Barss v. Tosches

• Decision Date: 05 March 1986
• Docket Number: No. 85-1359,85-1359
• Citation: 785 F.2d 20
• Parties: 121 L.R.R.M. (BNA) 2952, 104 Lab.Cas. P 11,839 Howard W. BARSS and H.W. Barss Co., Inc., Plaintiffs, Appellants, v. Carl TOSCHES, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 20

785 F.2d 20

121 L.R.R.M. (BNA) 2952, 104 Lab.Cas. P 11,839

Howard W. BARSS and H.W. Barss Co., Inc., Plaintiffs, Appellants, v. Carl TOSCHES, et al., Defendants, Appellees.

No. 85-1359.

United States Court of Appeals, First Circuit.

Argued Nov. 15, 1985.

Decided March 5, 1986.

John D. O'Reilly, III, Framingham, Mass., for plaintiffs, appellants.

Robert M. Schwartz, with whom Feinberg & Feld, P.C., Boston, Mass., was on brief for defendants, appellees.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

This action, arising from a labor dispute, is before us on an appeal from a summary judgment by the United States District Court for the District of Massachusetts. ¹ The court found that picketing of the corporate office of the H.W. Barss Co., Inc. to protest the employment of non-union subcontractor and payment of substandard wages did not constitute a secondary boycott. It additionally found that the statements on the pickets did not libel plaintiff/appellant Howard W. Barss, the company's president.

The facts which gave rise to the charges of defamation and damages due to the violation of Section 8(b)(4)(B) and (D) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(4)(B) and (D), are as follows:

Howard W. Barss Co., Inc., is a construction firm doing business in the Framingham, Massachusetts area. The company operates as an open shop, hiring non-union laborers at wages and benefits considerably lower than those called for in collective bargaining agreements in the greater Framingham area.

In January 1983, the Barss company was contracted as the general contractor for a construction project worth approximately $2.6 million dollars. Defendant/appellee Carpenters Union Local 475, which has union jurisdiction in the Framingham area, heard about the project and sent representatives to request that Barss use only union subcontractors on the job. The company disregarded the union's request. It engaged a number of non-union subcontractors and assigned its own non-union employees to the project as well. In April 1983, after construction began and the union learned that its demand had not been met, it began picketing various subcontractors at the construction site. In May, after learning Barss' own employees were working on the project at substandard wages, the union began picketing Barss' corporate headquarters which is located on a major thoroughfare in Southboro, several miles from the construction project. The picket line was established with signs stating: "HOWARD BARSS IS an officer of H.W. Barss Co., Inc. H.W. Barss Co., Inc. is A SCAB contractor. Carpenters Local Union # 475." As a result of the union's arrangement of words on the posters, using all capital letters for some words and small print for others, the obviously dominant message was: HOWARD BARSS IS A SCAB.

Barss contends that the emphasized portions of the picket signs were defamatory in that they held him up to "contempt, hatred, scorn and ridicule." He further argues that the statement was false and resulted in damage to his personal and business reputation. In a detailed analysis of the statement, the district court found that as an accurate statement of fact regarding the plaintiff general contractor in the context of a labor dispute, the statement did not constitute the essential falsehood needed to establish liability under Linn v. Plant Guard Workers, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). To recover under Linn, the plaintiff involved in a labor dispute must prove that the defamatory statements were published with knowledge of their falsity or with reckless disregard for whether they were true or false. Linn, supra. The district court, citing Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), went on to say that it would engage in an independent examination of the whole record to determine whether the speech at issue was a false statement of fact before it could be challenged as a reckless and knowing falsehood. Finding that Barss and his company were indeed a non-union contractor that hired workers at substandard rates of pay, the court concluded that the statement, albeit unpleasant, was literally correct. We agree.

A common definition of "scab" is a person who works for lower wages than or under conditions contrary to those prescribed by a trade union. Black's Law Dictionary 1206 (5th Ed.1979) see also Webster's Third New International Dictionary 2022 (1981). In his deposition Barss admitted that his company had employees who were paid well below the union rate and who did not receive health insurance or pension benefits. He admitted that picket signs basically complained that Barss was not paying the union standard wage rates in the area. While he felt that a scab was a lowlife scoundrel, he did admit familiarity with the term in its classic labor dispute applications.

In the second count of his complaint, Barss claims that the picketing occurring at his corporate office was not permissible "area standards" informational picketing directed at a primary employer, as the union contends, but rather, an illegal secondary boycott. Barss argues the true objective was to force his company to cease doing business with the non-union subcontractors.

The critical distinction between acceptable primary activity and the illegal secondary activity depends heavily on the object of the union's picketing. See Abreen Corp. v. Laborers Int'l Union, 709 F.2d 748, 754 (1st Cir.1983). The district court, in...