green Corp. (1991), 221 Ill.

App. 3d 474, 477.) In ruling on a motion for a directed finding, the

court must first determine if the plaintiff has presented a prima facie

case and enter judgment for the defendant if the plaintiff has, failed

to do so. (Dyduch, 221 Ill. App. 3d at 477.) If a plaintiff has

presented a prima facie case, the court must weigh the evidence,

including any favorable to the defendant, pass on the credibility of

the witnesses, draw reasonable inferences and generally consider the

weight and quality of the evidence. Dyduch, 221 Ill. App. 3d at

477.) The decision of the trial court to grant a defendants’ motion

for a directed finding will not be reversed on review unless it is

against the manifest weight of the evidence. Dyduch, 221 Ill. App.

3d at 477.

In order to obtain preliminary injunctive relief, the trial court

must determine, among other factors, the likelihood that the plaintiff

will succeed on the merits of the claim. (Handy Andy Home

Improvement Centers, Inc. v. American National Bank and Trust Co.

(1988), 177 Ill. App. 3d 647, 652.) In the case at bar, the trial court

denied the preliminary injunction on the basis of this consideration;

it found that the plaintiff had little likelihood of success on the

merits of its claims.

6a

In the court’s determination of the plaintiff's likelihood of

success on the merits of its libel claim, the court applied the test for

corporate trade libel set forth in Vee See Construction Co. v. Jenson

and Halstad, (1979), 79 {ll. App. 3d 1084, 1088. The court noted

that the plaintiff argued that this was the proper standard to use in

the instant case. The standard in Vee See requires that “the

statements allegedly defaming the plaintiff in its trade or business

must assail the corporation’s financial position or business methods,

or accuse it of fraud or mismanagement.” (Vee See, 79 Ill. App. 3d

at 1088-89.) The court found that the “on strike” signs and any

reasonable extension of what the signs read could not be thought to

assail the corporation’s financial position or its business methods, nor

did it accuse the plaintiff of any type of fraud or mismanagement.

The plaintiff argues, for the first time on appeal, that the court

applied the wrong trade libel standard, asserting that the court should

have applied the standard of malice or reckless disregard for the

truth as set forth in Lowe Excavating Co. v. International Union of

Operating Engineers Local 150 (1989), 180 Ill. App. 3d 39, 47-48.

The plaintiff argues that this libel standard should apply here

because the trade libel alleged in this case is in a “labor context” as

opposed to a traditional corporate context.

In Lowe, a plaintiff employer sued a defendant union to enjoin

the defendant from picketing with placards that purportedly con-

tained false statements. (Lowe, 180 Ill. App. 3d at 43.) The sole

issue in front of the Lowe court was whether the trial court’s

determination of federal preemption was proper. (Lowe, 180 Ill.

App. 3d at 43.) In explaining why the issue im that case was only

of peripheral concern to the NLRB, but of great concern to the State,

thereby precluding preemption, the court stated in dicta that the issue

facing the lower court was not a labor law question, but “whether

the defendant, with actual malice, published a statement with

knowledge of its falsity, or in reckless disregard for the truth.”

Lowe, i80 Ill. App. 3d at 47-48.

The Illinois Supreme Court has stated that the precedential

scope of a decision is limited to the facts before the deciding court.

Ta

(Board of Trustees of Police Pension Fund v. Illinois Human Rights

Comm'n (1986), 141 Ill App. 3d 447, 455.) General expressions

in a court’s opinion which go beyond what is necessary to decide a

case are entitled to respect; however, such expressions are not

binding authority. Board of Trustees, 141 Ill. App. 3d at 456.

When read in context, the Lowe court’s comment did not define

a new standard by which to judge a libel action brought by a

corporation. The court merely inartfully attempted to point out that

the issue in the lower court did not require interpretation of a labor

dispute controlled by federal law, but only a determination of

whether the picket signs constituted libel. The case law pertaining

to libel, where the plaintiff is a corporation, is clear: the alleged

defamation must assail the corporation’s financial position, business

methods, or accuse it of fraud or mismanagement. See Harris Trust

& Savings Bank v. Phillips (1987), 154 Il. App. 3d 574, 579;

American International Hospital v. Chicago Tribune (1985), 136 II.

App. 3d 1019, 1025; Audition Division, Lid v. Better Business

Bureau (1983), 120 Ill. App. 3d 254, 256; Vee See, 79 Ill. App. 3d

at 1088-89.

The plaintiff argues that even if the Vee See standard of libel

is used, the court’ s finding that the picket signs did not constitute

libel was against the manifest weight of the evidence. The plaintiff

further argues that if Vee See is the proper standard, it should be

more liberally applied because this case is in a labor context.

