Petition for Writ of Certiorari — Intercity Maintenance Co. v. Local 254

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Supreme Court of the United States

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INTERCITY MAINTENANCE CO.,

Petitioner,

LOCAL 254, SERVICE EMPLOYEES INTERNATIONAL

UNION; SERVICE EMPLOYEES INTERNATIONAL

UNION, AFL-CIO; VICTOR LIMA;

DONALD COLEMAN,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

a

PETITION FOR WRIT OF CERTIORARI

¢

VINCENT F. Racosta, Jr.

Counsel of Record

MatTHEW T. OLIVERIO

CHRISTINE M. CurLey

Shakespeare Hall - Penthouse

128 Dorrance Street

Providence, Rhode Island 02903

(401) 274-2100; FAX (401) 861-2260

Counsel for the Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

\}

Il.

Il.

QUESTIONS PRESENTED

Whether Intercity’s State Law Defamation Claims

Are Preempted Pursuant to Linn v. United Plant

Guard Workers of America, 383 U.S. 53, 86 S. Ct. 657

(1966) Where the Lower Courts Found That the

Union Acted With Actual Malice?

Where the Lower Courts Found That the Union Pub-

lished Defamatory Statements About Intercity With

Actual Malice, Does Linn v. United Plant Guard

Workers of America, 383 U.S. 53, 86 S. Ct. 657 (1966)

Require Proof of Special Pecuniary Losses In Addi-

tion to Damages Recoverable Under State Tort Law?

Upon Proof of a Union’s Malicious Libels, Does Gen-

eral Injury to Intercity’s Reputation, Entitling It to

Presumed Damages Under State Tort Law, Satisfy

the Compensable Harm Requirement of Linn v.

United Plant Guard Workers of America, 383 U.S. 53, 86

S. Ct. 657 (1966), Permitting an Award of Punitive

Damages?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............. ‘“eacbun ca i

FABLE OP AUT os eis ok eee ee iv

COP Ee oak: cas does nea een ean 1

PAF ROG oi 6 6ckn cadue cncneen chaedewA meatae 1

STATUTES INVOLVED IN THIS CASE............. 2

STATEOAENT OOF THEE CAGE iis cin nc kcecnskivcnkes 2

REASONS FOR GRANTING THE WRIT ........ Bch

I. The First .Circuit’s Ruling That Intercity’s State

Law Defamation Claims Were Preempted Pur-

suant To Linn v. United Plant Guard Workers Of

America, 383 U.S. 53, 86 S. Ct. 657 (1966), Despite

Its Finding That The Union Acted With Actual

Malice, Conflicts With Federal Labor Policy And

Decisions Of This Court Allowing Redress For

Malicious Libels According To State Law...... 6

II. The First Circuit’s Opinion Eviscerates Linn v.

United Plant Guard Workers Of America, 383 U.S.

53, 86 S. Ct. 657 (1966) And Subsequent Deci-

sions Of This Court Because The Court Required

The Targeted Victim Of Malicious Libels To

Prove Special Pecuniary Losses Despite Evi-

dence Of General Injury To Reputation And The

Availability Of Presumed Damages Under State

Fp MEEEEE CCE Ce ee ee a ee Or er 10

III. The First Circuit’s Opinion Foreclosing An

_Award Of Punitive Damages Where A Defamed

Business Has Suffered Compensable Harm Of

General Injury To Reputation And Presumed

Damages Under State Law Is Destructive Of

Federal Labor Policy As It Permits Unions To

Publish Defamatory Libels With Immunity From

LAGOS usd s icnacens C355 ke vue paen eka 15

iii

TABLE OF CONTENTS - Continued

a Dl 17

I ot oo ats chal atin b bewinaceiinnl App. 1

iv

TABLE OF AUTHORITIES

Page

Cases

Box Tree South, Ltd. v. Bitterman, 873 F. Supp. 833

GRRE BEM 66a sicbodns sh nos banvanesaaesabas ines 8

Briggs & Stratton Corporation ». National Catholic

Reporter Publishing Company, 978 F. Supp. 1195

GRE SNE, SOE ao ws ceksdicndsavennas caaesonessude 8

Caruso v. Local Union 690, 670 P.2d 240 (Wash.

FI nh 0 onde noti os ngeesa cakes s4sdntadacdiawieses 13

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 US. 748, 105 S. Ct. TIBD CAGES) wee essa cccesss 14

Dunn v. Air Line Pilots Association, 193 F.3d 1185

ay gx rr rere ern Pree rrr rrr 4

Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997

GREE od van vin dicho chacsandienesanvetesueesven 12, 13

Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969),

cert. denied, 396 U.S. 1049, 90 S. Ct. 701 (1970)....15

International Brotherhood of Electrical Workers v.

Maye, S79 A.26 1223 GEG. 1977). .sccvcsicnscences 13

Hanlon v. Davis, 545 A.2d 72 (Md. App. 1988)....... 13

Laudati v. Stea, 44 R.I. 303, 117 A. 422 (1922)........ 15

Linn v. United Plant Guard Workers of America, 383

Ses ee ee ee ee ee CE b's Hed w ac kbapanes passim

Memphis Community School District v. Stachura, 477

US. 29, BOG S. Ch. Za? CRs on oe ccdacccnncenss 14

Metheney v. Monarch Rubber Co., 43 F. Supp.2d 588

(S.D.W.Va. 1999)........ esc panenshaeausernnchee ds 8

Vv

TABLE OF AUTHORITIES - Continued

Page

New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct.

FIO CHG oo ks dec dcdasdccivet sabes ieeaeeeuet 8, 13, 16

O’Brien v. Times Pub. Co., 43 A. 101, 21 R.I. 256

CUT oie 26s cis de dicen cadkgasawasneessseuiaee 15

Old Dominion Branch No. 496, National Association

of Letter Carriers v. Austin, 418 U.S. 264, 94S. Ct.

iy, Bt Perey pre rer pre oy r oer yy Po, fe

Sheeran v. Colpo, 460 A.2d 522 (Del. 1983)........... 12

Tosti v. Ayik, 476 N.E. 2d 928 (Mass. 1984)...........8

STATUTES

Labor Management Relations Act, 29 U.S.C. § 185..... 2

National Labor Relations Act, as amended, 29

ULB © Bais ov vc datees etn disvesas tks ersenaenen 2

TREATISES

Prosser, Law of Torts, § 778 (1964)............2-008- 15

PETITION FOR WRIT OF CERTIORARI

Intercity Maintenance Company (“Intercity”) respect-

fully petitions for writ of certiorari to review the decision

and judgment of the United States Court of Appeals for

the First Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the First Circuit giving rise to this petition is reported at

241 F.3d 82 (2001). It is reprinted in the Appendix

(“App.”) hereto at App. 1. The decision of the United |

States District Court for the District of Rhode Island

granting the Defendants’ Motion for Judgment as a Mat-

ter of Law is not reported. (App. 18). The initial decision

of the United States District Court for the District of

Rhode Island granting in part and denying in part the

Defendants’ Motions for Summary Judgment is reported

at 64 F. Supp. 2d 483 (1999). (App. 26). |

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JURISDICTION

On April 11, 2000, the United States District Court for

the District of Rhode Island issued a bench decision

granting the Motion for Judgment as a Matter of Law of

Defendants Service Employees International Union, Local

254 and Donald Coleman with respect to Intercity’s

claims. Judgment was entered by the District Court on

April 11, 2000. (App. 25). On April 12, 2000, Intercity filed

its notice of appeal to the United States Court of Appeals

for the First Circuit. In an opinion filed on March 2, 2001,

the First Circuit affirmed the ruling of the District Court

with respect to Intercity’s defamation claims and entered

its judgment on March 2, 2001.1 Pursuant to Supreme

Court Rule 13 (1), this petition has been filed within

ninety (90) days of the entry of judgment.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254 (1).

STATUTES INVOLVED IN THIS CASE

This case involves the National Labor Relations Act,

as amended, 29 U.S.C. § 158 (“NLRA”) (reprinted at App.

78), as construed by Linn v. United Plant Guard Workers of

America, 383 U.S. 53, 86 S. Ct. 657 (1966) and the Labor

Management Relations Act, 29 U.S.C. § 185 (“LMRA”)

(reprinted at App. 90).

te

vy

STATEMENT OF THE CASE

Intercity is a small, family-owned, non-union corpo-

ration providing janitorial services. It was formed in 1988

by its president, Michael Bouthillette (“Bouthillette”). In

1995, Intercity was pursued by Local 254 of the Service

Employees International Union (“Local 254”) seeking to

1 The First Circuit reversed the ruling of the District Court

on Intercity’s claims of unlawful secondary activity and

remanded the case for a new trial. (App. 16).

organize Intercity’s workers. Intercity rebuffed Local

254’s demands for voluntary recognition and insisted that

Local 254 seek representational status through the

National Labor Relations Board. In response, Local 254

began a ruthless campaign of intimidation and threats

against Intercity, Bouthillette and his family members.

Local 254 also distributed defamatory letters and hand-

bills to Intercity’s largest customers, Blue Cross/Blue

Shield of Rhode Island (“Blue Cross”) and Women &

Infants Hospital (“WIH”). (Samples of said letters and

handbills are reproduced at App. 92). The defamatory

documents conveyed vicious, grave and false accusations

that Intercity exposed its workers to unsafe and unsani-

tary working conditions as well as chemical and biolog-

ical hazards, including HIV and the Hepatitis B virus.

Local 254 sent two letters to Blue Cross accusing

Intercity of mistreating and endangering the health and

safety of its workers, stating that “a health emergency

exists,” that Intercity was in violation of federal and state

laws and that Intercity had failed to protect its workers

from sickness and hazards caused by chemical contam-

ination. These assertions were presented as factual repre-

sentations of Intercity’s health and safety record. They

were patently false because Intercity provided all neces-

sary manuals, training, protective gear and clothing to its

workers.

In trial testimony, agents of Local 254 admitted they

informed Intercity in March 1995 that they no longer

sought to organize Intercity’s employees. Instead, Local

254 cavalierly admitted that their goal was to run Inter-

city out of business by causing it to lose all of its cus-

tomers.

On March 31, 1995, Local 254 began picketing and

handbilling another of Intercity’s primary customers,

WIH, carrying signs and handing out leaflets to cus-

tomers, patients and other persons passing by the hospi-

tal. The picketing continued for five days. One of the

handbills distributed in front of WIH proclaimed:

INTERCITY HAS INFECTED ITS CLEANERS

AS FOLLOWS:

INTERCITY DOES NOT PAY LIVING WAGES

INTERCITY DOES NOT PAY HOLIDAY PAY

INTERCITY DOES NOT PAY HEALTH

INSURANCE

INTERCITY EXPOSES ITS WORKERS TO

CHEMICAL AND BIOLOGICAL HAZARDS

INCLUDING HIV AND HEPATITIS B.

Local 254 published these proclamations as statements of

fact. But at trial, the evidence exposed their blatant falsity

because Intercity: (1) paid its workers wages above area

standards; (2) provided its workers with paid holidays,

health insurance, vacations, bonuses and low interest

loans; and (3) met requisite health and safety protocols.

Of critical and prominent import to this petition is

the lower courts’ adjudication that Local 254 acted with

actual malice in publishing the false, defamatory letters

and handbills.* The District Court expressly found:

2 The questions presented in this petition have never been

squarely addressed by any other Court of Appeals because the

courts in previous defamation cases involving labor unions

premised their rulings on the determination that the actual

malice test required by Linn v. United Plant Guard Workers of

America, 383 U.S 53, 86 S. Ct. 657 (1966) had not been met.

Compare Dunn v. Air Line Pilots Association, 193 F.3d 1185,

1197-1200 (11th Cir. 1999).

[T]he evidence indicates that Coleman and Sul-

livan [agents of Local 254], and Local 254, made

false statements of fact by writing letters to Blue

Cross and Women & Infants, and by distributing

leaflets at Women & Infants. The evidence is

overwhelming that those statements were either

knowingly false or made with reckless disregard

for truth or falsity.

(App. 20). The District Court further concluded that:

The plaintiff has succeeded in proving that the

defendants, Local 254 and Coleman, and other

employees of the Local, such as Sullivan and

Lima, are lawless, marauding, disingenuous,

character assassins who deserve their comeup-

pance.

(App. 20). These findings were accepted by the Court of

Appeals.

Consequently, the defamatory nature of the pub-

lished statements as well as the actual malice of the union

defendants have been conclusively established for the

purposes of this petition.

Local 254’s defamatory publications sullied Inter-

city’s goodwill and integrity as an employer and service

provider. The resulting harm was general injury to Inter-

city’s professional reputation, entitling it to recover pre-

sumed damages under state law. Nevertheless, the First

Circuit ruled that “plaintiffs who endure even malicious

libels during a labor dispute must present evidence of

harm from defamation in order to recover, notwithstand-

ing the law of states such as Rhode Island in which

damages would otherwise be presumed.” (App. 15). The

First Circuit further concluded that in the absence of

evidence of actual damages, no punitive damages may be

awarded. (App. 16). The First Circuit’s decision stripped

Intercity of a remedy for the general injury to its reputa-

tion. More importantly, it serves to insulate and immu-

nize unions from responsibility for their malicious acts,

contrary to federal labor policy and the rulings of this

Court.

REASONS FOR GRANTING THE WRIT

I. The First Circuit’s Ruling That Intercity’s State Law

Defamation Claims Were Preempted Pursuant To

Linn v. United Plant Guard Workers of America, 383

U.S. 53, 86 S. Ct. 657 (1966), Despite Its Finding That

The Union Acted With Actual Malice, Conflicts With

Federal Labor Policy And Decisions Of This Court

Allowing Redress For Malicious Libels According

To State Law.

The underlying policy of the federal labor laws can-

not be furthered by protecting defamatory speech mali-

ciously published by a labor union. No legitimate federal

labor law objective is advanced by sanctioning a union’s

malicious libels, especially where the intent is neither to

organize an employer nor to truthfully inform the public

of inequitable treatment, but rather to harm the business

reputation of a non-union employer.? This conduct is

3 Each of Local 254’s agents admitted at trial that no labor

dispute existed between Local 254 and WIH or between Local

254 and Blue Cross or between Local 254 and Intercity at the

time the handbills were distributed. These witnesses further

accorded no protection under federal labor law, and

therefore is not governed by the NLRA or the LMRA.

This Court formulated the applicable standard for

applying state defamation law in the labor context in Linn

v. United Plant Guard Workers of America, 383 U.S. 53, 86 S.

Ct. 657 (1966), reiterated in Old Dominion Branch No. 496,

National Association of Letter Carriers v. Austin, 418 U.S.

264, 94 S. Ct. 2770 (1974). The dictates of Linn control this

case:

[T]he most repulsive speech enjoys immunity

provided it falls short of a deliberate or reckless

untruth. But it must be emphasized that mali-

cious libel enjoys no constitutional protection in any

context. 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.

Id. 383 U.S. at 62, 86 S. Ct. at 663. [Emphasis added].

Where union statements are false and published with

actual malice, that is, made with knowledge of their

falsity or with reckless disregard of whether they are true

or false, a union must be held accountable under state

law. Linn, 383 U.S. at 61, 86 S. Ct. at 662; Old Dominion,

418 U.S. 281, 94 S. Ct. at 2779-2780.4 In cases of malicious

libel this Court has stated:

admitted that as of March 31, 1995, the date the picketing began

at WIH, Local 254 no longer sought to organize or represent

Intercity’s employees, but only wanted to run it out of business.

4 This Court has equated the term actual malice as

shorthand for the “knowledge of falsity or reckless disregard of

The exercise of state jurisdiction here would be

a ‘merely peripheral concern of the Labor Man-

agement Relations Act,’ provided it is limited to

redressing libel issued with knowledge of its

falsity, or with reckless disregard of whether it

was true or false. Moreover, we believe that an

‘overriding state interest’ in protecting its resi-

dents from malicious libels should be recog-

nized in these circumstances.

Linn, 383 U.S. at 61, 86 S. Ct. at 662.

Linn did not federalize state defamation law, but

merely preempted it to a limited degree, where there was

no proof of actual malice. See Box Tree South, Ltd. v.

Bitterman, 873 F. Supp. 833, 842 (S.D.N.Y. 1995). See also

Metheney v. Monarch Rubber Co., 43 F. Supp. 2d 588

(S.D.W.Va. 1999) (NLRA does not completely preempt

state law defamation claims); Tosti v. Ayik, 476 N.E. 2d 928

(Mass. 1984) (state law subject matter jurisdiction over

plaintiff’s libel claim not preempted by federal law).

Thus, proof of “actual malice” removes this case from

the ambit of federal law. Old Dominion, 418 U.S. 264, 94 S.

Ct. 2770 (1974) (actions under state law preempted by

federal law to the extent that the State sought to make

actionable statements in labor disputes which were pub-

lished without knowledge of their falsity or reckless dis-

regard for the truth). See Briggs & Stratton Corporation v.

National Catholic Reporter Publishing Company, 978 F. Supp.

1195, 1199 (E.D. Wisc. 1997) (state libel and slander action

the truth” standard, applied under federal constitutional

precepts, originally enunciated in New York Times v. Sullivan, 376

U.S. 254, 84 S. Ct. 710 (1964). Old Dominion, 418 U.S. at 281 94S.

Ct. at 2780.

may be maintained within the context of a labor dispute

where defamatory publication made with reckless disre-

gard of truth or falsity).5

The applicability of the preemption doctrine under

the labor laws must be read in conjunction with federal

labor policy. Linn addressed speech uttered in the context

of a labor dispute, a union organizing campaign. In fol-

lowing Linn, the Supreme Court in Old Dominion, stated:

Whether Linn’s partial preemption of state libel

remedies is applicable obviously cannot depend

upon some abstract notion of what constitutes a

labor dispute; rather application of Linn must

turn on whether the defamatory publication is

made in a context where the policies of the

federal labor laws leading to protection for free-

dom of speech are significantly implicated.