We find that the Vee See standard was proper in this case

because the plaintiff was a coporation. We also are not convinced

by the plaintiff that the Vee See standard should be interpreted

differently because this is a labor context. Lastly, we do not find

that the court’s determination, that the “on strike” signs were not

libelous, was against the manifest weight of the evidence. See

Dyduch, 221 Ill. App. 3d at 477.

The plaintiff next argues that the court’s finding that the

defendants did not tortiously interfere with its contractual relations

and prospective economic advantage was against the manifest weight

8a

of the evidence. The plaintiff notes the court’s finding that the

evidence established that there was a certain level of interference by

the defendants, but that the interference was not wrongful, unlawful,

or violent. The plaintiff, however, asserts that there is no require-

ment that tortious interference be unlawful, wrongful or violent to

constitute a tort, and that the defendants tortiously interfered with it

by the “misrepresentations” on their signs and by harassing the

plaintiff's customers. The defendants argue that their conduct of

“recognitional picketing” is protected, and is, therefore, not unjusti-

fied or wrongful.

The court found that there was no significant evidence of any

unlawful trespass on the part of the defendants, that the defendants

were not doing any unlawful act by following trucks that left the

plaintiffs plant, and that stopping customer trucks to talk to drivers

did not constitute wrongful interference. The court also found that

there was no evidence of threats of violence to any person.

In an action for tortious interference with prospective economic

advantage, the plaintiff must prove (1) his reasonable expectation of

entering into a valid business relationship; (2) the defendant’s

knowledge of the plaintiff's expectancy; (3) purposeful interference

by the defendant that prevents the plaintiffs legitimate expectancy

from ripening into a valid business relationship; and (4) damages to

the plaintiff resulting from such interference. (Fellhauer v. City of

Geneva (1991), 142 Ill. 2d 495, 511.) The elements for an action of

tortious interference with contractual relations are similar. They

require that the plaintiff establish, as a substitute for the third

element, that the defendant intentionally and without justification

induced a breach of contract; and they [sic] adds an additional

element of “a subsequent breach by the third party caused by the

defendant’s wrongful conduct.” Certified Mechanical Contractors v.

Wight & Co. (1987), 162 Ill. App. 3d 391, 398.

The law recognizes that in many cases, a third party may be

privileged to interfere with existing contractual relations (Certified

Mechanical, 162 Ill. App. 3d at 400), and to interfere with a

prospective economic advantage (see Fellhauer, 142 Ill. 2d at 512).

9a

A third party is conditionally privileged when acting to protect a

conflicting interest that is considered, under the law, to be of equal

or greater value than the plaintiffs rights. However, the third party’s

acts must be legal and must not be unreasonable under the circum-

stances. (Certified Mechanical, 162 Ill. App. 3d at 400.) If conduct

of a third party is conditionally privileged, the plaintiff must prove

actual malice; the plaintiff must, then, establish that the defendant

acted with a desire to harm which was unrelated to the interest that

he was presumably seeking to protect. Certified Mechanical, 162 II.

App. 3d at 401.

In the instant case, the activity of the defendant labor unions,

namely, limited recognitional picketing, is protected by the NLRA.

(See 29 U.S.C. 157-158 (1982); Sears, Roebuck and Co. v. San

Diego County District Council of Carpenters (1978), 436 U.S. 180,

194 n.24.,_ LEd_,_ S.Ct.__) Also, a conditional privilege

to lawfully interfere exists where a union is acting on behalf of its

members. (See Santucci Construction Co. v. Baxter & Woodman

(1987), 151 Il. App. 3d 547, 554 citing Connaughton v. Gertz

(1981), 94 Ill. App. 3d 265, 270.)

The situation alleged here does not present an instance of

“outsiders intermeddling maliciously in the contracts or affairs of

other parties.” (Fellhauer, 142 Ill. 2d at 513.) Here, the defendants

were acting on behalf of its members, to unionize the plaintiff's

workplace. The defendants’ “on strike” signs were not of a libelous

nature, and cannot be the basis of a tortious interference claim.

Furthermore, activities of the picketers were peaceful and lawful.

Taking the above factors into consideration, we find that under

the circumstances the labor union was conditionally privileged to

lawfully interfere with the contractual agreements and prospective

economic advantage of the plaintiff. (Certified Mechanical, 162 Ill.

App. 3d at 400-401.) Additionally, we do not find sufficient

evidence in the record of actual malice on the par: of the defendants

to vitiate their conditional privilege. (Certified Mechanical, 162 Ill.

App. 3d at 401.) For the above reasons, we do not find that the

court’s determination that the defendants were not guilty of tortious

10a

interference with contractual relations and prospective economic

advantage was against the manifest weight of the evidence. Dyduch,

221 Ill. App. 3d at 477.

The parties also address the issue of whether the cause of action

is barred by the Illinois Anti-Injunction Acct (Ill. Rev. Stat. 1991, ch.

48, par. 2(a)). We do not address this issue, as we affirm the court’s

dismissal on other grounds.

For the foregoing reasons, the judgment of the circuit court of

McHenry County is affirmed.

Affirmed.

GEIGER, J., with UNVERZAGT and WOODWARD, JjJ.,

concurring.

lla

CIRCUIT COURT FOR THE 19TH JUDICIAL CIRCUIT

STATE OF ILLINOIS } GEN. NO. 91 CM 273

COUNTY OF MCHENRY } SS_ QO Jury ® Non-Jury

GESKE & SONS, INC.,

pitf. FILED

VS. McHENRY COUNTY, ILLINOIS

SEP 27, 1991

TUOE LOCAL 150, and VERNON W. KAYS, JR.

TEAMSTERS Local 301 CLERK OF THE CIRCUIT COURT

Date 9/27/91 Plaintiff's Gerard C. Smetana Defendant’s Dale D. Pierson

Attorney David LeSeur__ Attorney Harold McKenney

ORDER

This matter coming to be heard upon Defendants’ Motion to

find in their favor under § 2-1110 at the close of Plaintiff's evidence

in support of their Motion for Preliminary Injunction, and the Court

being fully advised, it is hereby ORDERED that for the reasons

stated in open court Defendants’ Motion is granted, and Plaintiffs’

Motion for Preliminary Injunction is denied.

Plaintiff's motion, subsequent to the court’s denial of Motion for

Preliminary Injunction, to file 3d Amended Complaint, is granted,

and it may be filed instanter.

Prepared by: Dale D. Pierson

Attorney for: TUOE, Local 150

Attorney Registration No. C000200 Judge /s/ Michael J. Sullivan

12a

S.28931

STATE OF ILLINOIS )

)

COUNTY OF MCHENRY )

IN THE CIRCUIT COURT FOR THE

NINETEENTH JUDICIAL CIRCUIT

MC HENRY COUNTY, ILLINOIS

GESKE & SONS, INC.,

Plaintiff,

v. No. 91-CH-273

INTERNATIONAL UNION OF

OPERATING ENGINEERS,

LOCAL NO. 150 AND

CHAUFFEURS, TEAMSTERS

AND HELPERS, LOCAL

UNION NO. 301,

Nee Nee eee eee eee ee ee “ee” ee” eS”

Defendants.

REPORT OF PROCEEDINGS had and testimony taken at the

trial of the above-entitled cause, before the Honorable Michael J.

Sullivan, Judge of said Court, at the McHenry County Government

Center, 2200 North Seminary Avenue, Woodstock, Illinois, on the

27th day of September, A.D. 1991, at the hour of 10:00 o’clock a.m.

Page 1366

THE COURT: I apologize for being a little later than I said, but

there was more stuff here to read than I thought at the time; and

13a

while counsel, you know, deal in the labor vineyard all the time, it

is not something that the Court necessarily does.

The Court had to consider your arguments and really figure out

what it is doing and why it is here today and what the purpose of

this proceeding is.-

We are here and the Court has been hearing testimony with

regard to a preliminary injunction that was entered previously in this

case.

The Court has heard testimony on behalf of the plaintiff. The

plaintiff has rested, and we are here now on the defendants’ motion

for a directed verdict or a directed finding at the end of the plaintiff's

case.

As has been pointed out previously, there is a provision under

the Code of Civil Procedure of the State of Illinois involving

motions in non-jury cases, to find for defendant at the close of the

plaintiff's evidence. It’s Section 2-1110.

And the section of the statutes says, “In ruling on the motion,

the Court shall weigh the evidence, considering the credibility of the

witnesses and the weight and quality of the evidence.”

The action that is before the Court on the complaint, the

complaint as amended by the plaintiffs, seeking injunction, injunc-

tive relief and other ancillary relief, basically, on three bases, three

different counts of tort in the State of Illinois, 1, trade libel, on the

other tortious interference with prospective economic advantage and

the tortious interference with economic advantage, present tense.

There has been mention before by both parties of an earlier case

deciding in the Second Appellate District, in which myself as

presiding judge was involved, and one of the parties, the Local 150.

The present plaintiff, Geskes, were not involved, but counsel

Smetana and Pierson were involved, that being the Lowe, L-o-w-e,

Excavating Company versus Local 150.

14a

But for the change of parties, to a certain extent, this matter

before the Court is how [sic] revisited, only Part 2.