418 U.S. at 279, 94 S. Ct. at 2778.

In this case, the District Court concluded that “[t]he

evidence is overwhelming that those statements [in the

letters and handbills] were either knowingly false or

made with reckless disregard for truth or falsity.” (App.

20). The First Circuit likewise concluded that “Local 254.

made scant effort to investigate the veracity” of the state-

ments set forth in the letters and handbills. (App. 12). The

dictates of Linn required that once actual malice was

established, Intercity’s state law defamation claims

> In fact, in its initial ruling on the preemption issue, the

District Court correctly found that “the key to this particular

species of preemption analysis is malice,” and accordingly,

Intercity’s state law defamation claims as well as its claim for

punitive damages would not be preempted by federal labor law

if actual malice was established. (App. 64).

10

should have been determined by the jury in accordance

with Rhode Island law.

Defendants’ malicious speech and unlawful objective

simply cannot be said to fall within the penumbra of

protected speech under the guise of a legitimate labor

dispute, as such speech obviously does not further any

legitimate federal labor policy. Accordingly, Intercity’s

defamation claims should have been analyzed with fidel-

ity to Rhode Island tort law, which permits the recovery

of presumed damages for general injury to reputation

and punitive damages.

II. The First Circuit’s Opinion Eviscerates Linn v.

United Plant Guard Workers of America, 383 U.S. 53,

86 S. Ct. 657 (1966) And Subsequent Decisions Of

This Court Because The Court Required The Tar-

geted Victim Of Malicious Libels To Prove Special

Pecuniary Losses Despite Evidence Of General

Injury To Reputation And The Availability Of Pre-

sumed Damages Under State Law.

Despite acknowledging Linn’s exception to the Gar-

mon preemption rule for defamatory statements made

with actual malice, the First Circuit concluded that Linn

preempts reliance on the presumption of damages allow-

able under state law even where actual malice has been

incontrovertibly proven. (App. 13-15). This conclusion

misapprehends Linn and is patently wrong - a plaintiff

should not be required to “endure even malicious libels”

without recourse to state law simply because the mali-

cious actor is a union. (App. 15).

To superimpose a requirement of proof of specific

monetary losses as a condition to recover for malicious

11

defamation in the labor context, will have the practical

effect of licensing unions to employ an arsenal of defama-

tory weapons capable of destroying non-union busi-

nesses, without any fear of repercussions. Such an

evidentiary hurdle was never mandated by Linn. Quite

the contrary, Linn allowed for optional forms of proof of

harm:

[A] complainant may not recover except upon

proof of such harm, which may include general

injury to reputation, consequent mental suffer-

ing, alienation of associates, specific items of

pecuniary loss, or whatever form of harm would be

recognized by state tort law.

Linn, 383 U.S. at 65, 86 S. Ct. at 664. [Emphasis added].

It is inherently improbable for a business smeared by

a union’s calculated, malicious vitriol to ascertain the

identity of dissuaded customers to attest that defamatory

publications deterred them from doing business. The

practical reality of this case is that prospective customers

simply walked away and dismissed Intercity from consid-

eration for work. To preclude recovery in such a circum-

stance where injury to reputation is presumptive and

obvious, would contort federal labor policy and the dic-

tates of Linn (which emphasize that “malicious libel

enjoys no constitutional protection in any context”). Linn,

383 U.S. at 62, 86 S. Ct. at 663. This result is manifestly

unjust and simply wrong.

Linn’s proof of harm requirement is not limited to

proof of quantifiable pecuniary loss or special damages.

Rather, proof of general injury to reputation or any other

form of harm compensable under state law is sufficient. A

jury may take into account probable as well as proven

12

injury to a plaintiff’s reputation based upon the nature of

the libel, the extent of the distribution, and the probable

effect on the persons who may have read it. Sheeran v.

Colpo, 460 A.2d 522 (Del. 1983).

As stated by the United States Supreme Court in

Gertz v. Welch, 418 U.S. 323, 349, 94 S. Ct. 2997, 3012

(1974):

Suffice to say that actual injury is not limited to

out of pocket loss. Indeed the more customary

types of actual harm inflicted by defamatory

falsehood include impairment of reputation and

standing in the community, personal humilia-

tion, and mental anguish and suffering. Of

course, juries must be limited by appropriate

instructions, and all awards must be supported

by competent evidence concerning the injury,

although there need be no evidence which assigns a

dollar value to the injury.

Id. [Emphasis added].

In Linn, the Supreme Court carefully noted the dis-

tinction between state law actions which were actionable

per se and the availability of presumed damages. The

Court did not foreclose the availability of presumed dam-

ages, but concluded “Linn must show that he was injured

by the circulation of the statements; this necessarily

includes proof that the words had a defamatory mean-

ing.” Linn, 86 S. Ct. 663, 383 U.S. at 58, n.2. Thus, pur-

suant to Linn, once actual malice has been established, a

plaintiff is entitled to compensation for injury to its repu-

tation where the words published by the union were

defamatory on their face.

13

This conclusion comports with the First Amendment

law of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct.

710 (1964) and its progeny which affirm that damages

may be presumed from the specific language used, so

long as the actual malice standard has been met and the

words are defamatory on their face, thereby implicating a

person’s business or professional reputation. Gertz v.

Welch, 418 U.S. 323, 349, 94 S. Ct. 2997, 3011-3012 (1974)

(holding “It is necessary to restrict defamation plaintiffs

who do not prove knowledge of falsity or reckless disre-

gard for the truth to compensation for actual injury).® See

also Caruso v. Local Union 690, 670 P.2d 240 (Wash. 1983)

(recognizing jury could award presumed damages

against union where actual malice established); Interna-

tional Brotherhood of Electrical Workers v. Mayo, 379 A.2d

1223 (Md. 1977) (permitting recovery of presumed and

punitive damages against union where actual malice

standard met); Hanlon v. Davis, 545 A.2d 72 (Md. App.

1988) (same).

The language of the letters and handbills specifically

targeted Intercity’s business and reputation with its cus-

tomers. Both the character of the words and the circum-

stances of the publication establish legal injury in fact,

entitling Intercity to presumed damages for general

6 On remand, the Eighth Circuit affirmed the award of

$100,000 in compensatory damages and $300,000 in punitive

damages, summarizing that because there was evidence of

actual malice in the publication of the defamatory statements,

which were defamatory on their face, the Constitution would

not prohibit presumed damages. Gertz v. Robert Welch, Inc., 680

F.2d 527, 540 (1982).

14

injury to its reputation, whether or not such damages are

precisely quantifiable.

As acknowledged by the Supreme Court:

The rationale of the common-law rules has been

the experience and judgment of history that

‘proof of actual damage will be impossible in a

great many cases, where from the character of

the defamatory words and the circumstances of

the publication, it is all but certain that serious

harm has resulted in fact.’

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

749, 760, 105 S. Ct. 2939, 2946 (1985). (citations omitted).

Moreover, the Supreme Court has consistently recognized

that presumed damages are appropriate when a plaintiff

seeks compensation for an injury that is likely to have

occurred but difficult to ascertain or impossible to mea-

sure. Memphis Community School District v. Stachura, 477

U.S. 299, 310-311, 106 S. Ct. 2537, 2545 (1986).

Intercity proved general injury to its reputation

resulting from the distribution of the defamatory letters

and handbills. Bouthillette testified credibly about Inter-

city’s reputational harm, inquiries from nurses,

employees and doctors about Intercity’s treatment of its

workers and their conditions of employment, and the

considerable efforts expended to preserve its existing cus-

tomer base.

However, despite expressly finding that “Intercity

presented evidence of harm to its business reputation

based on statements that are defamatory on their face”

(App. 14), the First Circuit concluded that Intercity could

not recover compensatory damages unless it presented

15

evidence that Local 254’s malicious accusations caused

the loss of specific contracts. (App. 15-16).

The Court of Appeals’ determination that Linn

requires proof of specific or special damages in addition

to proof of actual malice to recover for defamation in the

labor context was erroneous. The Court confused Linn’s

requirement of proving some compensable harm as

requiring proof of specific damages. (App. 15-16). The

Court of Appeals failed to recognize that “special dam-

ages” in a defamation case, that is, proof of pecuniary

loss apart from general injury to reputation, is required

only in those circumstances where there has been slander

or the words used are not defamatory on their face.

Prosser, Law of Torts, § 778 (1964). This case involved

libel which was defamatory on its face, as the handbills

accused Intercity of infecting its workers and attacked its

business reputation. Therefore, proof of special damages

was not required. Laudati v. Stea, 44 R.I. 303, 117 A. 422

(1922); O’Brien v. Times Pub. Co., 43 A. 101, 21 R.I. 256

(1899).

Ill. The First Circuit’s Opinion Foreclosing An Award

Of Punitive Damages Where A Defamed Business

Has Suffered Compensable Harm Of General

Injury To Reputation And Presumed Damages

Under State Law Is Destructive Of Federal Labor

Policy As Its Permits Unions To Publish Malicious

Libels With Immunity From Liability.

In the defamation context, punitive damages are

intended for the protection of the libeled individual's

reputation as well as the protection against like abuse of

all other persons similarly situated. Goldwater v. Ginzburg,

16

414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 90 S.

Ct. 701 (1970).

Without the counterbalancing deterrent of punitive

damages when unions cross the line into actual malice,

they will continue to publish malicious libels against non-

union businesses with impunity. The First Circuit’s hold-

ing eliminating the availability of punitive damages to

deter a union’s malicious libels, must be rectified by this

Court. Such a precedent effectively green-lights

unbridled, malicious defamation by labor unions to the

detriment of small businesses nationwide.

In Linn the Court held that in order to protect the

objectives of federal labor policy “the defamed party

must establish that he had suffered some sort of compen-

sable harm as a prerequisite to the recovery of additional

punitive damages”. Linn, 383 U.S. at 65, 86 S. Ct. at 665.

Thus, all that it required for an award of punitive dam-

ages is proof of compensable harm, which may be general

injury to reputation or be presumed, and proof of “actual

malice” under the New York Times standard, as analyzed

supra. Nevertheless, the First Circuit erroneously con-

cluded “absent evidence of actual damages, however, no

punitive damages may be awarded”. (App. 16).

Intercity convincingly proved harm to its business

reputation, entitling it to compensatory damages on its

defamation claims. Since Intercity adduced sufficient evi-

dence to meet both the actual malice standard under

federal law and compensable harm resulting from the

defamatory publications, Intercity’s claim for punitive

17

damages should have been submitted to the jury. Linn,

2 383 U.S. at 66, 86 S. Ct. at 665. :

+

CONCLUSION

For the reasons set forth herein, the petition for writ

of certiorari should be granted.

Respectfully submitted,

VincENT F. Racosta, Jr.

MatTHEw T. OLIVERIO

CHRISTINE M. CurLey

Shakespeare Hall - Penthouse

128 Dorrance Street

Providence, Rhode Island 02903

(401) 274-2100; FAX (401) 861-2260

Counsel for the Petitioner

App. i

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

UNITED STATES SUPREME COURT

OPINION OF THE FIRST CIRCUIT COURT OF

GEPRRED ssekssscc ete ee App. 1

JUDGMENT ENTERED BY THE FIRST CIRCUIT

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DECISION OF DISTRICT COURT GRANTING

DEFENDANTS MOTION FOR JUDGMENT AS

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FINAL JUDGMENT ENTERED BY DISTRICT

SAE 9 0545 Cad yaces bi Acuea eee uae App. 25

SUMMARY JUDGMENT OPINION OF DISTRICT

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PEGS Ne akicheke cnoc woke ie uk ess Lace App. 78

HANDBILLS DISTRIBUTED BY

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App. 1

United States Court of Appeals,

First Circuit.

INTERCITY MAINTENANCE COMPANY,

Plaintiff, Appellant,

Vv.

LOCAL 254, SERVICE EMPLOYEES INTERNATIONAL

UNION; SERVICE EMPLOYEES

INTERNATIONAL UNION, AFL-CIO; Victor Lima

and Donald Coleman, Defendants, Appellees.

No. 00-1522.

Heard Nov. 9, 2000.

Decided March 2, 2001.

Vincent F. Ragosta Jr., with whom Matthew T.

Oliverio and Christine M. Curley were on brief, for appel-

lant.

John B. Lawlor Jr., with whom Daniel V. McKinnon

and Dean J. Wagner were on brief, for appellees Local

254, Victor Lima and Donald Coleman.

Steven K. Hoffman, with whom Richard M. Peirce,

Adam C. Robitaille and Christy Hoffman were on brief,

for appellee Service Employees International Union.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit

Judge, and STAHL, Circuit Judge.

COFFIN, Senior Circuit Judge.

This case stems from a labor dispute in which local

union officials used heavy-handed tactics in an attempt to

unionize a company. Appellant Intercity Maintenance

Company (Intercity), a non-union janitorial service, sued

the Service Employees International Union (SEIU), its

App. 2

local affiliate (Local 254), and two of the affiliate’s offi-

cers, Victor Lima and Donald Coleman, for unlawful sec-

ondary activity in violation of § 303 of the Labor

Management Relations Act (LMRA), 29 U.S.C. § 187, and

a variety of state tort claims, two of them alleging defa-

mation. Summary judgment was granted to the SEIU and

Lima on all counts, and to Coleman on all but the defa-

mation claims. Local 254 went to trial on the federal claim

and, along with Coleman, on the two remaining state law

counts for defamation. After the close of the plaintiff’s

evidence, the court in a bench ruling granted defendants’

Rule 50 motion for judgment as a matter of law on the

three outstanding counts. We affirm the summary judg-

ment in all respects and the Rule 50 judgment on the

defamation claims, but remand the LMRA claim for

retrial.

We are in full agreement with the district court’s

convincing resolution of the summary judgment issues

and adopt its reasoning as articulated in its published

opinion. See Intercity Maint. Co. v. Local 254 Serv.

Employees Int'l Union, 62 F.Supp.2d 483 (D.R.I.1999). We

therefore focus our review on the Rule 50 judgment

granted at trial. Our brief recitation of the pertinent facts

is culled from the district court’s ruling, as well as rele-

vant trial testimony, and presented in the light most

favorable to Intercity. See Russo v. Baxter Healthcare Corp.,

140 F.3d 6, 8 (1st Cir.1998).

Background

Intercity provided janitorial services to Women and

Infants Hospital (Women & Infants) and Blue Cross/Blue

App. 3

Shield (Blue Cross) in Providence, Rhode Island, since

1989 and 1990, respectively. Beginning in late 1994, Local

254, acting through its director of organizing, Coleman,

and his assistant, Lima, made repeated attempts to per-

suade Intercity to unionize its eighty employees and let

Local 254 be their collective bargaining representative.

Intercity President Michael Bouthillette rebuffed these

overtures, refusing to sign the proposed collective bar-

gaining agreement because, he said, it was up to his

workers, not him, to decide whether to unionize.

In January and February 1995, Lima repeatedly

warned Bouthillette to sign the collective bargaining

agreement, or else Local 254 would drive Intercity out of

business by picketing in front of its two major customers,

Women & Infants and Blue Cross.! On March 28th, Cole-

man reiterated this threat to Blue Cross attorney Gary St.

Peter, who testified that Coleman had told him he would

throw up a picket line in front of Blue Cross “wheth-

er... it’s illegal or not.”

On March 20, 1995, Coleman sent two letters to Blue

Cross’s director of facilities management, John Leite, who

was in charge of procuring janitorial services. The first

letter, addressed to Bouthillette and copied to Leite,

accused Intercity of violating federal and state laws and

regulations in handling hazardous substances, and

demanded information about Blue Cross’s ventilation

? The threats made against Bouthillette personally were

such that the Rhode Island Superior Court granted him a

temporary restraining order, enjoining Lima from coniacting

him or his family.

App. 4

system. The second letter, sent the same day directly to

Leite, requested the same information from Blue Cross.

On May 5th, Blue Cross put its cleaning services

contract out to bid, and Intercity lost it to a unionized

bidder. Bouthillette testified that the bid Intercity submit-

ted, $6,597 per month, was the same price it had charged

since 1990 when it first started the Blue Cross account.

Bouthillette also testified that Leite had told him “we’re

going to go with the union contractor, and if you can

resolve things with [Local 254], there’s a good chance

you'll get [the contract] back, but if not. . . . if you don’t,

there’s not much of a chance.” At one point, Lima told

Bouthillette that Local 254 no longer wanted to organize

his workers; it just wanted to drive Intercity out of busi-

ness. By August 1995, Intercity was no longer servicing

Blue Cross.

Local 254 did not limit its interference with Inter-

city’s customers to Blue Cross. On March 31, 1995, Local

254 began a week-long picket line outside of Women &

Infants, distributing printed handbills that contained

grave accusations, including false references to Intercity

not providing health insurance or holiday pay to its

employees and paying less than the prevailing wage. In

fact, Intercity did provide those benefits and paid its

employees more than the union wage contemplated in the

proposed collective bargaining agreement. Bouthillette

testified that his contact at Women & Infants, Mark Neal,

told him on the day picketing started, “We can’t have this

here. . . . We’ll do what we have to do, but this doesn’t

look very good for you in the future.” Nearly two years

App. 5

later, in 1997, Intercity lost the contract for three build-

ings at Women & Infants, but continued to perform ser-

vices at seven others.

The original complaint, filed in 1995, alleged the

LMRA claim along with state tort causes of action and

was amended in 1997 to add separate counts for defama-

tion involving Blue Cross (Count IV) and Women &

Infants (Count V). As we have noted, only the LMRA

claim against Local 254, and the defamation claims

against Local 254 and Coleman, went to trial.

At trial, Bouthillette testified that Intercity suffered

pecuniary damage not only from losing the accounts, but

also from defendants besmirching its reputation, which

diverted Bouthillette from developing new business due

to the inordinate amount of time he spent reassuring

customers that they would not be targeted for picketing.

Plaintiff also introduced into evidence an accounting

report, which quantified Intercity’s loss from the Blue

Cross account at roughly $30,000 per year.

In a bench ruling issued at the close of the plaintiff’s

evidence, the court granted defendants’ Rule 50 motion

on all three claims. It held the evidence in support of

Intercity’s LMRA claim insufficient as a matter of law

because, even if Local 254’s actions were proscribed ille-

gal secondary activity (which was assumed for purposes

of the decision), Intercity failed to show how that activity

caused it to lose the Blue Cross and Women & Infants

accounts. As for the two defamation counts, the court

held that, although the evidence of knowing or reckless

false statements was “overwhelming,” Intercity presented

App. 6

“no evidence that the plaintiff lost business at Blue Cross

or at Women & Infants as a result of the defamation.”

Appellant argues that it presented sufficient evidence

on both fronts to reach the jury. On the LMRA claim,

appellant asserts that the jury should have been afforded

an opportunity to find that Intercity lost both the Blue

Cross and Women & Infants accounts due to Local 254’s

illegal interference. On the defamation claims, appellant

argues that it did not need to present evidence to prove

damages and, even if it did, its proof on damages was

sufficient. It also assigns error to the court’s refusal to

admit evidence of Local 254’s assets in support of a claim

for punitive damages.

We review Rule 50 challenges to the sufficiency of

evidence presented at trial de novo, affirming entry of

judgment as a matter of law “only if there ‘is no legally

sufficient evidentiary basis for a reasonable jury to find

for [the non-moving party].’ ” Tang v. Rhode Island Dep’t of

Elderly Affairs, 163 F.3d 7, 11 (1st Cir.1998) (quoting

Fed.R.Civ.P. 50(a)(1)). When judgment is entered before

the jury is called upon to render its verdict, we examine

the legal sufficiency of the evidence in the light most

favorable to the non-moving party, and require more than

a mere scintilla of evidence or speculation to justify the

submission of an issue to the jury. Id. And, of course, we

must ensure that the trial court has refrained from mak-

ing credibility determinations or weighing the evidence.

Discussion

Appellant challenges the court’s Rule 50 judgment,

arguing that its claims of unlawful secondary activity and

App. 7

defamation should have gone to the jury. We agree, in

part. As for the LMRA claim, we conclude that the evi-

dence linking Intercity’s loss of the Blue Cross account to

Local 254’s interference was sufficient to merit consider-

ation by a fact finder, but the evidence of losses attendant

to the union’s activities at Women & Infants was inade-

quate as a matter of law, particularly because that account

was not terminated until almost two years later. As for

the defamation claims, Intercity failed to introduce more

than a scintilla of evidence of reputational harm or other

specific damages. Accordingly, we remand the LMRA

claim for trial, limited to liability for, and damages stem-

ming from, Intercity’s loss of the Blue Cross account, and

affirm the district court’s judgment on the defamation

claims.

Unlawful Secondary Activity

Section 8(b) of the LMRA makes it an unfair labor

practice for unions to threaten, coerce, or restrain a com-

pany by forcing it to cease doing business with another

company. See 29 U.S.C. § 158(b)(4)(ii)(B).2 Direct efforts to

2 “(b) It shall be an unfair labor practice for a labor

organization or its agents —

(4) (ii) to threaten, coerce, or restrain any person engaged in

commerce or in an industry affecting commerce, where in either

case an object thereof is -

(B) forcing or requiring any person to cease . . . doing business

with any other person, or forcing or requiring any other

employer to recognize or bargain with a labor organization as

the representative of his employees unless such labor

organization has been certified as the representative of such

employees under the provisions of section 159 of this title:

App. 8

pressure an employer with whom a union has a dispute

are acceptable, but indirect efforts to pressure a second-

ary employer are unfair labor practices. Abreen Corp. v.

Laborers’ Int'l Union, 709 F.2d 748, 754-55 (1st Cir.1983).

Here there was no dispute that Blue Cross was a second-

ary employer. Coleman, acting on behalf of Local 254,

threatened to picket Blue Cross unless it ceased doing

business with Intercity, a threat made not only to Bou-

thillette, but repeated to his attorney and the attorney for

Blue Cross. The district court recognized this as “epito-

miz{ing] the classic description of coercion within the

labor law context.” Intercity, 62 FSupp.2d at 496 (“The

evidence presented by plaintiff is not subtle; it reveals a

transparent intention by Local 254 to pressure Blue Cross

improperly.”).

Despite this strong evidence of Local 254’s improper

secondary activity, the court did not let the claim go to

the jury. It entered judgment for Local 254 on the ground

that Intercity had failed to offer sufficient evidence that it

lost the Blue Cross account because of Local 254’s unlaw-

ful conduct. In analyzing Intercity’s loss of the Blue Cross

account, the court reasoned:

There is not one shred of evidence produced at

this trial to indicate why Blue Cross elected to

put its janitorial contract out to bid. No one

from Blue Cross testified. The Court and the

jury can draw the inference that the failure of

the plaintiff to produce Leite, who was the key

Provided, That nothing contained in this clause (B) shall be

construed to make unlawful, where not otherwise unlawful, any

primary strike or primary picketing. ...” 29 U.S.C. § 158.

App. 9

man in this area, and probably made the deci-

sion, was because his testimony would have

been of no value to the plaintiff. The point is

that Blue Cross did put all of its janitorial work

out to bid. The Plaintiff did bid, and didn’t

receive the bid and didn’t receive the contract.

The inference is that the plaintiff was not the

low bidder. In any event, there’s no evidence

from Blue Cross as to why the plaintiff was not

chosen. The jury should not be allowed to spec-

ulate because it is the plaintiff that has the bur-

den of proof, and it is the plaintiff’s obligation

to produce witnesses who will support its cause

of action. In this case the plaintiff has failed to

do so.

This reasoning was in error because the court imper-

missibly drew negative inferences against Intercity. It

inferred that the failure to call Leite “was because his

testimony would have been of no value” and that Inter-

city lost the Blue Cross contract because “plaintiff was

not the low bidder.” The jury could have reasonably

concluded otherwise.

As to the sufficiency of the evidence, the court simply

noted that there was no basis for a finding of proximate

cause. Neither it nor the parties attempted to give this

term further definition. In our own jurisprudence dealing

with unlawful activity, we have had three occasions to

consider when, in accordance with the statutory wording,

damages may be said to have been sustained “by reason

of” the illegal activity. 29 U.S.C. § 187(b).3 But in this case

3 In Abreen, our first such case construing the “by reason

of” element, we held that where predominantly secondary

App. 10

any difference between these standards is irrelevant, for

under either formulation Intercity presented enough evi-

dence at trial to warrant submission to the jury.

Bouthillette testified that Intercity lost its account

with Blue Cross, not because it overbid,* but because of

Local 254’s threatened picket. Blue Cross attorney St.

Peter corroborated Bouthillette’s testimony about the

union’s unlawful threat. Bouthillette further testified that

Blue Cross’s own procurement officer, Leite, told him that

Intercity would likely lose the account if it did not resolve

activity is at issue, losses traceable to that unlawful union

conduct may be recovered. 709 F.2d at 759. Our two subsequent

cases, however, invoked a more exacting standard adopted from

the Ninth Circuit’s decision in Mead v. Retail Clerks Int'l Ass’n,

523 F.2d 1371 (9th Cir.1975), which held that injury occurs “by

reason of” particular unlawful conduct only if that conduct

“materially contributes” to the injury or is a “substantial factor”

in bringing it about. Id. at 1376; see John B. Cruz Constr. Co., Inc. v.

United Bhd. of Carpenters and Joiners, 907 F.2d 1228, 1232 (1st

Cir.1990); Tresca Bros. Sand & Gravel, Inc. v. Truck Drivers Union,

19 F.3d 63, 65 (1st Cir.1994). Although we did not explicitly note

the distinction, Cruz and Tresca are distinguishable from Abreen

because they involved both lawful and unlawful union activity.

The Mead rule, and our cases applying it, do not apply where

only prohibited secondary activity is at issue.

4 At trial, defense counsel suggested in his opening

statement that Intercity’s bid was nearly double the amount to

which Bouthillette later testified, and more than that of the

unionized bidder who won the contract. Of course, since the

judgment entered before defendants put on their case, they had

no opportunity to substantiate this claim. Because counsel’s

statement was not evidence, we, like a jury, may not consider it,

see, e.g., United States v. Brassard, 212 F.3d 54, 57 (1st Cir.2000),

and therefore must credit Bouthillette’s testimony.

App. 11

the dispute with the union.5 Although plaintiff did not

call Leite to testify, the jury was entitled to consider

Bouthillette’s uncorroborated testimony. Indeed, assum-

ing favorable and permissible inferences and that Bou-

thillette was to be believed, there was no other competing

cause for Intercity’s loss of business.

Moreover, the timing of events permitted the jury to

infer that Intercity’s loss was caused by Local 254’s con-

duct. The last readily identifiable unlawful act was Cole-

man’s threat made to attorney St. Peter on March 28th;

Blue Cross put its contract out to bid on May 5th. The

court foreclosed jury consideration of a permissible infer-

ence, i.e., that these two events - which occurred just five

weeks apart — were causally related. This it may not do.

Because the timing and Bouthillette’s testimony, if

believed, would have sufficed as a matter of law to prove

that Intercity’s loss of the Blue Cross account occurred by

reason of Local 254’s unlawful activity, the LMRA claim

should have been decided by the jury.

Intercity’s loss of the Women & Infants account, by

contrast, is unsupported by such an inference. The nearly

two-year gap between Local 254’s picketing and leaflet-

ing there and Women & Infants’s curtailment of its busi-

ness with Intercity was too attenuated on its own to

permit an inference of some causal connection between

these events. Bouthillette’s testimony that his contact at

Women & Infants, Neal, had made a reference to the

union activity not boding well for Intercity’s future, was

> The court admitted this hearsay testimony over an

objection and without a limiting instruction. Neither party takes

exception to this ruling on appeal.

App. 12

too opaque to rise above the scintilla level, especially in

light of the timing of adverse action. The district court

correctly found the evidence insufficient as a matter of

law to prove Intercity lost any part of the Women &

Infants account by reason of Local 254’s activity.

Defamation

Intercity pleaded its defamation claim in two counts,

one involving Blue Cross (Count IV) and the other

involving Women & Infants (Count V). In support of

Count IV, Intercity relied on Coleman’s March 20, 1995,

letter to Blue Cross’s Leite, which announced that “Inter-

City [wa]s in violation of both Federal and State laws and

regulations.” Count V alleged defamation from handbills

distributed at Women & Infants, which claimed that

“INTERCITY expose [d] its cleaners to chemical and bio-

logical hazards including HIV and Hepatitis B virus,” and

that Intercity did not provide certain benefits or pay a

living wage. Local 254 made scant effort to investigate the

veracity of these charges.

‘ In its summary judgment ruling, the district court

correctly found these assertions to be statements of fact,

not opinion, requiring a jury to determine whether they

were false and made with malice. See Intercity, 62

F.Supp.2d at 504-05. As the court stated in its Rule 50

6 The court also rightly noted that certain other statements

— characterizing Intercity as a “sweatshop,” a “plague,” and an

“infestation,” and Bouthillette as a “bloodsucking, plantation-

minded boss” — were non-actionable opinion, “rhetorical

hyperbole” typical of labor disputes and protected under the

LMRA. Id. at 503. .

App. 13

decision, the evidence presented at trial was “over-

whelming that those statements were either knowingly

false or made with reckless disregard for truth or falsity.”

The judge remarked, “plaintiff has succeeded in proving

that the defendants . . . are lawless, marauding, disin-

genuous, character assassins who deserve their comeup-

pance.” Despite the strong evidence of malice, however,

the court ruled there was “no basis for submitting this

cause of action to the jury” because plaintiff failed to

“allege and prove specific or special damages.”

Relying on Linn v. United Plant Guard Workers, Local

114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), the

court held that Intercity could not rest on the common

law presumption of damages, in which the existence of

injury is presumed from the fact of publication without

evidence of actual loss. See generally Gertz v. Robert Welch,

Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 41 L.Ed.2d 789

(1974); Carey v. Piphus, 435 U.S. 247, 262 & n. 18, 98 S.Ct.

1042, 55 L.Ed.2d 252 (1978). Appellant argues that the

court misread Linn, and contends in the alternative that it

did present sufficient evidence of damages even without

the presumption. We agree with the court's reading of the

law and view of the evidence.

State tort claims are generally preempted by the

LMRA. See San Diego Bldg. Trades Council v. Garmon, 359

U.S. 236, 243-44, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In

Linn, the Court carved out an exception to the Garmon

preemption rule for defamatory statements made with

actual malice, adopting the standard applicable to public

officials from New York Times Co. v. Sullivan, 376 U.S. 254,

280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (defining mali-

cious libel as a statement published “with knowledge that

App. 14

it was false or with reckless disregard of whether it was

false or not”). See Linn, 383 U.S. at 65, 86 S.Ct. 657; see also

Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers

v. Austin, 418 U.S. 264, 273, 94 S.Ct. 2770, 41 L.Ed.2d 745

(1974); Barss v. Tosches, 785 F.2d 20, 21 (1st Cir.1986).

In addition to malice, Linn requires “proof of []

harm, which may include general injury to reputation,

consequent mental suffering, alienation of associates,

specific items of pecuniary loss, or whatever form of

harm would be recognized by state tort law.” 383 U.S. at

65, 86 S.Ct. 657; accord Belknap, Inc. v. Hale, 463 U.S. 491,

509, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983); Farmer v. United

Bhd. of Carpenters & Joiners, Local 25, 430 U.S. 290, 299, 97

S.Ct. 1056, 51 L.Ed.2d 338 (1977). In explicitly requiring

proof of harm, Linn preempts not only non-malicious

libels, but also reliance on the common law presumption,

of damages in those jurisdictions where libel is actionable

per se. 383 U.S. at 58 & n. 2, 65, 86 S.Ct. 657.7 Therefore,

7 In Rhode Island, a common law action for defamation

requires proof of “damages, unless the statement is actionable

irrespective of special harm.” Swerdlick v. Koch, 721 A.2d 849,

859-60 (R.1.1998). Under the common law rule damages are

presumed, and the need to offer evidence obviated, if the

defamatory statement is libelous per se. See id. at 861 (“[FJor

statements to qualify as libel per se, the publication must

impute insolvency, financial embarrassment, unworthiness of

credit, or failure in business to a plaintiff, but to make them so it

is essential that such imputation relate to or affect the plaintiff

in his business.”) (internal quotation marks and alterations

omitted). Since Intercity presented evidence of harm to its

business based on statements that are defamatory on their face,

it would have been able to take advantage of the common law

presumption of damages if the statements had not been made in

the context of a labor dispute.

App. 15

plaintiffs who endure even malicious libels during a labor

dispute must present evidence of harm from defamation

in order to recover, notwithstanding the law of states

such as Rhode Island in which damages would otherwise

be presumed. Cf. Dunn v. Air Line Pilots Ass'n, 193 F.3d

1185, 1210-11 (11th Cir.1999) (Tjoflat, J., dissenting)

(“Under federal law, [ ] a libel action arising out of a labor

dispute requires proof of injury, regardless of state libel

law.” (citing Linn, 383 U.S. at 64-65, 86 S.Ct. 657)).

Under Linn, Intercity could not rest on an unsubstan-

tiated allegation of injury to its reputation. Having cor-

rectly concluded that Linn preempted Intercity from

relying on the common law presumption of damages, the

district court held that the evidence of actual loss due to

reputational harm and consequent lost profits was insuf-

ficient as a matter of law. We agree that Intercity offered

no more than a scintilla of evidence to prove losses stem-

ming from diminished reputation. However, in its

amended complaint Intercity also sought to substantiate

its claim for defamation with evidence of specific dam-

ages apart from reputation: the loss of the Blue Cross and

Women & Infants accounts.

Had appellant shown that it lost the contracts as a

result of Coleman’s libelous letters or the defamatory

handbills, then such proof of a “specific item of pecuniary

loss” would have satisfied the damages element required

by Linn. 383 U.S. at 65, 86 S.Ct. 657. But Intercity pre-

sented no evidence — not even hearsay testimony from

Bouthillette - to show the loss of the contracts resulted

from Local 254’s malicious accusations. The only such

testimony related to threats of union retaliation. The evi-

dence in support of specific damages pleaded in Counts

App. 16

IV and V was therefore inadequate to merit jury consider-

ation.

Intercity also argues that it should have been permit-

ted to recover punitive damages and introduce evidence

of Local 254’s assets in support of that claim. Absent

evidence of actual damages, however, no punitive dam-

ages may be awarded. See Linn, 383 U.S. at 66, 86 S.Ct. 657

(“[A] defamed party must establish that he had suffered

some sort of compensable harm as a prerequisite to the

recovery of additional punitive damages.”). Because

plaintiff failed to present evidence from which the jury

could have found that Intercity suffered actual harm due

to defamation, the district court properly refused to

admit evidence of punitive damages.

Conclusion

We remand for retrial Count II of the Amended Com-

plaint, the LMRA claim; in all other respects, the judg-

ment is affirmed.