In that case, this Court granted -- I don’t remember the exact

nature of the motion -— but I think a motion finding that the

activities that were being conducted at that time were preempted by

federal law or regulations; and then that matter went to the Second

District Appellate Court, from whence it was reversed and remanded;

and J know, I think one or both counsel had told me it went

elsewhere; but, in any event, we are here with regard to the findings

of the Second District Appellate Court.

In that case, the Appellate Court, as has been indicated before,

and I have the 535 Northeast Second Reporter, Second Series, the

case beginning at 1065, and at 1068, the Appellate Court has

indicated the sole issue on appeal is whether the National Labor

Relations Act deprived the State Court of jurisdiction to enjoin the

union from picketing with placards containing knowingly false

statements or statements made in reckless disregard to the truth.

And then the Court, in that case, cites the elements which a

Trial Court should consider in deciding whether to issue a prelim-

inary injunction; and also on Page 1068, it cites three standards: 1,

the possibility of wreparable harm to the plaintiffs legal nghts

pending the outcome of the trial if the preliminary injunction does

not issue; 2, the potential irreparable harm to the defendants’ night if

it does; and, third, the plaintiffs likelihood of success on the merits;

and for those propositions, it cites a 1987 Supreme Court of Illinois

case, Kanter, K-a-n-t-e-r, versus Eisenberg, E-i-s-e-n-b-e-r-g, versus

Mattson & Associates, at 116 Illinois 2d, 506.

But it goes on to indicate that the issue before the Court in

Lowe in the Appellate Court was not whether the Court abuses its

discretion in denying the request for the injunction, but whether its

refusal to exercise jurisdiction or discretion was proper.

And then it goes in and discusses the question of preemption;

and on Page i069, it talks about the second type of federal pre-

15a

emption, which eventually it said, I think, didn’t apply, and then

which is, it said, “The second type of federal preemption requires

preemption whenever the conduct complained of,” and then in

quotes, in open quotes, ‘arguably subject,’” close quotes, “to the

jurisdiction of the National Labor Relations Board.” It goes on to

say, in open quotes, “‘However, even if the claim involves state

torts that are arguably subject to jurisdiction of the NLRB.’”

The Court in Garmon, which is G-a-r-m-o-n, noted an exception

to preemption, “When the State’s interests outweigh any peripheral

federal concern or where the regulated conduct touched interests so

deeply rooted in local feeling and responsibility that, in the absence

of compelling Congressional discretion, we could not infer that

Congress can deprive the State of the power to act.”

And that case, again, was involving a request for injunction and

the complaint alleged tortious interference with contractual relation-

ships, tortious interference with prospective economic advantage,

trade libel and negligent interference with a contractor.

The sign in that case that was the subject of the suit was a red,

in quotes, “Notice to the Public: Lowe Excavating does not pay the

prevailing wages and economic benefits for operating engineers

——_—which are standard in this area. Our dispute concerns only substan-

dard wages and benefits paid by this company, Local 150, Interna-

tional Union of Operating Engineers, AFL-CIO,” close quotes.

The Appellate Court in Lowe also noted that the Illinois

Supreme Court held that an action in State Court for defamation is

not preempted by the jurisdiction of the NLRB, and they cite at

Krasinski, K-r-a-s-i-n-s-k-i, versus United Parcel Service, a 1988

case, 124 Illinois 2d at 483.

The Appellate Court found that, as far as the preemption went,

that case, the Lowe case, fell into the exemption cited by Garmon.

And then, as alluded to by Mr. Smetana, the Appellate Court,

on Page 1071 of the Lowe decision, stated, as follows:

l6a

“The underlying issue in this case is not whether plaintiff paid

wages sufficient to meet area standards, the issue is whether

defendant, with actual malice, published a statement with knowledge

of its falsity or in reckless disregard for the truth. While the truth

or falsity is an important element in the tort of trade libel, it is

certainly not the only issue it be considered. The issues of injury to

reputation and defendants’ mental state must be considered.”

The Appellate Court also went on to indicate -— and | think it’s

important with regard to this case -- that the defendant next contents

[sic] that the State of Illinois had enforced [sic] the Anti-Injunction

Act that is applicable. The Appellate Court noted that the Act may

or may not apply. The issue was not before that Court, and the Tnal

Court could not reach the issue; therefore, the question of whether

or not the Anti-Injunction Act applied in the Lowe case is not ripe

for review.

In the Lowe case, finally what happened is the Appellate Court

remanded to the Circuit Court of McHenry County this case to

review the plaintiff's motion for a preliminary injunction consistent

with the opinion.

That’s why I say it’s sort of Lowe Part 2, because that’s where

we are, at the stage of preliminary injunction, in determining

whether or not one should be granted.