Affirmed in part, vacated in part and remanded. No costs.

App. 17

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 00-1522

INTERCITY MAINTENANCE COMPANY,

Plaintiff, Appellant,

V.

LOCAL 254, SERVICE EMPLOYEES INT ERNATIONAL

UNION; SERVICE EMPLOYEES INTERNATIONAL

UNION, AFL-CIO; VICTOR LIMA AND

DONALD COLEMAN,

Defendants, Appellees.

JUDGMENT

Entered: March 2, 2001

This cause came on to be heard on appeal from the

United States District Court for the District of Rhode

Island, and was argued by counsel.

Upon consideration whereof, it is now here ordered,

adjudged and decreed as follows: The judgment of the

district court is affirmed in Part, vacated in part and

remanded to the district court in accordance with the

opinion issued this day. No costs.

By The Court

Phoebe D. Morse

Clerk.

[cc: Messrs. Ragosta, Jr., Lawlor, Jr., & Hoffman]

App. 18

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

2 Me he he he he ee a a a a a a a a a a a a OO a a a

INTERCITY MAINTENANCE CO.

V.

LOCAL 254 SERVICE

~ EMPLOYEES INTERNATIONAL PROVIDENCE, RI

UNION, SERVICE EMPLOYEES 11 APRIL 2000

INTERNATIONAL UNION,

AFL-CIO, VICTOR LIMA and

DONALD COLEMAN

2 De a a ee a a a OO a a OO a OO OO Oh OO

C.A. NO. 95-630 L

BEFORE HONORABLE DISTRICT JUDGE

RONALD R. LAGUEUX

(AND A JURY)

APPEARANCES:

FOR THE PLAINTIFF: VINCENT F. RAGOSTA, JR.,

ESQ.

MATTHEW T. OLIVERIO,

ESQ.

128 Dorrance St.

Providence, RI 02903

274-2100

CHRISTINE M. CURLEY,

ATTY.

275 Beacon Drive

North Kingstown, RI 02852

294-0847

App. 19

FOR THE DEFENDANTS: DANIEL V. MC KINNON,

ESQ.

DEAN J. WAGNER, ESQ.

1168 Newport Avenue

Pawtucket, RI 02861

723-9655

Court Reporter: JOSEPH A. FONTES

Two Exchange Terrace

Providence, RI 02903

401-273-0344

Proceeding reported and produced by

computer-aided stenography

” * -

[32] THE COURT: All right. This is the motion of

the defendants, Local 254 and Coleman, for judgment as a

matter of law after the presentation of the plaintiff’s case

on the three remaining counts of this amended complaint.

Count II charges a violation of 303 (a), illegal second-

ary activity; and Counts IV and V are the defarnation

counts. Count IV relating to publication to Blue Cross,

and Count V, publication to Women & Infants.

In deciding a motion of this type, the Court must

view the evidence in the light most favorable to the

plaintiff and draw all reasonable inferences in favor of

the plaintiff. I will first deal with the defamation counts.

I made a comprehensive ruling on this matter yester-

day at a premature stage in the litigation because I had to

decide whether certain evidence was admissible. To

determine the [33] admissibility of that evidence, I had to

determine whether a prima facie case of defamation had

been made out and, in addition, if one had been made

App. 20

out, whether a prima facie case for punitive damages had

been made out. So I had to analyze the state of the

evidence at that time. The state of the evidence has not

changed. The plaintiff has succeeded in proving that the

defendants, Local 254 and Coleman, and other employees

of the Local, such as Sullivan and Lima, are lawless,

marauding, disingenuous, character assassins who

deserve their comeuppance. However, plaintiff has failed

to prove every element of a defamation cause of action in

this context. Proving some of the elements of defamation

is not enough to send that cause of action to a jury.

As I indicated yesterday, the evidence indicates that

Coleman and Sullivan, and Local 254, made false state-

ments of fact by writing letters to Blue Cross and Women

& Infants, and by distributing leaflets at Women &

Infants. The evidence is overwhelming that those state-

ments were either knowingly false or made with reckless

disregard for truth or falsity. But in a situation where the

Supreme Court has occupied the field, that’s not enough.

It’s not enough even to add that the [34] defamations

were made with actual malice in the common law sense,

that is, with the intent to do harm to the plaintiff.

The Supreme Court has made it clear in Linn, and in

other cases, that the per se libel rule that is in effect in

most states is not applicable in this context and, there-

fore, the plaintiff must allege and prove specific or spe-

cial damages.

In this case, there is no evidence from which the jury

could conclude that the plaintiff has succeeded in prov-

ing special damages arising out of the defamation. It

would be sheer speculation for the jury to conclude that

App. 21

the plaintiff suffered some type of loss as a result of these

libelous statements. There’s absolutely no evidence that

the plaintiff lost business, because the plaintiff is a corpo-

ration here, and that’s a very important consideration in

the case. It is the plaintiff who has brought this suit for

defamation. There is no evidence that the plaintiff lost

business at Blue Cross or at Women & Infants as a result

of the defamation, therefore, there’s no basis for submit-

ting this cause of action to the jury. The jury simply

cannot come back with a verdict for the plaintiff on this

defamation cause of action and, [35] therefore, as I stated

yesterday, I have to grant a directed verdict to the defen-

dants, Local 254 and Coleman, on Counts IV and V. It’s

now called judgment as a matter of law, and that’s what

will be entered, a judgment for those defendants on

Counts IV and V.

Now let’s get to the claim for a 303 violation, illegal

secondary activity. It is clear that this cause of action

implicates two little words, “proximate cause”. That’s

where the horse is buried in this case. The weakness in

plaintiff’s case in this area was evident from the very

beginning. I will assume, for purposes of deciding the

motion on that count, that the plaintiff has made out

enough of a case to go to the jury on whether there were

sufficient threats and coercion exercised by the Local on

Blue Cross and Women & Infants. The question, however,

is whether that illegal secondary activity proximately

caused the plaintiff to lose business.

First, let’s take Blue Cross. The evidence is clear that

plaintiff had a business relationship with Blue Cross

which was an at-will relationship. Blue Cross could ter-

minate it at anytime, as could the plaintiff. There is not

App. 22

one [36] shred of evidence produced at this trial to indi-

cate why Blue Cross elected to put its janitorial contract

out to bid. No one from Blue Cross testified. The Court

and the jury can draw the inference that the failure of the

plaintiff to produce Leite, who was the key man in this

area, and probably made the decision, was because his

testimony would have been of no value to the plaintiff.

The point is that Blue Cross did put all of its janitorial

work out to bid. The plaintiff did bid, and didn’t receive

the bid and didn’t receive the contract. The inference is

that the plaintiff was not the low bidder. In any event,

there’s no evidence from Blue Cross as to why the plain-

tiff was not chosen. The jury should not be allowed to

speculate because it is the plaintiff that has the burden of

proof, and it is the plaintiff's obligation to produce wit-

nesses who will support its cause of action. In this case

the plaintiff has failed to do so.

Therefore, there is no evidence before this jury from

which they could find that the defendant Local's illegal

secondary activity was the proximate cause of the plain-

tiff losing the Blue Cross business.

The same situation obtains with Women & [37]

Infants business. As a matter of fact, it couldn’t be any

more clear that there is a complete lack of proof of

proximate cause in the Women & Infants situation. The

evidence is that there was a picket line thrown up at

Women & Infants by the defendant, but that was over by

early April 1995. It wasn’t until almost 2 years later that

Women & Infants decided to change its janitorial arrange-

ments, but plaintiff didn’t lose out completely. It kept

some of the business. There is absolutely no evidence in

the record as to why Women & Infants did that at that

App. 23

time. It would be sheer speculation for a jury to conclude

that it was because of some picketing that occurred

almost two years before.

Again, it is the plaintiff’s obligation to produce evi-

dence on proximate cause, and plaintiff has utterly failed

to do so in this respect. This is the weakness in plaintiff's

case. It was a weakness that should have been evident

throughout this trial. It was an issue that the Court was

watching very carefully because the Court saw this issue

by reading the pretrial memoranda. The plaintiff has just

failed to prove a case. Maybe there’s some solace in the

fact that there has been some proof that defendant Local

acts in a reckless and unlawful way [38] when it suits its

purposes. But unfortunately for plaintiff, there’s been no

showing that the Local must respond in damages in this

case.

So the motion of the defendant Local for judgment as

a matter of law on Count II is granted. This wraps up this

whole case. The Court has previously granted summary

judgment. So all five counts of the complaint have been

disposed of. Judgment will be entered for the defendants

on all five counts of the complaint.

To recapitulate, all defendants were granted sum-

mary judgment with respect to Counts I, III and VI.

Actually, there were six counts in the complaint.

On Count II, the Court granted summary judgment

to the International, Lima and Coleman, and now grants

the motion for judgment as a matter of law of the Local.

So judgment will be entered for all defendants on Count

II, as well.

App. 24

On Counts IV and V of the amended complaint, the

motions of the International and Lima were granted, and

now the motion for judgment as a matter of law by Local

254 and Coleman are granted. So the clerk can put it in

shorthand form, judgment for all defendants on all six

counts of the amended [39] complaint will be entered.

The clerk will enter that judgment forthwith. The plaintiff

may have an objection to the Court’s ruling for preserva-

tion of its appellate rights. Bring the jury in and I'll

discharge them.

App. 25

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Intercity Maintenance Co. CA No. 95-630L

Vs.

Local 254, Service Employees Int'l

Union, Victor Lima and Donald

Colement

Judgment

[ ] Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendere

[X] Decision by the Court. This action came to trial or

hearing before the Court. The issues have been tried

or heard an

IT IS ORDERED AND ADJUDGED:

Judgment for the Defendants on all counts of the

Amended Complaint

/s/ Barbara J. D’Amico

Deputy Clerk

April 11, 2000

App. 26

United States District Court,

D. Rhode Island.

INTERCITY MAINTENANCE CO., Plaintiff,

V.

LOCAL 254 SERVICE EMPLOYEES INTERNATIONAL

UNION, Service Employees International Union,

AFL-CIO, Victor Lima, and Donald Coleman,

Defendants.

No. 95-630.

July 29, 1999.

Vincent F. Ragosta, Jr., Matthew Oliverio, Providence,

RI, Christine M. Curley, N. Kingstown, RI, for plaintiff.

Daniel V. McKinnon, McKinnon & Harwood,

Pawtucket, RI, Richard M. Peirce, Roberts, Carroll, Felds-

tein & Peirce, Inc., Providence, RI, Eunice Harris Wash-

ington, Service Employees Int’l Union, AFL-CIO, CLC,

Washington, DC, Steven K. Hoffman, James & Hoffman,

Washington, DC, for defendants.

OPINION AND ORDER

LAGUEUX, Chief Judge.

This litigation embodies the classic struggle between

employer and union. In this labor dispute, like in many

others that escalate to such a dramatic level of contention,

the former is committed to operating on a non-union

basis while the latter is equally devoted to challenging

that employer’s labor policy. Economic philosophies

clashed. An often personal battle of wills ensued, replete

with threats, posturing, and collateral damage. Plaintiff

Intercity Maintenance Co. (“Intercity”) alleges that the

App. 27

union defendants crossed the bounds of acceptable

behavior established by the labor laws that govern orga-

nizing campaigns. Most importantly, Intercity avers dam-

age to its business from improper secondary boycotting

orchestrated by defendants. Plaintiff also presses a vari-

ety of state tort claims, including tortious interference

with its business relationsh:ps, defamation, and violation

of its privacy rights. Plaintiff seeks to hold liable union

actors all along the chain of command, from the Service

Employees International Union, AFL-CIO (“Interna-

tional” or “SEIU”) and Local 254 Service Employees

International Union (“Local 254”) to individual union

officials Victor Lima (“Lima”) and Donald Coleman

(“Coleman”). Defendants counter with a raft of defenses

and move for summary judgment on all counts of the

Amended Complaint. For the reasons stated below,

defendants’ Motions for Summary Judgment are granted

in part and denied in part.

BACKGROUND

On a motion for summary judgment, the Court must

view all evidence and related reasonable inferences in the

light most favorable to the nonmoving party. See Spring-

field Terminal Ry. Co. v. Canadian Pac. Ltd., 133 F.3d 103,

106 (1st Cir.1997). The following factual recital is con-

structed with that instruction in mind.

Intercity, a small corporation based in Cumberland,

Rhode Island, provides janitorial services to commercial

buildings in the Providence, Rhode Island area. Michael

Bouthillette (“Bouthillette”), president of Intercity, hoped

to establish the company as an important provider of

App. 28

janitorial services to the health care sector in Providence.

To this end, Intercity secured work at the Providence

facilities of Women & Infants Hospital (“Women &

Infants”) and Blue Cross/Blue Shield of Rhode Island

(“Blue Cross”). As of late 1994, none of Intercity’s

employees were unionized. Local 254 wished to change

that.

In December 1994, Lima, an employee of Local 254

assigned to the task of organizing janitorial workers in

Providence, telephoned Bouthillette to announce that

Local 254 planned to organize Intercity’s employees

working at the Blue Cross site. Lima requested that Inter-

city voluntarily recognize Local 254 as the workers’ col-

lective bargaining agent. Bouthillette refused the offer

and explained that the decision would have to be made

by the workers themselves. The two parties jousted over

the telephone without resolution for some time. Lima

approached Intercity employees at their Blue Cross job

site and encouraged them to sign union affiliation cards.

Some apparently did so. Bouthillette, learning of this

intrusion into the employees’ work day, ordered Lima to

leave Intercity’s employees alone when they were work-

ing. In January 1995, Lima and Bouthillette agreed to

meet face to face.

At the meeting between Bouthillette and Lima, also

attended by Robert Richard, Bouthillette’s friend, Lima

presented Bouthillette with signed affiliation cards from

Intercity employees working at the Blue Cross site. Lima

insisted that Local 254 was only interested in represent-

ing Intercity’s employees working at that facility, and not

those working at other buildings in the area. According

to Bouthillette, Lima insisted that if Intercity did not

App. 29

comply with Local 254’s request for voluntary recogni-

tion, the union would cause the company to lose the Blue

Cross job, harass people associated with Intercity, and

eventually drive Intercity out of business. Bouthillette

recalls that Lima boasted that the union would use “Lat-

ino terrorist organizations,” ex-convicts, and homeless

people to accomplish its goals. To lend credence to these

threats, Bouthillette maintains, Lima explained that Local

254 had severely damaged the business of another local

janitorial services company, Aid Maintenance, for resist-

ing the union’s efforts to organize. Nonetheless, Bou-

thillettte remained steadfast in his refusal to knuckle

under.

Undeterred, the persistent Lima and Local 254

pressed on with their organizing campaign. Attempts by

Lima to speak to Intercity employees at the Blue Cross

site were rebuffed by Intercity and Blue Cross security.

Local 254 also renewed its efforts to convince Bouthillette

to voluntarily recognize the union. Coleman, the director

of organizing for the local, and Lima, Coleman’s assis-

tant, spoke to the company president on several occasions

in January and February 1995. Unknown to the union

representatives, Bouthillette recorded many of those con-

versations. Bouthillette now presents the transcripts of

those audio recordings as evidence.

During these telephone discussions, Lima and Cole-

man first tried to cajole Bouthillette into coming around

to their position. As Bouthillette stood firm, the two

union officials eventually turned up the heat. During one

conversation, Lima responded to Bouthillette’s continued

defiance with the following threat: “Well, then we’re

going to fight you all the way on this. We’re going to call

App. 30

Blue Cross/Blue Shield and put a picket line up.” Later in

that same conversation, Lima offered the following:

“Well, I’m just going to tell you what’s going to happen

now. I don’t know how long you'll probably stay at Blue

Cross, but I’m going to call them up right after I talk to

you.” Lima soon thereafter made his intentions express:

“I guarantee you, Blue Cross ain’t going to tolerate a

picket line up there because we’ve picketed them in Bos-

ton before and all the other unions. We’re going to put a

nationwide boycott there, you think they’re going to like

that?” Bouthillette inferred a threat of violence from

Lima’s warning that he knew where Bouthillette lived

and from Lima’s boast that Local 254 could rely on the

aid of “terrorists” to achieve their objectives. On Febru-

ary 21, 1995, Bouthillette obtained from Rhode Island

Superior Court a restraining order against Lima and any

agents acting on his behalf.

By early March, Blue Cross officials had become con-

cerned. John Leite (“Leite”), the Director of Facilities

Management for Blue Cross and the official responsible

for selecting janitorial contractors, called Bouthillette to

ask about Intercity’s confrontations with Local 254 at the

Blue Cross facility. Leite ordered Bouthillette to settle the

dispute. Plaintiff alleges that several weeks later Leite

explained to Bouthillette that Intercity would be dis-

missed unless they agreed to the union’s demands.

According to plaintiff, Leite was primarily concerned

with putting a halt to the disruptions within the Blue

Cross facility.

Lima continued to call Bouthillette in March. Bou-

thillette maintains that Lima threatened to put Intercity

out of business unless he complied with the wishes of

App. 31

Local 254. There is also evidence that officials of the

union directly threatened Blue Cross. In an affidavit filed

in support of plaintiff’s cause, Gary St. Peter (“St.Peter”),

a labor relations attorney for Blue Cross, describes a

telephone conversation he had with Coleman on March

28, 1995. St. Peter claims that Coleman identified himself

as an agent of Local 254. Coleman explained that the

union was engaged in an organizing campaign of Inter-

city employees. St. Peter states that Coleman then threat-

ened retaliation. The affidavit explains that Coleman said

“[t]hat if Blue Cross/Blue Shield of Rhode Island did not

pressure Intercity into recognizing Local 254 as the exclu-

sive bargaining representative for Intercity’s employees,

[Local 254] would throw up a picket line at [Blue Cross’s]

premises.” St. Peter contends that he warned Coleman

that such action would constitute prohibited secondary

activity and that Coleman responded that the union

would do it anyway.

Local 254 launched a new tactic against Intercity in

late March 1995. In a March 20, 1995 letter to Bouthillette,

copied to Leite, Coleman declared that “a health emer-

gency exists at Blue Cross Blue Shield and Women and

Infants Hospital.” Coleman alleged that Intercity was in

violation of federal and state health laws by failing to

provide employees with safety books or federally-

approved safety training for handling hazardous sub-

stances. The letter specifically noted that Intercity regu-

larly violated the “Blood Born Pathogen Act in that its

cleaners on a daily basis are being exposed to urine,

excrement and vomit that could contain contaminated

blood.” Coleman asserted that the company had not pro-

vided employees with proper protective clothing and

EL eR te a

App. 32

equipment. The letter concluded by asking a series of

questions mainly related to a work site’s ventilation sys-

tem, though it is unclear from the letter to which site the

questions relate.

That same day, Coleman wrote a letter to Leite

explaining that Intercity had refused his request for infor-

mation. Coleman, stated that “the union has a duty to

protect its members along with the employyes [sic] of

Bluecross [sic] from sickness and hazzards [sic] caused by

chemical contamination.” The letter demanded answers

to the union’s questions immediately.

Plaintiff alleges that the union’s actions damaged its

business relationship with Blue Cross. Intercity entered

into a contract to provide janitorial! services to Blue Cross

in 1990. The one-year pact was renewed by Blue Cross the

next year and each subsequent year until 1995. The par-

ties often dispensed with contract formalities. They never

executed new written agreements, but continued the rela-

tionship according to the terms of the 1990 writing. Each

year Blue Cross sent Intercity a new purchase order for

janitorial services for the upcoming year and Intercity

continued its work without the necessity of bidding or

negotiations. Plaintiff alleges that Blue Cross officials

were thoroughly satisfied with the company’s perfor-

mance.

In the midst of Intercity’s conflict with Local 254 in

the early months of 1995, Bouthillette discussed with

Leite a plan to provide Blue Cross with janitorial services

during its planned construction project, expected to last

for two years. By May, however, Leite’s attitude had

changed. Blue Cross decided to request competing bids

App. 33

on the janitorial services contract, something it had not

done since first hiring Intercity in 1990. Bouthillette testi-

fied at his deposition about a conversation he had with

Leite after learning that the Intercity contract would not

be automatically renewed as had been done in the past,

even though Intercity had not increased its proposed

charges for the next year. Bouthillette claims that Leite

explained that the contract was being bid because of

Intercity’s union troubles. Furthermore, Bouthillette

alleges that Leite expressed an ultimatum: Intercity had a

good chance at winning the contract if it agreed to Local

254’s request, but it had no chance at all if Intercity

continued to snub the union. Still, Bouthillette refused to

negotiate with Local 254.

Blue Cross did not select Intercity for the cleaning

contract. On June 29, 1995, Edward T. Sullivan, Jr., Local

254’s Business Manager, wrote to John J. Sweeney, Presi-

dent of the International, touting Local 254’s achieve-

ments in the region. Sullivan proudly reported “that

Intercity has been expelled at Blue Cross/Blue Shield and

replaced by a Local 254-contracted cleaner.”

The union’s strategy for organizing Intercity was not

limited to pressuring Blue Cross. Plaintift claims that in

late March or early April 1995, Lima spoke to Intercity

employees working at Women & Infants. Beginning at the

end of March, Local 254 picketed Intercity at Woman &

Infants for one week. Picketers distributed handbills to

all who entered the hospital, including employees of

Women & Infants, patients, and other visitors. The leaf-

lets were clearly identified as the work of Local 254, and

at least two of them were styled as letters to the public

from Sullivan.

App. 34

One handbill depicted a large bug encircled and

crossed out by a diagonal line accompanied by the head-

line “Women and Infants TICKS us off.” The leaflet read

as follows:

INTERCITY MAINTENANCE COMPANY is an

infestation that sucks the blood of Latino

workers. Janitors at Women and Infants’ Hospi-

tal are human beings and should not be treated

as animals. INTERCITY has infected its cleaners

as follows:

INTERCITY does not pay a living wage

INTERCITY does not pay Holiday pay

INTERCITY does not pay health insurance

INTERCITY exposes its cleaners to chemical and

biological hazards including HIV and Hepatitis

B virus

WE DEMAND JUSTICE FOR JANITORS!

STOP THE SPREAD OF THE INTERCITY

PLAGUE!!

In another leaflet, Sullivan labeled Intercity “a noto-

rious company.” The handbill continued by claiming that

the cleaning company pays

its workers well below area standards, with lit-

erally no health insurance, paid holidays, vaca-

tion, pension, or job security rights. Intercity has

turned back the clock, infesting your shop with

the kind of sweatshop conditions you and your

Unions fought so hard to exterminate.

The leaflet concluded by explaining that Local

254’s intention here at Women and Infants is to

stop the spread of the Intercity Plague and pro-

tect your workplace from sweatshop infection.

App. 35

We regret that the Hospital’s insensitivity to the

plight of Intercity workers forced us to involve

you in this dispute, but, as you well know,

sometimes dramatic measures are necessary to

gain attention.

A final leaflet, dated April 7, 1995, was distributed

after the hospital “notified Local 254 that Intercity Clean-

ing has no employees working here at Women and

Infants!” At that point, the union ended its picketing and

thanked the hospital’s administration for “exterminating

Intercity and its bloodsucking, plantation-minded boss,

Michael Bouthilette [sic].”

Bouthillette claims that soon before the picketing at

Women & Infants, several people called the Intercity

office and left messages for him, referring to him as a

“bug.” One of the callers is identified by Bouthillette as

Coleman. Bouthillette maintains that at about this same

time, his secretary received a call from Lima who told her

that the union was no longer interested in organizing the

company and that they now aimed only to force Intercity

out of business.

According to plaintiff, Local 254’s actions against the

cleaning company were not isolated incidents. Intercity

urges this Court to view defendants’ behavior in light of

other campaigns to organize workers orchestrated by the

union defendants. In 1993, Local 254 targeted workers of

Aid Maintenance, a janitorial services firm operating in

Rhode Island and southeastern Massachusetts. According

to Coleman, the union picketed Aid Maintenance at the

site of one of the company’s cleaning clients. Coleman

explained at his deposition that the picketing was

designed to protest the wages paid by Aid Maintenance,

App. 36

which the union believed were below the area standard.

Coleman also admitted that the union was intent on

driving the company out of the region if it could not be

organized. The undeveloped record is unclear, however,

whether the picketing constituted improper secondary

activity. Coleman denied that the union pressured the

client to encourage Aid Maintenance to negotiate with

Local 254. Eventually, the cleaning company lost its con-

tract with this client.

Local 254’s efforts to organize janitorial workers in

Rhode Island and Massachusetts were encouraged and

supported by the International. The International devel-

oped a nationwide organizing campaign called “Justice

for Janitors” aimed at unionizing independent contrac-

tors that supply janitorial services. Coleman testified at

his deposition that the International encouraged locals to

create community-wide coalitions, including civic and

religious groups, to spread the word about employers

who paid wages and set work conditions deemed unfair

by the coalition. The purpose of this publicity was to

pressure employers to adopt the union’s standards for

wages and benefits.

The International also subsidized Local 254’s orga-

nizing activities in southeastern Massachusetts. In 1993,

the International infused Local 254 with $10,000 each

month for eight months for organizing projects. This

financial support ended in February 1994. In exchange for

its material assistance, the International required that the

local provide it with summaries of its activities, accom-

plishments, and expenditures. One such three-page

report dated October 22, 1993 sketches in broad strokes

App. 37

the local’s campaign to organize janitorial services con-

tractors in Massachusetts and Rhode Island. While the

report lists picketing and leafleting as activities engaged

in and lists the employment sites targeted, few details

regarding the type, content, or intent of the activities are

provided.

The International also played an important role in

marking the jurisdictional boundaries of Local 254’s

activities. Although Local 254 is based in Boston and

concentrates its efforts on workers in Massachusetts, its

jurisdiction was expanded by the International during the

course of its campaign to organize janitorial workers in

the borderland region of northern Rhode Island and

southeastern Massachusetts. During its 1993 campaign to

organize Aid Maintenance, a Rhode Island-based com-

pany operating in Massachusetts, Local 254 received the

nonexclusive right from the International to organize

building services contractors in Rhode Island. This deci-

sion was issued by the president of the International,

pursuant to the SEIU’s Constitution and Bylaws, which

governs the relationship between the International and

local affiliates.1 A jurisdictional dispute ensued between

Local 254 and Local 134, an SEIU local based in Rhode

Island. The International dispatched a hearing officer to

resolve the conflict. The specifics of the dispute and its

eventual resolution are complicated and largely irrelevant

to this inquiry. What is relevant, however, is that in the

end, the International successfully refereed the tussle and

? Article XIII of the SEIU Constitution and Bylaws provides

that the International Executive Board is empowered to

“determine all questions of jurisdiction between Local Unions.”

App. 38

Local 254 was allowed some rights to operate within

Rhode Island.

Plaintiff has presented no other evidence of involve-

ment by officials of the International in the efforts of

Local 254 to organize Intercity, Aid Maintenance, or any

other janitorial services company in the southern New

England area. Certainly, there is no evidence of direct

participation by officials of the International in the acts

denounced by plaintiff. There is also no evidence in the

record revealing the extent of the International’s knowl-

edge of the methods used by Local 254 to organize Inter-

city or Aid Maintenance. This is not surprising given the

substantial autonomy that locals are granted under the

SEIU’s Constitution and Bylaws. This document gives

locals the power to elect officers, negotiate and execute

collective bargaining agreements, rule on membership

applications, maintain their own financial affairs, and

establish independent rules and regulations. According to

Joseph Buckley, Eastern Regional Director of the SEIU

and the International employee best acquainted with the

organization of SEIU locals in the northeast, Local 254

exercises all of these rights. He also declares in an affi-

davit that no employees of Local 254, including Coleman

and Lima, are authorized agents of the International.

Furthermore, Article XXI of the International’s Constitu-

tion and Bylaws expressly limits the liability of the Inter-

national for the acts of local unions.?

2 The International’s liability is limited by Article XXI of its

Constitution and Bylaws:

Except as is otherwise specifically provided in this

Constitution, no Local Union, or affiliated body, nor

App. 39

Plaintiff, concluding that the behavior of these labor

organizations rises to the level of actionable violations of

Intercity’s legal rights, responded by commencing the

instant lawsuit. The original pleading in this case was

filed in 1995. That complaint alleged several causes of

action grounded in federal labor law and state tort law.

Senior Judge Raymond J. Pettine of this Court presided

over this controversy until 1997, when the case was reas-

signed to this writer. In November 1997, this Court

granted plaintiff’s Motion to Amend by adding three

additional state law counts. The Amended Complaint sets

forth six causes of action, one based on federal labor law

and five based on state law. Plaintiff seeks to hold each

defendant liable on all counts.

Count I alleges that defendants tortiously interfered

with the contractual relationship between plaintiff and

Blue Cross. Count II alleges that defendants violated

§ 303(a) of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 187, by engaging in prohibited

secondary activity that harmed plaintiff. Count III alleges

that defendants tortiously interfered with the advan-

tageous business relationship between plaintiff and Blue

Cross. Count IV alleges that defendants defamed plaintiff

to Blue Cross. Count V alleges that defendants defamed

plaintiff to Women & Infants. Count VI alleges that

defendants violated the Rhode Island Privacy Act,

any officer, employee, organizer or representative of a

Local Union or affiliated body or of this International

Union shall be authorized to make contracts or incur

liabilities for or in the name of the International

Union unless authorized in writing [by the

International].

App. 40

R.I.Gen.Laws § 9-1-?8.1, by placing plaintiff’s business

operations in a false light through defendants’ actions at

a Women & Infants facility. The Amended Complaint

demands compensatory and punitive damages, as well as

interest and costs. Subject matter jurisdiction is premised

on the federal question doctrine and the supplemental

jurisdiction provision of 28 U.S.C. § 1367. Before the

Court now are the Motions for Summary Judgment on all

counts filed by all defendants.

DISCUSSION

I. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure sets

forth the standard for ruling on a motion for summary

judgment:

The judgment sought shall be rendered forth-

with if the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

matter of law.

Fed.R.Civ.P. 56(c). The critical inquiry is whether a genu-

ine issue of material fact exists. “Material facts are those

‘that might affect the outcome of the suit under the

governing law.’ ” Morrissey v. Boston Five Cents Sav. Bank,

54 F.3d 27, 31 (1st Cir.1995) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d

202 (1986)). “A dispute as to a material fact is genuine ‘if

the evidence is such that a reasonable jury could return a

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App. 41

verdict for the nonmoving party.’ ” Id. (quoting Anderson,

477 U.S. at 248, 106 S.Ct. 2505).

On a motion for summary judgment, the Court must

view all evidence and related reasonable inferences in the

light most favorable to the nonmoving party. See Spring-

field Terminal Ry. Co., 133 F.3d at 106. “[W]hen the facts

support plausible but conflicting inferences on a pivotal

issue in the case, the judge may not choose between those

inferences at the summary judgment stage.” Coyne v.

Taber Partners I, 53 F.3d 454, 460 (1st Cir.1995). Similarly,

“[s]ummary judgment is not appropriate merely because

the facts offered by the moving party seem more plaus-

ible, or because the opponent is unlikely to prevail at

_ trial.” Gannon v. Narragansett Elec. Co., 777 F.Supp. 167,

169 (D.R.1.1991).

Il. The Secondary Pressure Claim

A. The Law of Improper Secondary Pressure

The law recognizes that labor disputes often create

friction and unease among the warring parties. Given the

realities of these struggles, much of the consequent strife

is not actionable in a court of law. However, Congress has

delimited the bounds of fair play in such conflicts. The

universal marker of this limit is the “unfair labor prac-

tice.” Although both antagonists in a labor dispute are

restrained by the bit and bridle of the unfair labor prac-

tice rules, in this case the Court is concerned only with

the prohibitions applicable to labor organizations.

Through its landmark Labor Management Relations Act

App. 42

(“LMRA”), 29 U.S.C. §§ 141 et seq., Congress has pro-

scribed that labor organizations may not use certain orga-

nizing tactics deemed too costly to social and economic

peace to achieve even appropriate ends. See id. § 158(b)

(defining unfair labor practices by labor organizations).

Among the tactics prohibited by the federal labor

laws is the application of an unlawful secondary boycott.

The rule is found in § 8(b)(4)(ii)(B) of the LMRA:

It shall be an unfair labor practice for a labor

organization or its agents —

(4) ... (ii) to threaten, coerce, or restrain any

person engaged in commerce or in an industry

affecting commerce, where in either case an

object thereof is -

(B) forcing or requiring any person to cease...

doing business with any other per-

son... Provided, That nothing contained in this

clause (B) shall be construed to make unlawful,

where not otherwise unlawful, any primary

strike or primary picketing.

29 U.S.C. § 158(b)(4)(ii)(B). Underlying this prohibition is

the Congressional intent to balance the resources of the

partisans “by ‘preserving the right of labor organizations

to bring pressure to bear on offending employers in pri-

mary labor disputes and [by] shielding unoffending

employers and others from pressures in controversies not

their own.’ ” Local 20, Teamsters Union v. Morton, 377 U.S.

252, 259, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964) (quoting

NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S.

App. 43

675, 692, 71 S.Ct. 943, 95 L.Ed. 1284 (1951)). The real bite

of this provision is found at § 303 of the LMRA, which

provides that “[wJhoever shall be injured in his business

or property by reason of any violation” of the improper

secondary pressure ban “may sue therefor in any district

court of the United States.” 29 U.S.C. § 187(b). Damages

may be recovered if plaintiff is able to prove that they

occurred “by reason of” the improper secondary activity.

See Morton, 377 U.S. at 261, 84 S.Ct. 1253.

To understand the reach of this statutory rule, several

important distinctions must be recognized. The first is

between primary and secondary pressure, for a union

runs afoul of the law only when it engages in the latter.

Theoretically, the distinction is a simple one to draw.

Pressure is primary when its target is the employer with

whom the union has a labor dispute. Pressure is second-

ary when its target is some employer other than the one

engaged in a labor dispute with the union applying the

pressure. To make this distinction, courts inquire into the

“object” of a union’s activity. If “the object of the union’s

conduct, taken as a whole, is to bring indirect pressure on

the primary employer by involving neutral or secondary

employers in the dispute, the conduct is secondary and

prohibited.” Abreen Corp. v. Laborers’ Int'l Union, 709 F.2d

748, 754-55 (1st Cir.1983). A plaintiff need not prove that

the union’s sole or primary object is to employ secondary

pressure, only that one of its objects is the use of second-

ary pressure. See Pye v. Teamsters Local Union No. 122, 61

F.3d 1013, 1023 (1st Cir.1995); see also Abreen Corp., 709

F.2d at 755 (holding that plaintiff must show that the

secondary pressure is not “merely incidental[] to the

pressure imposed on the primary employer”). Intent,

an a RC ern

App. 44

therefore, is the first necessary element of a cause of

action under § 8(b)(4)(ii)(B). See Pye, 61 F.3d at 1021;

Pepsi-Cola Co. v. Rhode Island Carpenters Dist. Council, 962

F.Supp. 266, 273 (D.R.I.1997). Direct evidence of intent, a

rare commodity, is not required, for intent may “logically

be inferred from the nature of the conduct, evaluated in

light of the practical realities of a given situation.” Pye, 61

F.3d at 1022.