The Lowe case, a Second Appellate District case, sets forth the

issues before the Court on a preliminary injunction, and another

injunction case heard by this Court, the Second District, a 1988 case,

Handy Andy Home Improvements versus American National Bank,

which is found at 177 Illinois Appellate 3d, 674.

It just reiterates those standards, and I am just indicating that,

as set forth in that Kanter versus Eisenberg case, the three standards,

and those are basically the standards that I have applied.

Some of the other things I think are peripherally involved, but

some of the ones that have a little more detail, are basically

17a

temporary restraining order cases; and here, since both sides have

had an opportunity to be present, and even at this point defendant

has not presented any evidence. They have had an opportunity to

cross examine

I am going to take those standards in reverse order and deal

with first the likelihood of plaintiff's success on the merits, and in

looking at the trade libel count first.

I note that, basically, this Court has to determine and look at

things that are of interest to the State, in protectable interest of the

State, as indicated in the cases cited in Lowe and cases that we have

talked about here.

Both counsel have at various times cited the Court to the

VeeSee Construction, that’s V-e-e-S-e-e, Construction versus Jensen

and somebody else. The case is found at 79 Illinois Appellate 3d,

1084, and at Pages 1089 to 90.

The Appellate Court in that case stated -- this is not an absolute

quote, but close to it - the stated cause of action or libel per se

where the plaintiff is a corporation, the statement must be allegedly

defaming the plaintiff in its trade or business, must assail the

corporation’s financial position or business methods or accuse it of

fraud or mismanagement, and that case has been cited by both the

plaintiff and the defendant to this point.

The Court has to review the matters before the Court.

The Court was going to say, somewhat prefatory before that,

you know, the matter before it and the issues before it the Court

finds to be, in general, a troubling area, personally; but I’m not here

personally, I’m here to try to apply the law as I can, and if we were

in a perfect world, we possibly wouldn’t have such conflict; but we

are not, and the Court has to deal with issues as they are in the law

and life as it is and do the best that it can to apply the law to the

facts.

18a

The sign that is in question in this case, the placard, which is,

I think, the only written statement we really have here, and I am

referring to Plaintiff's Exhibit No. 1, a photograph of a sign that

reads, “ITUOE Local 150,” in bold letters, “On Strike,” and in smaller

letters, against, and then in a printed form, the word, “Geske,”

G-e-s-k-e, and then back to printed, “for recognition,” and the next

word is, “as majority bargaining representative of company’s

operating engineer employees.” The sign is white, with red printing,

except for the word “Geske,” which is — when I say “printing,” |

mean printed as opposed to handwritten. The word “Geske” is

handwritten, and it’s like a black or blue ink.

The Court must look to the sign, and to determine whether or

not it falls within the area of the trade libel standard; and the Court

has heard and considered the explanation as to how that standard

applies, made by Mr. Smetana; but the Court believes that the sign,

as indicated, does not fall within that definition of trade libel as set

forth in the VeeSee case; that it does not — and I don’t think any

reasonable extension of what it says could be thought to assail the

corporation’s financial position or business methods or accuse it of

fraud or mismanagement.

And I would say peripherally — and | think that maybe |

shouldn’t say anything because the case is pending before me — but

I don’t think that the sign in Geske does by any reasonable interpre-

tation indicate a trade libel against Geske, and I believe that the

likelihood of success on the merits as to that count is small.

The issue was to tortious interference with contractual rela-

tionships and tortious interference with prospective advantage. I did

note that, you know, Counsel for plaintiff, in talking about this,

talked about interference with contractual relationships, but it has to

be a tortious or a wrongful interference with contractual relation-

ships.

Also, in commenting on some of the matters, first of all, there

is no evidence in the record, as has been pointed out, with regard to

19a

-- at least there is nothing that | recall -- as to violence, and | think

that’s been conceded.

The only question of threats, I think one has to -- again, the

admonition of the Court is to weigh the evidence and to the

credibility and the quality of the evidence; and on the issue of

quality, in weighing it, rather than on the issue of credibility, I think

one has to take a look at the evidence in the context of the group of

people that we are dealing with.

We are not dealing with cloistered nuns, we are not dealing

with second grade children, we are dealing with people in a labor

situation, truck drivers, people who are more sophisticated or

hardened in the ways of the world.

I’mnot certainly saying that truck drivers or operating engineers

or anyone else have to be subject to all kinds of treatment without

retribution; but I think, you know, giving one the finger or being

flipped off, these things, while certainly are rude, and crude possibly,

in terms of everyday life, I don t believe can be thought to be, to

one of normal sensibility, threatening, at least the -- some of the

other gestures are. There is no evidence of anyone being that con-

cerned about physical violence.