The distinction is muddied as the relationship

between employers becomes more complex. Often a criti-

cal determination in resolving a secondary pressure claim

involves the definition of secondary, or neutral,

employers. No bright line rule governs this issue. A court

must apply a totality of the circumstances test. See

National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 644,

87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). However, the United

States Court of Appeals for the First Circuit has

announced a useful test for making such determinations.

The key inquiry is “whether there is actual or active

common control sufficient to denote an appreciable inte-

gration of operations and management policies” between

the two employers. John B. Cruz Constr. Co. v. United Bhd.

of Carpenters, Local 33, 907 F.2d 1228, 1231 (1st Cir.1990).3

3 Another potential difficulty in making out a claim for

improper secondary activity occurs when the primary

employer’s work site is also occupied by secondary employers.

In these cases, union activity at the common situs may implicate

the secondary activity prohibition unless the union can

demonstrate that its conduct was purely primary. See Cranshaw

Constr. of New England, L.P. v. International Ass’n of Ironworkers,

Local No. 7, 891 F.Supp. 666, 672 (D.Mass.1995). Courts resort to

the four-factor Moore Dry Dock test, deemed a useful

App. 45

The second major distinction that must concern a

court faced with a secondary boycott claim is the one

between proper and improper secondary activity. It is

well-settled that not all secondary pressure exerted by a

labor organization is prohibited by law. “Unions may

make peaceful appeals for support from the management

of companies dealing with the primary employer.” Abreen

Corp., 709 F.2d at 757. The federal reports are replete with

explanations of the distinction between proper and

improper secondary pressure. See Edward J. DeBartolo

Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568, 577-79, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)

(holding that prohibited secondary pressure involves

coercion or threats); NLRB v. Servette, Inc., 377 U.S. 46,

93-54, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964) (same); Abreen

Corp., 709 F.2d at 757 (same); see also BE&K Constr. Co. v.

United Bhd. of Carpenters, 90 F.3d 1318, 1330 (8th Cir.1996)

(“Even if the purpose of the activity is to force an

employer to stop doing business with another, a union

may attempt peacefully to persuade, induce, or encour-

age it to cease the relationship.”). The defining charac-

teristic of improper secondary pressure is coercion. ” ‘[A]

union is free to approach an employer to persuade him to

“evidentiary tool” by the courts, to “aid in the line-drawing

necessary in such cases.” Abreen Corp., 709 F.2d at 755; see

Sailors’ Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547

(1950). In the case sub judice, plaintiff’s claims of improper

secondary activity do not arise from union conduct at acommon

situs, although some union picketing in this case did occur at a

Women & Infants facility where both plaintiff and neutral

employers worked.

App. 46

engage in a boycott, so long as it refrains from the speci-

fically prohibited means of coercion through inducement

of employees.’ ” Morton, 377 U.S. at 259, 84 S.Ct. 1253

(quoting Local 1976, United Bhd. of Carpenters v. NLRB, 357

U.S. 93, 99, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958)).

Coercion, therefore, is the second necessary element

of a secondary boycott cause of action under

§ 8(b)(4)(ii)(B) of the LMRA. See Pye, 61 F.3d at 1022;

Pepsi-Cola Co., 962 F.Supp. at 273. Courts have declined to

impart a rigid and technical meaning to this term. Coer-

cion, within this context, is a flexible concept, potentially

encompassing many types of conduct. See Pye, 61 F.3d at

1024 (discussing a range of conduct that meets the statu-

tory requirement). Mindful that the First Circuit advised

that the secondary boycott provision is “pragmatic in its

application,” Pye, 61 F.3d at 1024, this Court will allow

common sense to be the guide. Accordingly, there can be

no dispute that picketing, or threatening to picket, a

neutral employer to achieve a result in a labor dispute

with some other employer satisfies the coercion test. See

Pepsi-Cola Co., 962 F.Supp. at 275.

B. Statute of Limitations

Defendants pose as a bar to plaintiff's secondary

boycott count the six-month statute of limitations applied

to § 301 actions by the United States Supreme Court in

DelCostello v. International Brotherhood of Teamsters, 462

U.S. 151, 172, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). This

attempt to forestall Intercity’s federal cause of action is

unavailing. The argument for applying the six-month

limit has been rejected by the four circuit courts of

App. 47

appeals who have considered the question. See BE & K

Constr. Co. v. Will & Grundy Counties Bldg. Trades Council,

156 F.3d 756, 763 (7th Cir.1998); Prater v. United Mine

Workers, Dists. 20 & 23, 793 F.2d 1201, 1209-10 (11th

Cir.1986); Carruthers Ready-Mix, Inc. v. Cement Masons

Local Union No. 520, 779 F.2d 320, 327 (6th Cir.1985);

Monarch Long Beach Corp. v. Soft Drink Workers, Loce? 812,

762 F.2d 228, 231 (2d Cir.1985). This Court finds the

reasoning of those decisions persuasive. Therefore, the

applicable statute of limitations for plaintiff’s § 303 action

is “the most closely analogous state limitations period.”

BE & K Constr. Co., 156 F.3d at 763.

Plaintiff commenced this action on December 5, 1995,

less than one year after the occurrence of the key events

in this controversy. The most closely analogous state-law

statute of limitations is that applied to actions for tortious

interference with business relationships. A ten-year lim-

itations period is applicable to such causes of action. See

R.I.Gen.Laws § 9-1-13(a) (1997); McBurney v. Roszkowski,

687 A.2d 447, 449 (R.I.1997) (applying the ten-year limit

to an action for tortious interference with a business

relationship). Clearly, plaintiff’s action falls well within

the requirements of this rule. Therefore, this Court may

address the substance of plaintiff’s claim.

C. Liability of the Individuals

Plaintiff seeks to hold liable both Coleman and Lima

for damages it suffered from defendants’ alleged

improper secondary boycotting. This effort was doomed

from the start. The law on this question could not be

more clear. Civil liability for damages resulting from

App. 48

prohibited secondary pressure is premised upon 29

U.S.C. § 187. The grant of that right of action comes with

an explicit proviso. The right to sue for damages is “sub-

ject to the limitations and provisions of section 185 of this

title.” See 29 U.S.C. § 187(b). Turning to § 185, even a less

than diligent researcher discovers that “[a] money judg-

ment against a labor organization in a district court of the

United States shall be enforceable only against the orga-

nization as an entity and against its assets, and shall not

be enforceable against any individual member or his

assets.” See id. § 185(b). Many courts have explained that

on the basis of that quoted language, § 303 of the LMRA

does not support individual liability. See Prater, 793 F.2d

at 1207; Charles D. Bonanno Linen Serv., Inc. v. McCarthy,

708 F.2d 1, 8 (1st Cir.1983); Cranshaw Constr. of New Eng-

land, L.P., 891 F.Supp. at 673; R.M. Perlman Inc. v. New York

Coat, Suit, Dresses, Rainwear & Allied Workers’ Union Local

89-22-1, 789 F.Supp. 127, 133 (S.D.N.Y.1992); see also Com-

plete Auto Transit, Inc. v. Reis, 451 U.S. 401, 414, 101 S.Ct.

1836, 68 L.Ed.2d 248 (1981) (explaining that in § 185

Congress intended to shield individuals from liability in

LMRA § 301 and § 303 actions). Therefore, the Motions

for Summary Judgment of Coleman and Lima are granted

with respect to Count II of the Amended Complaint.

D. Liability of Local 254

Plaintiff has placed more than enough material facts

in dispute to defeat the motion of Local 254 on the

question of liability for improper secondary activity.

According to the St. Peter affidavit, Coleman threatened

to boycott Blue Cross unless it ceased doing business

with Intercity. There is no dispute that Coleman acted as

App. 49

Local 254’s agent in this matter; he was in charge of the

union’s organizing efforts. There is also no dispute that

Blue Cross was a secondary employer. Defendants have

not argued that Blue Cross is an alter ego of Intercity or

that Blue Cross effectively controlled the cleaning com-

pany.

Plaintiff has adduced sufficient evidence that Local

254 intended to involve Blue Cross in the Intercity labor

dispute by empleying prohibited organizing tactics. The

St. Peter affidavit is itself sufficient to satisfy this element

of the secondary boycott cause of action. When warned

by St. Peter that his threat of picketing Blue Cross consti-

tuted prohibited secondary activity, Coleman brazenly

responded that he didn’t care. But there is more evidence

from which this Court easily can infer an intent to exert

unlawful pressure. During his deposition, Bouthillette

explained that Lima, also an authorized agent of Local

254, told him during a recorded Phone conversation that

Local 254 would contact Blue Cross in order to sabotage

Intercity’s relationship if the cleaning company did not

accede to the union’s wishes. This testimony is bolstered

by the transcriptions of those calls. Bouthillette’s conver-

sation with Lima provides insight into Local 254’s reasons

for calling St. Peter and corroborates St. Peter’s state-

ment. See Abreen Corp., 709 F.2d at 756 (holding that a

union official’s comments may be used to infer the object

of union activity). The evidence presented by plaintiff is

not subtle; it reveals a transparent intention by Local 254

to pressure Blue Cross improperly.

The threat to St. Peter also satisfies the coercion

element of a secondary pressure cause of action. Cole-

man’s promise to picket Blue Cross epitomizes the classic

or

App. 50

description of coercion within the labor law context. See

NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S.

675, 687, 71 S.Ct. 943, 95 L.Ed. 1284 (1951) (describing the

classic forms of unlawful secondary activity). Plaintiff

alleges that Blue Cross was cowed by these threats of

labor disturbance and eventually choose [sic] to jettison

Intercity rather than endure further troubles from Local

254. Bouthillette has testified that Leite admitted as much

to him when he informed the Intercity president that the

cleaning contract would not be automatically renewed.

Whether there was a causal relationship between Inter-

city’s loss of the Blue Cross contract and the threats of

Local 254 is a matter reserved for the trier of fact. There-

fore, Local 254’s Motion for Summary Judgment with

respect to Count II of the Amended Complaint is denied.

E. Liability of the International

Plaintiff attempts to hoist liability up one more rung

of the union hierarchy. The International, according to the

Amended Complaint, must also answer for Intercity’s

damages resulting from Local 254’s alleged improper sec-

ondary activity. Plaintiff argues that the International

encouraged, ratified, and knowingly tolerated Local 254’s

prohibited behavior. However, the evidence adduced by

plaintiff fails to support this argument.

Liability for a local union’s actions does not attach to

an international affiliate merely because of the hierarchi-

cal link between the two unions. See Carbon Fuel Co. v.

United Mine Workers, 444 U.S. 212, 216-17, 100 S.Ct. 410,

62 L.Ed.2d 394 (1979). Rather, a plaintiff must satisfy the

traditional rules of agency law to saddle an international

App. 51 aa

union with responsibility for acts carried out directly by a

locai in violation of § 303 of the LMRA. See United Mine

Workers v. Gibbs, 383 U.S. 715, 736, 86 S.Ct. 1130, 16

L.Ed.2d 218 (1966) (holding that § 303 liability is estab-

lished according “to ordinary doctrines of agency”); see

also 29 U.S.C. § 185(e). The United States Court of

Appeals for the First Circuit explained that to hold an

international union liable for the improper secondary

activity of a local, a plaintiff must “show that the local

acted as the international’s agent or that the international

independently participated in the unlawful conduct.”

Borowiec v. Local No. 1570, 889 F.2d 23, 26 (1st Cir.1989); see

Abreen Corp., 709 F.2d at 757; see also Cranshaw Constr. of

New England, L.P., 891 F.Supp. at 673 (“To be liable under

§ 303, a union must have instigated, supported, ratified,

or encouraged the complained-of activity. . . . ”).

Plaintiff’s evidence fails completely to establish a

factual link between the specifically alleged acts of sec-

ondary activity and any officer or agent of the Interna-

tional. There is no evidence in the record that any officer

of the International actively participated in the threats

made to Blue Cross. The only direct evidence of conduct

prohibited by § 303 adduced by plaintiff is contained in

St. Peter’s description of Coleman’s telephone threat.

However, St. Peter makes no mention of the International.

Neither Coleman nor Lima, Local 254’s point men for the

Intercity campaign, even hint at participation by the

International. Plainly, Intercity cannot identify a genuine

dispute of material fact regarding actual participation by

the International.

Plaintiff fares no better by relying on theories of

agency law. No evidence in the record establishes an

App. 52

express agency relationship between the International

and Local 254 in organizing matters. In fact, the Interna-

tional’s Constitution and Bylaws explicitly limits the

International's liability to those acts expressly authorized

by the International’s governing body. Furthermore,

according to Buckley, the International’s regional official,

the scheme of decentralized power within the SEIU

grants Local 254 independent authority in matters involv-

ing organizing.

Apparent agency is another fruitless theory pro-

pounded by plaintiff. Turning to bedrock agency law,

“{ajpparent authority is the power to affect the legal

relations of another person by transactions with third

persons, professedly as agent for the other, arising from

and in accordance with the other’s manifestations to such

third persons.” Restatement (Second) of Agency § 8 (1958).

To create such authority “the principle . . . must manifest

to the third party . . . that he or she ‘consents to have the

act done on his [or her] behalf by the person purporting

to act for him [or her].’” Parrillo v. Chalk, 681 A.2d 916,

919 (R.1.1996) (quoting Restatement (Second) of Agency

§ 27). A third party may properly rely on an apparent

authority relationship if that party’s belief in the princi-

pal’s authorization of the agent was reasonable. See Paul

Revere Life Ins. Co. v. Fish, 910 F.Supp. 58, 64 (D.R.1.1996)

(applying Rhode Island law). Plaintiff has failed to iden-

tify any act taken by the International and known to

Intercity or Blue Cross that would lead a reasonable

person to believe that Lima, Coleman, or Local 254 acted

as the International’s agent with respect to organizing

App. 53

matters. Statements made by Lima or Coleman to Bou-

thillette identifying themselves as agents ot the Interna-

tional are insufficient to establish apparent authority. The

agency relationship is created by the manifestations of

the principal, not of the alleged agent. See Parrillo, 681

A.2d at 919.

Nevertheless, piaintiff argues that the International

did act in several ways that created an agency relation-

ship binding on the International. It is unclear from plain-

tiff’s argument whether it advocates that these actions

established an express or an apparent authority relation-

ship. That ambiguity is academic. None of the actions of

the International spotlighted by plaintiff has any legal

significance to the agency analysis.

First, plaintiff notes that the International subsidized

Local 254’s organizing campaign for janitorial workers to

the tune of $10,000 per month for several months. Left

unmentioned by plaintiff, however, is that the subsidy

program ended six months before Local 254 began its

efforts to unionize Intercity. Furthermore, there is no

evidence that any official of Intercity or Blue Cross was

aware of the subsidy before it was unearthed during the

discovery process. Consequently, there could have been

no reliance on the subsidy as a manifestation of an appar-

ent agency relationship.

The subsidy also is not evidence of an express agency

relationship. Although the International requested the

most basic of periodic reports on the use of the funds, the

evidence in the record is clear that the International never

controlled the tactics used by Local 254 or advised the

local on organizing strategy. Plaintiff has failed to adduce

App. 54

any evidence that the International even knew of Local

254’s tactics. An agency relationship may not be con-

structed on the basis of mere “normal union functions”

such as reporting general activities to an affiliate. Gibbs,

383 U.S. at 738, 86 S.Ct. 1130; see Federal Prescription Serv.,

Inc. v. Amalgamated Meat Cutters, 527 F.2d 269, 276-77 (8th

Cir.1975) (involving reporting between a local and an

international union). Therefore, the subsidy is irrelevant

to the question of agency in the Intercity organizing

campaign.

Likewise, the International’s resolution of a jurisdic-

tional dispute between Local 254 and Local 134 has no

bearing on this question. Plaintiff endeavors to show that

in granting Local 254 jurisdiction over Providence-area

cleaners, the International assumed the position of princi-

pal for all of the local’s actions. However, it is well

established in the field of labor law that the exercise of

supervisory powers by an international union in some

matters of jurisdiction and governance is insufficient to

establish a general agency relationship between the inter-

national and a local for all other matters. See Rodonich v.

House Wreckers Union Local 95, 817 F.2d 967, 974 (2d

Cir.1987). The Borowiec Court rejected an argument simi-

lar to the one advanced here by plaintiff. In that case, the

Court held that supervisory control by an international

union over some aspects of a local union’s governance

does not subject the international to liability for the

local’s organizing activity where the local was afforded

significant autonomy in many areas of its operations,

including organizing. See Borowiec, 889 F.2d at 28. In the

= te eee” ae ee

App. 55

case sub judice, Local 254 enjoys autonomy in the con-

duct of its organizing activities according to the undis-

puted testimony of Buckley. Plaintiff’s argument based on

the jurisdictional settlement must fail.

Next, plaintiff clings to a meaningless scrap of evi-

dence for support of a ratification theory. In June 1995,

Sullivan sent a letter to the International’s president

informing him that Intercity had been “expelled” from

Blue Cross. Plaintiff urges this Court to turn the law of

ratification on its head by concluding that a letter from

Local 254 to the International can have the effect of

associating the International to prior acts of Local 254

described in summary fashion in the letter. Clearly, the

letter can reasonably have no such effect. The Supreme

Court has counseled that “it would be inconsistent with

the fabric of national labor policy to infer ratification

from the mere fact that [the international union] involved

itself in the dispute after the violence had occurred.”