I think Mr. Larry Michael Geske indicated, and I think probably

summed it up, that he was threatened, he felt threatened for the

company, and that is in an economic sense.

But, you know, I think, fortunately, to a great extent, that’s what

these types of situations have somewhat to do with, economic

situations, that is, economic struggles and strife.

The Court believes that there is evidence the activities — |

would say, before I get into that - someone cited -- and I did read

the case of Fellhauer, it’s F-e-l-l-h-a-u-e-r, versus City of Geneva, 14

Illinois 2d, 495. It’s a Supreme Court case arising out of the Tnal

Court decision in Kane County, in the Appellate Court of the Second

District, involving an employee, apparently of the City of Geneva,

20a

and there were a couple of counts I noticed. There was a retaliatory

discharge count and there was a tortious interference count. It may

have some other things.

The Appeliate Court reversed the -- strike that.

The Supreme Court reversed the Appellate Court and affirmed

the Tal Court; but in the course of that opinion, it indicated -- and,

again, what I am doing is not an absolute quote, but it’s fairly close,

paraphrasing it

The Court, the Supreme Court stated it is generally recognized

by Illinois courts that to prevail on a claim for tortious interference

with prospective economic advantage, the plaintiff must prove, 1, a

reasonable expectation of entering into valid business relationships;

2, knowledge by the defendant of the plaintiff's expectancy; 3,

purposeful interference by defendant that prevented plaintiff's

legitimate expectation to mpen; and, fourth, damages.

I think it is -- although it didn’t talk about tortious interference

with economic advantage -- it could be reasonably said that the

elements there would probably be three or four, that there was a

business relationship, that the plaintiff knew of it, that the interfer-

ence prevented the continuation of that, or something to that effect,

and that damages flow from it. That would be my -— it didn’t talk

about that, but generally that’s what it would be.

I think the issue here before the Court, from the evidence it has

before it on the issue of likelihood of success on both of these

tortious interference counts, is whether or not there was a tortious

interference.

The Court believes that the evidence does establish that there

was a certain level of interference with the conduct of the plaintiffs

business, based upon the evidence.

2la

I think, by the very nature of having the picketers, et cetera,

does have an interfering -- you know, that’s intended. I mean, that

is a part of it.

The question is whether or not, at least in the Court’s mind,

looking from the labor situation, as whether or not the interference

was a lawful interference, whether or not there was anything

wrongful or unlawful about the interference, based on the evidence.

And, again, the Court believes it is not looking into whether or

not there was some kind of a labor violation, but whether or not

there was a violation of some kind of some right that the State

courts are here to protect.

There was discussion of this ambulatory picketing, is what it

was called, and to whether or not it must, you know, stop at the

gates of the third parties or can continue down in.

There was some evidence, at least reference to the fact that at

least some of the employers did have some kind of an agreement

that the union could come on or on the property for -- I think the

testimony was “lawful purposes or picketing.”

There is no evidence, other than a couple minor intrusions on

the Geske property, which I don’t believe had anything to do with

picket signs, although there may have been one stuck in the ground

and kicked over.

There is no evidence that the defendants committed any

unlawful trespasses. here is some evidence, like with regard to,

I think, the Lee pit, or something, that they went on, but | don’t

believe the record indicates that it was necessarily a trespass. I don’t

know whether it was or wasn’t

As to the following in the cars, again, without getting into the

fine points of labor, there does not appear to have been any

significant wrong committed.

22a

As to the stopping of traffic on this unnamed but road leading

down to Geske -- maybe somebody did give it a name, I don’t know

-- but the road that goes to the conservation district, it goes to the

Geske plant, goes to the Melahn property, and whatever else is on

there, the evidence as to any illegal interference I don’t think is

particularly strong.

Again, there was no evidence of threats of violence; there was

some conversation, but the Court further does not believe that the

plaintiff has established that it has likelihood of success on the

merits on either of these tortious interference matters.

And the Court would also -- because I know counsel always

have an eye from going somewhere else -- would comment that, in

something that the Lowe Court referred to, is the question of the

applicability of the Anti-Injunction Act.

The Court has reviewed the terms of the Anti-Injunction Act,

and considering the statute, considering the evidence that has been

presented before the Court at this time, the Court does not believe

that the plaintiff has persuaded the Court that, under the facts and

circumstances of this case, that the Anti-Injunction Act is inappli-

cable; therefore, I find it to be applicable under the facts and the

circumstances of this case, and that is a further reason why I am

denying the preliminary injunction.

MR. PIERSON: Thank you, your Honor?

MR. SMETANA: Thank you.

THE COURT: Now, you had asked me to defer until I termi-

nated this proceeding on your request to file a third amended

complaint. I will take that up at this point, if you wish it.

MR. LE SUEUR: We would renew that motion for leave to file,

your Honor.

23a

THE COURT: That motion is renewed. Any comment at this

time from the defendants?

MR. PIERSON: I guess the only comment would be, your

Honor, that we would oppose it on the ground that we would believe

that it would not -- or that it might call into question the decision

you just made, and that it would be a tragedy if we had to just then

go through the entire thing again, because of a change in parties or

some additional facts that they have alleged, you know, that

somehow changed circumstances.

THE COURT: Response?

MR. SMETANA: Briefly, in response, I believe we had stated

that it was not our intent to seek preliminary injunctive relief at this

time with respect to those other matters, and certainly the Court’s

decision here on the preliminary injunctive relief would certainly

substantially chill any likelihood of proceeding in that fashion

certainly at this time.

But I think we would nevertheless like to proceed for perma-

nent injunctive relief on damages, and possibly find other authorities

to convince the Court to reconsider its decision based on the VeeSee

case and so forth, what the standards are with respect to trade libel

in the State.

THE COURT: I believe the plaintiff has the nght, whether it be

in this proceeding or another proceeding, to bring additional claims.

To the extent that the Court has ruled on the preliminary

injunction at this time, I certainly have no intention of revisiting that

matter.

But there are additional people, there are additional counts,

there are additional allegations at different times, and I would

therefore at this time give the plaintiff leave to file the third verified

complaint, amended, or whatever it is, with summons to issue

against additional parties defendant.

MR. LE SUEUR: Thank you, Judge.

MR. SMETANA: Thank you.

MR. PIERSON: Your Honor, if I may raise a question about

how to style the order.

Is it adequate to simply refer to “For the reasons stated in open

court, defendant’s motion for directed finding is granted and

preliminary motion denied”?

MR. SMETANA: We could have a certified copy of the Court

Reporter statement, your Honor, if that’s as set forth in the opinion

of the Court.

THE COURT: That’s fine with me.

MR. PIERSON: Do you want a written order, though?

THE COURT: There should be a written order just stating it

was denied, and then you want to refer to the transcript or whatever,

however you want to do it; but there should be a written order.

MR. PIERSON: Very good. Thank you, your Honor.

MR. SMETANA: I want to thank the Court very much for its

time and patience. It was most generous, as I said before.

MR. LE SUEUR: Thank you, Judge.

MR. PIERSON: Thank you, your Honor.

MS. FARR: Thank you, your Honor.

(WHICH were all the proceedings had in _ the

above-entitled matter, at the time and place aforesaid.)

25a

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

June 3, 1993

Mr. Gerard C. Smetana

Law Offices of Gerard C. Smetana

333 W. Wacker Dr., S#470

Chicago, IL 60606

No. 75020 - Geske & Sons, Inc., petitioner, v. International Union

of Operating Engineers, Local 150 et al., respondents.

Leave to appeal, Appellate Court, Second District.

The Supreme Court today DENIED the petition for appeal as

a matter of right or leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate Court on

June 25, 1993.

26a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GESKE & SONS, INC., )

) DOCKET NO. 91 C 5659

Plaintiff, )

)

Vv. )

)

INTERNATIONAL UNION )

OF OPERATING ENGINEERS, )

et al., ) CHICAGO, ILLINOIS

; ) September 11, 1991

Defendants. ) 9:00 o’clock a.m.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE HARRY D. LEINENWEBER

APPEARANCES:

FOR THE PLAINTIFF: Mr. GERARD C. SMETANA

(Richman, Lawrence, Mann,

Greene & Smetana

333 West Wacker Drive

Chicago, Illinois 60606)

FOR THE DEFENDANTS: MR. DALE D. PIERSON

(Baum & Sigman, Ltd.

200 West Adams Street

Chicago, Illinois 60606)

MR. MARTIN BARR

(Carmell, Charone, Widmer

Mathews & Moss

225 West Washington Street

Chicago, Illinois 60606)

27a

THE CLERK : 91 C 5659, Geske & Sons vs. International

Union.

MR. PIERSON: Good morning, your Honor. Dale Pierson on

behalf of Local 150 of the Operating Engineers.

MR. BARR: Good morning, your Honor. Martin Barr on

behalf of the defendant, Local 301.

MR. SMETANA: Good morning, your Honor. Gerard Smetana

for the plaintiff, Geske & Sons.

THE COURT: On the motion to remand.

Plaintiff filed a three count complaint in state court arising

out of a labor dispute with the defendant unions. Plaintiff is

non-union and apparently wants to remain so. The defendants are

picketing plaintiff to coerce it into entering into a collective

bargaining agreement. The complaint alleges that defendants are

untruthfully informing the public and plaintiff's customers that its

employees are on strike, that it is out of business, and that its

competitors are cheaper. It also alleges that the defendants are

threatening its employees and customers with bodily harm and

property damage. As a result some of plaintiff's customers have

stopped doing business with plaintiff.