Gibbs, 383 U.S. at 738, 86 S.Ct. 1130. Here, plaintiff’s

evidence fails even to demonstrate that the International

“involved itself” after the fact. This Court will not resort

to such an attenuated inference based on the paltry evi-

dence of Sullivan’s letter.

Finally, plaintiff hopes to pin liability on the Interna-

tionai based on a theory of “knowing tolerance.” Accord-

ing to this argument, the International should have

known that Local 254 used improper secondary boycott

tactics when it attempted to organize Aid Maintenance.

Stretching an assumption into a precarious theory of lia-

bility, plaintiff maintains that having done nothing to

dissuade the local from using prohibited tactics after the

Aid Maintenance dispute, the International is responsible

App. 56

for Local 254’s use of those same improper means of

organizing Intercity. This reasoning suffers from several

flaws.

First, no evidence in the record supports the conten-

tion that officials of the International were aware of acts

of illegal secondary activity committed by agents of Local

254 in organizing Aid Maintenance. Plaintiff cannot rely

on a theory of “knowing tolerance” when it has produced

no evidence that officials of the International had knowl-

edge of improper activities committed by Local 254 at any

time. Second, no rule of law required the International to

condemn improper acts committed by a local union with

which it had no agency relationship for organizing mat-

ters. See Gibbs, 383 U.S. at 739, 86 S.Ct. 1130 (“There can

be no rigid requirement that a union affirmatively dis-

avow such unlawful acts as may previously have

occurred.”). For either of these reasons, plaintiff's final

argument for International liability fails. Therefore, the

Motion for Summary Judgment by the International on

Count II of the Amended Complaint is granted.

III. Supplemental Jurisdiction

With the secondary boycott claim against the Interna-

tional and the two individual defendants resolved, no

federal cause of action remains against these three defen-

dants. Because plaintiff has not alleged diversity of the

parties, this Court can only base subject matter jurisdic-

tion over plaintiff’s state law claims against these three

parties under the supplemental jurisdiction provision of

28 U.S.C. § 1367. That statute provides that

App. 57

in any civil action of which the district courts

have original jurisdiction, the district courts

shall have supplemental jurisdiction over all

other claims that are so related to claims in the

action within such original jurisdiction that they

form part of the same case or controversy under

Article III of the United States Constitution.

28 U.S.C. § 1367(a). Supplemental jurisdiction

extends to pendent parties as well as pendent claims. See

id. (“Such supplemental jurisdiction shall include claims

that involve the joinder or intervention of additional par-

ties.”). This Court has power to hear both state and

federal claims if they all would ordinarily be expected to

be tried in one judicial proceeding. See Penobscot Indian

Nation v. Key Bank of Maine, 112 F.3d 538, 563-64 (1st

Cir.1997); Coastal Fuels of Puerto Rico, Inc. v. Caribbean

Petroleum Corp., 79 F.3d 182, 190 (1st Cir.1996). In particu-

lar, “[t]he state and federal claims must derive from a

common nucleus of operative fact.” Gibbs, 383 U.S. at 725,

86 S.Ct. 1130; Rodriguez v. Doral Mortgage Corp., 57 F.3d

1168, 1175 (1st Cir.1995).

However, the exercise of supplemental jurisdiction is

discretionary. See Penobscot, 112 F.3d at 564; Roche v. John

Hancock Mut. Life Ins. Co., 81 F.3d 249, 256-57 (1st

Cir.1996). In determining whether to exercise this discre-

tion, the district court should “ ‘take into account con-

cerns of comity, judicial economy, convenience, fairness,

and the like.’ ” Penobscot, 112 F.3d at 564 (quoting Roche,

81 F3d at 257). The supplemental jurisdiction statute

itself provides four grounds for declining the exercise of

this jurisdiction:

App. 58

(1) the claim raises a novel or complex issue of

State law,

(2) the claim substantially predominates over

the claim or claims over which the district court

has original jurisdiction,

(3) the district court has dismissed aii claims

over which it has original jurisdiction, or

(4) in exceptional circumstances, there are

other compelling reasons for declining jurisdic-

tion.

28 U.S.C. § 1367(c).

This Court can identify no compelling reason to

decline supplemental jurisdiction over the state law

claims advanced by plaintiff. The causes of action

involved, tortious interference, defamation, and false

light, are of the rather ordinary variety. This Court has

considerable experience applying the well-worn rules of

Rhode Island law in these areas. Despite the presence of

these several state law claims, the federal claim of

improper secondary pressure still predominates in this

dispute. The state torts are ancillary to the central contro-

versy regarding the quality and kind of defendants’

unionization struggle with Intercity. Furthermore, given

this Court’s significant investment of time in deciding a

number of preliminary issues in this long-running litiga-

tion, the interests of judicial economy militate in favor of

the exercise of supplemental jurisdiction. Therefore, this

Court will now address the viability of these state law

actions.

App. 59

IV. The Tortious Interference Claims

Two of plaintiff’s state law claims invoke the law of

tortious interference with business relationships. In the

first of these, plaintiff contends that defendants tortiously

interfered with Intercity’s contract to provide janitorial

services to Blue Cross. The second claim is a gloss on the

first. Plaintiff argues that defendants tortiously interfered

with Intercity’s advantageous business relationship with

Blue Cross. The strongest argument raised by defendants

in rebuttal calls into doubt the sufficiency of plaintiff’s

evidence of causation. However, this Court need not test

the merits of this pair of claims because both are pre-

empted by federal labor law.

State law may not encroach upon the system of fed-

eral laws governing labor relations; local laws that

attempt to occupy the same or similar ground as the

national scheme are preempted. See Morton, 377 U.S. at

259-60, 84 S.Ct. 1253. Federal predominance in this area is

necessary to ensure that “the balance of power between

labor and management expressed in our national policy”

is not upset. Id. at 260, 84 S.Ct. 1253. Preemption is

necessary “[w]hen it is clear or may fairly be assumed

that the activities which a State purports to regulate are

protected by § 7 of the National Labor Relations Act, or

constitute an unfair labor practice under § 8.” San Diego

Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct.

773, 3 L.Ed.2d 775 (1959). Claims of tortious interference

with contractual relations,4 when based on conduct that is

* The two types of tortious interference alleged by plaintiff

are equivalent causes of action for the Purposes of preemption

analysis. Although Rhode Island law recognizes as independent

App. 60

regulated by the LMRA, are subject to the preemption

doctrine. See BE&K Constr. Co., 90 F.3d at 1330 (preempt-

ing state law tortious interference claim); Ehredt Under-

ground, Inc. v. Commonwealth Edison Co., 90 F.3d 238,

240-41 (7th Cir.1996) (same); Allied Int'l, Inc. v. Interna-

tional Longshoremen’s Ass'n, 640 F.2d 1368, 1381 (1st

Cir.1981) (preempting federal common law claim of tor-

tious interference).

Plaintiff readily acknowledges the authority of this

general rule. However, Intercity urges that its claim fits

within a well-established exception to the federal pre-

emption doctrine carved out by the United States

Supreme Court in its San Diego Building Trades Council

decision. According to the Court, states may “grant com-

pensation for the consequences, as defined by the tradi-

tional law of torts, of conduct marked by violence and

imminent threats to the public order” San Diego Bldg.

Trades Council, 359 U.S. at 247, 79 S.Ct. 773; see Lodge 76,

Int'l Ass'n of Machinists v. Wisconsin Employment Relations

Comm'n, 427 U.S. 132, 136, 96 S.Ct. 2548, 49 L.Ed.2d 396

(1976). Violence alters the federalism balance and trumps

the interests of preemption because of the “compelling

actions claims of tortious interference withcontract and tortious

interference with advantageous business relations, only one

element, irrelevant for preemption purposes, separates the two.

See Mesolella v. City of Providence, 508 A.2d 661, 669-70 (R.I.1986)

(explaining that a plaintiff need not prove the existence of a

contract when the claim is based on interference with a

prospective business relationship); Ed Peters Jewelry Co. v. C & J

Jewelry Co., 51 FSupp.2d 81, 101 (D.R.1.1999) (explaining that

“the legal requirements for establishing these two torts are

identical” except for the difference identified in Mesolella).

App. 61

State interest in the maintenance of domestic peace.”

Gibbs, 383 U.S. at 721, 86 S.Ct. 1130. Furthermore, state

regulation of such activity, outside of the bounds of con-

duct protected by the federal labor laws, does not com-

promise the national scheme of labor relations policy. See

San Diego Bldg. Trades Council, 359 US. at 247, 79 S.Ct.

773. Violent picketing is “[t]he paradigmatic example” of

conduct that may be actionable under State law. Palm

Beach Co. v. Journeymen’s & Prod. Allied Servs., 519 F.Supp.

705, 713 (S.D.N.Y.1981). However, courts have allowed

state law causes of action alleging other types of violent

activity to proceed as well, including claims based on

sabotage and vandalism. See Printpack, Inc. v. Graphic

Communications Union, Local 761-S, 988 F.Supp. 1201, 1204

(S.D.Ind.1997) (involving sabotage); Cranshaw Constr. of

New England, L.P., 891 F.Supp. at 675 (involving vandal-

ism).

This limited exception is inapplicable to plaintiff's

claim because the only threats of violence found within

the record were directed at Bouthillette and were entirely

unrelated to Blue Cross. Plaintiff does not allege that

defendants committed any acts of actual violence.

Instead, plaintiff directs the Court’s attention to com-

ments made by Lima, and by others alleged to be Lima’s

associates, to Bouthillette and to Bouthillette’s secretary.

For instance, one of plaintiff's phone call transcriptions

records Lima warning that he knows where Bouthillette

lives. Bouthillette also testified at his deposition that

Lima boasted about his access to “Latino terrorist organi-

zations” employed to enforce the union’s will. Based on

these and similar allegations, Bouthillette received a

App. 62

restraining order against Lima and others working on

Lima’s behalf.

The problem with plaintiff's argument is apparent.

None of the threats attributed to defendants are in any

way related to Intercity’s relationship with Blue Cross.

There is no evidence that any official of Blue Cross was

ever threatened with violence. Furthermore, there is no

evidence that Blue Cross officials were even aware of the

threats allegedly directed at Bouthillette. Plaintiff may

not escape the impact of the important federal policy of

preemption by alleging threats of violence that are totally

irrelevant to its state cause of action.

The Gibbs Court emphasized the limited nature of the

violence exception. In that case the Court agreed with the

petitioner that “the permissible scope of state remedies in

this area is strictly confined to the direct consequences of

such conduct, and does not include consequences result-

ing from associated peaceful picketing or other union

activity.” Gibbs, 383 U.S. at 729, 86 S.Ct. 1130. Restating its

holding from a previous decision, the Court continued by

stressing the centrality of causation to this preemption

exception. A state law cause of action may proceed only

when there exists “a proximate relation between the vio-

lence and threats of force and violence complained of, on

the one hand, and the [damages] allegedly suffered, on

the other.” Id. at 730, 86 S.Ct. 1130.

Although causation is typically a matter within the

jury’s realm, this Court recently recognized that “a court

may properly intervene” if plaintiff fails entirely to

adduce evidence supporting this vital element. See Ed

Peters Jewelry Co. v. C & J Jewelry Co., 51 F.Supp.2d 81, 101

App. 63

(D.R.1.1999) (citing Russo v. Baxter Healthcare Corp., 140

F.3d 6, 12 (1st Cir.1998)). No evidence within the record

would permit any finder of fact to conclude that the

threats alleged by plaintiff caused Blue Cross to end its

business relationship with Intercity. The only evidence of

violence adduced by plaintiff is irrelevant to these two

tort counts. Consequently, the two state causes of action

for tortious interference do not fit within the narrow

confines of the violence exception to the general preemp-

tion rule. Therefore, the preemption doctrine applies to

both counts. Defendants’ motions as to Counts I and III

are granted.

V. The Defamation Claims

A. Defamation Law in the Labor Context

Counts IV and V of the Amended Complaint allege

that defendants defamed Intercity through various com-

munications with Blue Cross and Women & Infants.

Plaintiff contends that statements made by defendants to

Blue Cross “implied that Intercity conducted its business

in an unlawful and unsanitary manner endangering Blue

Cross and its patrons and employees.” Amended Com-

plaint J 58. Similarly, the pleading argues that statements

made to patrons and employees of Women & Infants also

implied that Intercity “conducted its business in an

unlawful and unsanitary manner, spreading infectious

diseases endangering Women and Infants and its patrons

and employees.” Amended Complaint J 64. The offend-

ing statements, discussed in detail above, were contained

in two letters penned by Coleman and sent to a Blue

Cross official and three handbills created by Local 254

App. 64

and distributed to the public near a Women & Infants

facility.

To avoid defamation liability, defendants first seek

the shelter of the preemption doctrine. This effort is

futile. In Linn v. United Plant Guard Workers, 383 U.S. 53,

86 S.Ct. 657, 15 L.Ed.2d 582 (1966), the United States

Supreme Court held that a state law defamation action is

not preempted by the LMRA “provided it is limited to

redressing libel issued with knowledge of its falsity, or

with reckless disregard of whether it was true or false.”

Id. at 61, 86 S.Ct. 657. Federal preemption in such cases is

inappropriate because of the “overriding state interest in

protecting . . . residents from malicious libels.” Id. The

key to this particular species of preemption analysis is

malice. Causes of action based on state law are pre-

empted to the extent to which they seek to make action-

able defamatory statements that were made without

malice. See Old Dominion Branch No. 496, Nat'l Ass'n of

Letter Carriers v. Austin, 418 U.S. 264, 272-73, 94 S.Ct. 2770,

41 L.Ed.2d 745 (1974).

The malice rule imposed by Linn reflects the Supreme

Court's desire to preserve the special status of free speech

rights under federal labor law. See Old Dominion, 418 U.S.

at 272, 94 S.Ct. 2770. Concern for “unwarranted intrusion

upon free discussion envisioned by the” labor laws led

the Court to fashion limits on the reach of state defama-

tion actions. Linn, 383 U.S. at 65, 86 S.Ct. 657. The Linn

Court explained that “[l]abor disputes are ordinarily

heated affairs; the language that is commonplace there

might well be deemed actionable per se in some state

jurisdictions.” Id. at 58, 86 S.Ct. 657. In contrast to such

App. 65

state laws, federal labor law “tolerates intemperate, abu-

sive and inaccurate statements made by the union during

attempts to organize employees.” Id. at 61, 86 S.Ct. 657.

But the line is drawn at malicious defamation. Therefore,

to serve both the objectives of federal labor law and state

anti-defamation law, the Court imported into the labor

context the standards for defamation actions involving

public figures enunciated by the Court in New York Times

Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686

(1964).

The Sullivan standard requires that a plaintiff prove

that a publication was made “with knowledge that it was

false or with reckless disregard of whether it was false or

not.” Sullivan, 376 U.S. at 280, 84 S.Ct. 710; see Old Domin-

ion, 418 U.S. at 281, 94 S.Ct. 2770 (applying the Sullivan

test to a labor dispute). This is the definition of malice

applicable in the case sub judice. Whether defendants

harbor any ill will or spite toward plaintiff is irrelevant to

this analysis. See Old Dominion, 418 US. at 281, 94 S.Ct.

2770.

Given the special role of the federal government in

promoting national labor policy, the Supreme Court has

attempted to provide the lower courts with some guid-

ance in determining whether certain specific statements

are protected from state condemnation when made in the

heat of a labor dispute. Much of the hyperbolic language

typical of bitter struggles between zealous organizers and

defiant managers is protected by federal law. Language

that might ordinarily offend the civility of polite com-

pany is tolerated and absolutely protected by law within

the labor context. “[Flederal law gives a union license to

use intemperate, abusive, or insulting language without

App. 66

fear of restraint or penalty if it believes such rhetoric to

be an effective means to make its point.” Old Dominion,

418 U.S. at 283, 94 S.Ct. 2770. Even the “most repulsive

speech enjoys immunity” if its speaker passes the malice

test. Linn, 383 U.S. at 63, 86 S.Ct. 657. For example, the

Court has protected union defendants from liability for

using terms such as “scab,” even when the word was

defined in the publication as a person with “rotten princi-

ples” who lacks “character” and for whom “Angels weep

in Heaven, and the Devil shuts the gates of hell to keep

him out.” See Old Dominion, 418 U.S. at 268, 283-84, 94

S.Ct. 2770 (quoting union literature attributed to the

author Jack London).

The shield of federal immunity extends even beyond

instances of abusive language and name calling to “loose

language” and exaggerated use of slogans. Id. at 284, 94

S.Ct. 2770. For example, labeling a union opponent a

“traitor” or “fascist” is generally a protected act. See id.

Even though a defendant cannot prove that its target fits

the legal or common definitions of these words, the state-

ments are not actionable because they are properly

understood as expressions of opinion and not of fact. See

id. “[T]o use loose language or undefined slogans that are

part of the conventional give-and-take in our economic

and political controversies —- like ‘unfair’ or ‘fascist’ — is

not to falsify facts.” Cafeteria Employees Union Local 302 v.

Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 88 L.Ed. 58 (1943).

Many of the statements made by defendants that

form the basis of plaintiff’s grievance fall well within the

immunized category of “rhetorical hyperbole.” They are

simply “lusty and imaginative expression[s] of the con-

tempt felt by union members” towards a stubborn owner.

App. 67

Old Dominion, 418 U.S. at 286, 94 S.Ct. 2770. So protected

are the references in the handbills distributed at the

Women & Infants facility to “bloodsucking, plantation-

minded boss,” “notorious company,” “the Intercity

plague,” the Intercity “infestation,” and Intercity’s

“sweatshop conditions.” Also protected as a matter of

opinion is the statement in the March 20, 1995 letter to

Bouthillette and Leite that “a health emergency exists” at

both Blue Cross and Women & Infants based on Inter-

city’s lax procedures in handling hazardous materials.