The complaint as originally drafted also make allegations in

Paragraph 18 that defendants are carrying out a secondary boycott.

The prayer of each count of the complaint, however, remains true to

the count’s characterization. The three counts are characterized a

trade libel, tortious interference, contractual relations and tortious

interference with prospective advantage, all of which are cause of

actions available under Illinois common law.

The defendants removed the case to this court on the basis of

federal question jurisdiction. The plaintiff has filed a motion to

remand for lack of jurisdiction.

28a

The Supreme Court in Caterpillar, Inc. vs. Williams, 107 S.Ct

2425 (1987), set forth the principles governing removal jurisdiction.

"The presence or absence of federal question jurisdiction exists

only when a federal question is presented on the face of the

plaintiff's properly pleaded complaint. (Citation omitted). The

rule makes the plaintiff the master of the claim; he or she may

avoid federal jurisdiction by exclusive reliance on state law."

Here the plaintiff has pleaded three state common law claims and

has avoided praying for any relief based on any federal statute.

The defendants, however, contend that plaintiff in Paragraph 18

has in fact pleaded a claim of secondary boycott which is prohibited

by Section 303 of the LMRA. Assuming the paragraph contains

sufficient allegations to state such a claim, it is clearly unnecessary

for the plaintiff's common law claims and can be disregarded under

Illinois law as surplusage. 30 ILP, “Pleading”, Section 13. In any

event, what defendants are raising is a defense to plaintiffs three

claims, that is, that because of the peculiar facts of this case

plaintiff's claims are preempted by the LMRA. However, Caterpillar

answers this objection:

"Ordinarily federal preemption is raised as a defense to the

allegations in a plaintiff's complaint. Before 1887 a federal

defense such as preemption could provide a basis for removal,

but in that year Congress amended the removal statute. We

interpret that amendment to authorize removal only where

original federal jurisdiction exists. Thus, it is now settled law

that a case may not be removed to federal court on the basis of

a federal defense, including the defense of preemption.”

Thus, defendants may be correct that plaintiff will prove a claim that

is preempted by federal law. The defendants may also be correct

that plaintiff may not even state a claim under state law. If so, the

State court can dismiss the complaint either because of preemption

or for failure to state a claim. In fact, the two Supreme Court cases

relied on by defendants, Sears, Roebuck and Company vs. San

29a

Diego, 98 S.Ct. 1745 (1978) and Amalgamated vs. Lockndge, 91

S.Ct. 1909 (1971) were both appeals of state court rulings on

preemption.

There are two exceptions to the well-pleaded complaint rule, the

“complete preemption” doctrine (Caterpillar, at Page 2430) and its

corollary, the “artful pleading” doctrine. (See Lingle vs. Norge

Division of Magic Chef, Inc., 823 F.2d 1031 (7th Cir. 1987)

reversed on other grounds, 108 S.Ct. 1877 (1988). These two

doctrines have been applied primarily to Section 301 claims to

enforce collective bargaining agreements and claims under ERISA.

(See Caterpillar, at Page 2430 and Metropolitan Life Insurance Co.,

107 S.Ct. 1542 (1987), neither of which is implicated here. No one

contends, as with ERISA, that Section 303 sought to preempt the

entire labor-related tort field. (See Metropolitan, at Page 1547 and

Lowe Excavating vs. Local No. 150, 129 Ill. Dec. 300, 2nd Dist.

1989).

In conclusion, because plaintiff's complaint does not on it face

contain a federal claim, It is not subject to removal here.

Accordingly, plaintiffs motion is granted and the cause is

remanded to state court.

MR. SMETANA: Could we get a copy of that order, Your

Honor?

THE COURT: Pardon?

MR. SMETANA: Could we get a copy of that order to take to

State court?

THE COURT: You will have to order it from the court reporter.

MR. SMETANA: Could we get a Xerox of your copy, perhaps?

THE COURT: No. You will have to talk to Mr. Cheek.

30a

MR. SMETANA: We will talk to the reporter. Thank you, your

Honor.

(Which were all the proceedings had in the above-entitled cause.)

I CERTIFY THAT THE FOREGOING IS A CORRECT TRAN-

SCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

ABOVE-ENTITLED MATTER.

/s/ James W. Cheek 10-23-91

Official Court Reporter Date

Minute Order Form (rev. 12/90)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number 91 C 5659 Date SEP 11, 1991

DOCKET ENTRY Plaintiff's motion for remand is granted.

Cause remanded to State Court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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