This statement might refer to any number of conditions at

the work site and is not a matter that can be proved or

disproved by resort to objective data.

More problematic for defendants are specific state-

ments made in the first letter sent on March 20, 1995 and

in two of the handbills distributed at Women & Infants.

These remaining statements can be divided into two cate-

gories: one set relates to wages and benefits provided

Intercity employees and the other relates to the health

and safety conditions under which Intercity employees

work.

With regard to the statements in the first group, there

are some triable issues of fact that this Court is unable to

resolve at this stage of the litigation. Although the state-

ment that Intercity does not pay a “living wage” is a

protected matter of opinion, the statement that the com-

pany pays its employees “well below area standards” is

an assertion of fact that can be verified by objective data.

Bouthillette contends that Intercity paid its employees

above area standards. Coleman testified at his deposition

that the statement was based on his assumption that

Intercity employees working at Women & Infants were

App. 68

paid comparably to those working at Blue Cross. How-

ever, he admits that little, if any, investigation was con-

ducted prior to publishing the statements. The relevant

portions of Coleman’s deposition testimony follow:

Q.: At the time that you prepared and distrib-

uted this handbill, you did not have that infor-

mation as to what Intercity was paying its

janitorial workers assigned to Women and

Infants?

A.: That's correct. I hadn’t talked to the people

- there.

Q.: And so, you published and prepared this

document in disregard as to what the actual

facts were with respect to Intercity’s employees

A.: Well, I published -

Q.: - assigned to Women and Infants?

A.: Well, I published it in regards to whatever

information was available to me that I could put

in it.

Q.: But you didn’t have any information about

what the compensation and benefits were of

Women and Infants employees — of strike — at

the time you prepared Plaintiff’s 12, you just

told us that you didn’t have any information

about the terms and conditions of employment

of Intercity’s workers assigned to Women and

Infants?

App. 69

A.: Well, I made an assumption that they were

probably paid similarly as they were paid at

Blue Cross.

Q.: And that assumption was not based on

facts?

A.: It was an assumption. That’s correct.

A genuine dispute as to the truth of these statements

regarding wages exists. The evidence regarding holiday

pay, vacation time, health insurance, and job security

rights is similarly disputed. These conflicts in the record

over material facts cannot be resolved on the motions

before the Court. Furthermore, even if proved to be false,

the question of malice is too close a call for this Court to

make now given Coleman’s shaky testimony about his

efforts to investigate the facts.

In the second group of actionable statements are

allegations concerning the adequacy of Intercity’s safety

program. By declaring Intercity in violation of federal

and state laws, Local 254 left behind the realm of opinion

and assumed the position of a reporter of fact. Statements

intended to be factual representations of Intercity’s health

and safety record were contained in both the letters to

Leite and in one of the handbills. The first letter from

Coleman, copied to Leite, made the following factual

assertions regarding Intercity’s employment practices at

the Blue Cross site: 1) Intercity was in violation of both

federal and state laws by failing to provide safety man-

uals and approved training to its employees, 2) Intercity

was in violation of the Blood Born Pathogen Act by

App. 70

exposing its workers to hazardous human waste, 3) Inter-

city failed to provide its employees with appropriate

safety equipment and clothing. One of the handbills also

contains the factual representation that Intercity exposes

its workers at the Women & Infants site to “chemical and

biological hazards including HIV and Hepatitis B virus.”

In an affidavit, Bouthillette denies that Intercity was ever

in violation of federal or state law and asserts that the

company provided its employees with appropriate train-

ing and equipment. Therefore, there is a triable issue of

material fact with respect to the falsity of these state-

ments.

There is also some evidence that these statements

were made with malice. According to his deposition testi-

mony, before writing the letters to Leite, Coleman never

actually investigated the working conditions of Intercity

employees at the Women & Infants site. To the contrary,

he substituted assumption for actual observation. Cole-

man assumed that conditions at Women & Infants were

equivalent to those at Blue Cross. Compounding the

problem, Coleman’s testimony raises a serious question

regarding the extent of his investigation into working

conditions at Blue Cross, the very conditions that under-

lie his assumptions about the Women & Infants site. The

relevant portion of his deposition follows:

Q.: In Plaintiff’s Exhibit 12, you state Intercity

exposes its cleaners to chemical and biological

hazards, including HIV and Hepatitis B virus?

A.: Yes, I did.

Q.: Upon what information did you base that

statement?

_—

App. 71

A.: Based on the fact that he doesn’t provide

rubber gloves to his cleaners.

Q.: How do you know that at the time you

wrote this? :

A.: From my observations as to his practices at

Blue Cross.

Q.: But at the time you didn’t locate or secure

any of Intercity’s workers at Women and

Infants?

A.: That’s correct. Yes, it was an assumption.

Q.: And the assumption that you made was

not based upon facts?

A.: It is, yeah, you could say that.

Q.: And it was not made based upon an inves-

tigation?

A.: Well -

Q.: - of Intercity workers at Blue Cross?

A.: As best I could investigate.

Q.: And the investigation was never con-

cluded?

A.: No. I didn’t actually - wasn’t able to locate

the people.

Q.: And despite that, you made all of the state-

ments set forth -

A.: Yes.

Q.: - in Exhibit 12?

App. 72

A.: Yes.

Based on this evidence, plaintiff has demonstrated

that a genuine dispute of material fact exists regarding

Coleman’s malicious intent in making these statements.

B. Liability for the Defamation Claims

Liability for these alleged defamations does not

extend to all of the defendants named in plaintiff’s law-

suit. Clearly, Coleman is responsible for the statements in

his letter of March 20, 1995 alleging safety violations by

Intercity. Local 254 is liable as a principal for the state-

ments made by Sullivan and Coleman regarding Intercity

wages and benefits as well as safety violations. However,

there is no evidence in the record linking any of the

actionable statements to Lima. Therefore, of these three

defendants, only Lima is entitled to summary judgment

on Counts IV and V.

The liability of the International deserves a special, if

brief, discussion. The standard of proof for imposing

liability on an international union for the acts of a local

affiliate that may violate state law is more demanding

than the traditional rule of civil liability. Under § 6 of the

Norris-LaGuardia Act:

No officer or member of any association or

organization . . . participating or interested in a

labor dispute, shall be held responsible or liable

in any court of the United States for the unlaw-

ful acts of individual officers, members, or

agents, except upon clear proof of actual partici-

pation in, or actual authorization of, such acts,

App. 73

or of ratification of such acts after actual knowl-

edge thereof.

29 U.S.C. § 106. Although the normal rules of agency

law apply to determine the liability of a union for acts of

secondary boycotting by affiliate unions, the special stan-

dard of § 6 applies to state law actions such as the

defamation claims before the Court. See Gibbs, 383 U.S. at

736, 86 S.Ct. 1130 (explaining the application of the differ-

ent standards of liability for § 303 actions and state law

actions). The “clear proof” rule is a “higher” standard for

imposing liability than that provided by traditional

agency law. Johnson v. Teamsters Local 559, 102 F.3d 21, 27

(1st Cir.1996). The Gibbs Court explained that in order to

satisfy this heightened standard, a plaintiff “is required

to persuade by a substantial margin, to come forward

with ‘more than a bare preponderance of the evidence to

prevail.’” Gibbs, 383 U.S. at 737, 86 S.Ct. 1130 (quoting

Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct.

1333, 87 L.Ed. 1796 (1943)).

Given this exacting standard and this Court’s pre-

vious discussion of the lack of evidence associating the

International to any of the acts of Local 254, plaintiff

cannot maintain causes of action for defamation against

the International. To link the International to the state-

ments at issue, plaintiff relies on the same evidence that

this Court deemed inadequate to hold the International

liable under § 303. Plaintiff identifies no additional evi-

dence supporting liability of the International. Therefore,

even under traditional agency principles, plaintiff cannot

establish the liability of the International, to say nothing

of the problems facing plaintiff under the clear proof

App. 74

standard. The International’s Motion for Summary Judg-

ment as to Counts IV and V is granted.

VI. The False Light Claim

Plaintiff further seeks to hold defendants liable under

the Rhode Island Privacy Act, R.I.Gen.Laws § 9-1-28.1, for

publicly portraying Intercity in a false light. The Rhode

Island statute allows a false light action when “[t]here has

been some publication of a false or fictitious fact which

implies an association which does not exist” and when

“{t]he association which has been published or implied

would be objectionable to the ordinary reasonable man

under the circumstances.” R.I].Gen.Laws § 9-1-28.1(a)(4)(i).

The Rhode Island legislature borrowed the Privacy

Act’s scheme of four privacy torts, including the tort of

false light, from the doctrine of privacy torts promulgated

by the Restatement (Second) of Torts. See Liu v. Striuli, 36

F.Supp.2d 452, 479 (D.R.I.1999); Restatement (Second) of

Torts §§ 652B-E (establishing the four privacy torts).

Accordingly, Rhode Island courts have often turned to

the Restatement as an authority on the matter of privacy

torts. See Swerdlick v. Koch, 721 A.2d 849, 861-62 (R.I.1998);

Pontbriand v. Sundlun, 699 A.2d 856, 863 (R.1.1997). The

Restatement defines the scope of the right to privacy:

“Except for the appropriation of one’s name or likeness,

an action for invasion of privacy can be maintained only

by a living individual whose privacy is invaded.” Restate-

ment (Second) of Torts § 6521. Under this rule of tort law, a

corporation does not enjoy privacy rights. See id. cmt. c.

“It has therefore no cause of action for any of the four

forms of invasion covered by §§ 652B to 652E.” Id.; see id.

App. 75

§ 652E (false light tort). Given the respect with which the

Rhode Island state courts accord the Restatement on mat-

ters of privacy law otherwise unresolved by state law,

this Court has no qualms in concluding that the Rhode

Island courts would adopt the Restatement’s rule on cor-

porate privacy. Therefore, Count VI of the Amended

Complaint fails as a matter of law.

VI. Punitive Damages

Finally, this Court will address defendants’ argument

that plaintiff may not recover punitive damages in this

lawsuit. The only causes of action remaining are those for

improper secondary activity under 29 U.S.C. § 187 and

for defamation under Rhode Island common law. Plaintiff

may not recover punitive damages on its claim of unlaw-

ful secondary activity. See International Bhd. of Elec.

Workers v. Foust, 442 U.S. 42, 52, 99 S.Ct. 2121, 60 L.Ed.2d

698 (1979); Morton, 377 U.S. at 260-61, 84 S.Ct. 1253;

Amoco Oil Co. v. Local 99, Int'l Bhd. of Elec. Workers, 536

FSupp. 1203, 1224 (D.R.I.1982). As the LMRA makes

clear, plaintiff’s recovery for unlawful secondary pressure

is limited to compensatory damages. See 29 U.S.C.

§ 187(b) (“Whoever shall be injured in his business or

property . . . shall recover the damages by him sus-

tained. . . . ”); Morton, 377 U.S. at 260, 84 S.Ct. 1253

(holding that recovery is limited “to actual, compensatory

damages”). Accordingly, defendants’ Motions for Sum-

mary Judgement with respect to the punitive damages

claims contained in Count II of the Amended Complaint

are granted.

App. 76

However, punitive damages are available for the def-

amation claims. As this Court discussed above, federal

labor law does not preempt this state law cause of action.

Under Rhode Island law, punitive damages may be recov-

ered in defamation suits. See Johnson v. Johnson, 654 A.2d

1212, 1217 (R.1.1995). Such exemplary damages must be

based on a finding of malice or bad faith. See Palmisano v.

Toth, 624 A.2d 314, 318 (R.1.1993). This Court had occasion

recently to address the standard for an award of punitive

damages under Rhode Island law in Ross-Simons of War-

wick, Inc. v. Baccarat, Inc., 182 F.R.D. 386, 400 (D.R.1.1998).

In that decision, this Court explained that “[t]he Rhode

Island Supreme Court has discussed with approval this

Court’s formulation of the test: the plaintiff must allege

that the defendant intended to cause harm.” Id.

Given the evidence currently in the record, this Court

can only conclude that a dispute of material fact exists

regarding the “willfullness, recklessness or wickedness”

of the defendants in making the offending statements.

Sherman v. McDermott, 114 R.I. 107, 329 A.2d 195, 196

(1974). There is some evidence that Local 254, Lima, and

Coleman wished to drive Intercity out of business. If the

offending statements were made to damage plaintiff for

the sake of causing it harm, then plaintiff may recover

exemplary damages. Such a determination, necessarily

entangled in questions of credibility and motivation, is

not an appropriate matter for summary judgment dispo-

sition given the varying accounts of the circumstances

surrounding this dispute. Defendants’ Motions for Sum-

mary Judgment with respect to the requests for punitive

damages within Counts IV and V of the Amended Com-

plaint are denied.

-

App. 77

CONCLUSION

For the foregoing reasons, defendants’ Motions for

Summary Judgment are granted in part and denied in

part. The Motions of all defendants are granted with

respect to Counts I, III, and VI of the Amended Com-

piaint. On Count II of the Amended Complaint, the

Motions of the International, Lima, and Coleman are

granted and the Motion of Local 254 is denied. On Counts

IV and V of the Amended Complaint, the Motions of the

International and Lima are granted and the Motions of

Local 254 and Coleman are denied. Finally, plaintiff's

claim for punitive damages contained in Count II of the

Amended Complaint is dismissed. No judgments shall

enter until all claims are resolved.

It is so ordered.

App. 78

29 U.S.C. § 158

§ 158. Unfair labor practices

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer -

(1) to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in section 157 of

this title;

(2) to dominate or interfere with the formation or

administration of any labor organization or contribute

financial or other support to it: Provided, That subject to

rules and regulations made and published by the Board

pursuant to section 156 of this title, an employer shall not

be prohibited from permitting employees to confer with

him during working hours without loss of time or pay;

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment to

encourage or discourage membership in any labor orga-

nization: Provided, That nothing in this subchapter, or in

any other statute of the United States, shall preclude an

employer from making an agreement with a labor organi-

zation (not established, maintained, or assisted by any

action defined in this subsection as an unfair labor prac-

tice) to require as a condition of employment membership

therein on or after the thirtieth day following the begin-

ning of such employment or the effective date of such

agreement, whichever is the later, (i) if such labor organi-

zation is the representative of the employees as provided

in section 159(a) of this title, in the appropriate collective-

bargaining unit covered by such agreement when made,

and (ii) unless following an election held as provided in

App. 79

section 159(e) of this title within one year preceding the

effective date of such agreement, the Board shall have

certified that at least a majority of the employees eligible

to vote in such election have voted to rescind the author-

ity of such labor organization to make such an agreement:

Provided further, That no employer shall justify any dis-

crimination against an employee for nonmembership in a

labor organization (A) if he has reasonable grounds for

believing that such membership was not available to the

employee on the same terms and conditions generally

applicable to other members, or (B) if he has reasonable

grounds for believing that membership was denied or

terminated for reasons other than the failure of the

employee to tender the periodic dues and the initiation

fees uniformly required as a condition of acquiring or

retaining membership;

(4) to discharge or otherwise discriminate against

an employee because he has filed charges or given testi-

mony under this subchapter;

(5) to refuse to bargain collectively with the repre-

sentatives of his employees, subject to the provisions of ©

section 159(a) of this title.

(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organi-

zation or its agents -

(1) to restrain or coerce (A) employees in the exer-

cise of the rights guaranteed in section 157 of this title:

Provided, That this paragraph shall not impair the right

of a labor organization to prescribe its own rules with

respect to the acquisition or retention of membership

App. 80

therein; or (B) an employer in the selection of his repre-

sentatives for the purposes of collective bargaining or the

adjustment of grievances;

(2) to cause or attempt to cause an employer to

discriminate against an employee in violation of subsec-

tion (a)(3) of this section or to discriminate against an

employee with respect to whom membership in such

organization has been denied or terminated on some

ground other than his failure to tender the periodic dues

and the initiation fees uniformly required as a condition

of acquiring or retaining membership;

(3) to refuse to bargain collectively with an

employer, provided it is the representative of his

employees subject to the provisions of section 159(a) of

this title;

(4)(i) to engage in, or to induce or encourage any

individual employed by any person engaged in com-

merce or in an industry affecting commerce to engage in,

a strike or a refusal in the course of his employment to

use, manufacture, process, transport, or otherwise handle

or work on any goods, articles, materials, or commodities

or to perform any services; or (ii) to threaten, coerce, or

restrain any person engaged in commerce or in an indus-

try affecting commerce, where in either case an object

thereof is -

(A) forcing or requiring any employer or self-

employed person to join any labor or employer organiza-

tion or to enter into any agreement which is prohibited by

subsection (e) of this section;

App. 81

(B) forcing or requiring any person to cease using,

selling, handling, transporting, or otherwise dealing in

the products of any other producer, processor, or manu-

facturer, or to cease doing business with any other per-

son, or forcing or requiring any other employer to

recognize or bargain with a labor organization as the

representative of his employees unless such labor organi-

zation has been certified as the representative of such

employees under the provisions of section 159 of this

title: Provided, That nothing contained in this clause (B)

shall be construed to make unlawful, where not other-

wise unlawful, any primary strike or primary picketing;

(C) forcing or requiring any employer to recognize

or bargain with a particular labor organization as the

representative of his employees if another labor organiza-

tion has been certified as the representative of such

employees under the provisions of section 159 of this

title;

(D) forcing or requiring any employer to assign par-

ticular work to empl

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Petition for Writ of Certiorari — Intercity Maintenance Co. v. Local 254 · 534 U.S. 818 | Frix