Wolf Street Supermarkets, Inc. v. McPartland

• Decision Date: 05 April 1985
• Docket Number: AFL-CIO
• Citation: 487 N.Y.S.2d 442,108 A.D.2d 25
• Parties: , 117 Lab.Cas. P 56,522 WOLF STREET SUPERMARKETS, INC., d/b/a Jim's Big M, Respondent, v. Francis McPARTLAND, Dennis Danella, Samuel Piganelli, Judy Brewster Allen, Joseph Cyr, Jr., Susan Ranger, and United Food and Commercial WorkersDistrict Local Union 1, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 442

487 N.Y.S.2d 442

108 A.D.2d 25, 117 Lab.Cas. P 56,522

WOLF STREET SUPERMARKETS, INC., d/b/a Jim's Big M, Respondent, v. Francis McPARTLAND, Dennis Danella, Samuel Piganelli, Judy

Brewster Allen, Joseph Cyr, Jr., Susan Ranger, and

United Food and Commercial Workers

AFL-CIO District Local Union

1, Appellants.

Supreme Court, Appellate Division,

Fourth Department.

April 5, 1985.

Belson, Connolly & Belson, New York City, for appellants (Gene M.J. Szuflita, New York City, of counsel).

Hancock & Estabrook, Syracuse, for respondent (David Peebles, Syracuse, of counsel).

Before DILLON, P.J., and DOERR, DENMAN, BOOMER and SCHNEPP, JJ.

SCHNEPP, Justice.

This action arises from the conduct of the defendants in picketing a supermarket owned and operated by plaintiff and in distributing handbills for the avowed purpose of inducing potential customers to boycott the store. Defendants appeal from a judgment entered upon a special verdict awarding plaintiff a total of $62,000 compensatory damages and $50,000 punitive damages on its cause of action for tortious interference with business relations, and $125,000 compensatory damages, $100,000 of which was attributable to lost profits, and $50,000 punitive damages on its cause of action for libel.

Prior to plaintiff's acquisition of the supermarket, which is described as located in a "heavily unionized" neighborhood, the store had been owned and operated for 11 years by Anthony Pento, as Pento's Big M, an independently owned and operated franchise of P & C Food Markets through its subsidiary, Big M Supermarkets. Pento employed some of the individual defendants and had a collective bargaining agreement with the defendant Union. In December 1980 he went out of business and transferred the store assets to P & C. Thereafter plaintiff obtained the franchise and reopened the market on January 11, 1981 as Jim's Big M.

Plaintiff hired approximately 25 employees but for various reasons made a policy decision not to hire any of Pento's former employees. A union representative contacted plaintiff to persuade him to recognize the Union as the representative of his new employees and to hire Pento's former employees but plaintiff did not accede to either request. When it became apparent that plaintiff did not intend to hire any of the former Pento employees, defendants reached the decision to picket plaintiff's store beginning with the morning of its advertised grand opening. Picketing in fact commenced on January 11, 1981. Each of the individual defendants admitted participating in the picketing and all were paid by the Union. At some point after the picketing commenced plaintiff filed an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging unlawful recognitional picketing. Thereafter, on February 13, the picketing ceased. ¹ However, on February 17, 1981 defendants reappeared outside the store and passed out handbills which were admittedly composed and printed by the Union at its offices. In the first handbill which was distributed it was charged that "Pento's Big M was forced out of business by the Big M Company. All our jobs were taken away when Big M reopened the store with all non-union labor" and contained the admonition "Boycott Jim's Big M. Help us get back to work." A later handbill charged that "We have been thrown out of work because Jim's Big M discriminates against union members * * * Jim's Big M has violated the federal laws by discriminating against us on account of our union membership. Don't patronize a labor law violator. Don't encourage unfair labor practices. Don't shop at Jim's Big M. Help us get our jobs back. Boycott Jim's Big M." The handbills were handed out until March 14, 1981 to anyone trying to enter or exit the store. Handbills were also attached to cars entering the parking lot and copies were disseminated at a nearby manufacturing plant.

In its complaint plaintiff alleged four causes of action including intentional interference with business relations, malicious prosecution, defamation and intentional destruction of property. ² At trial defendants moved for a directed verdict on the first cause of action on the grounds that the conduct proved by plaintiff was constitutionally protected and that plaintiff's claim was limited to recovery of damages proximately caused by violence or threats of violence which, despite a showing that some minor acts of violence occurred, plaintiff had failed to prove. The trial court denied the motions on its view "that there is an independent cause of action not preempted if tort laws of this state are violated" and submitted to the jury a special verdict sheet which called for the jury to determine whether each of the defendants "intentionally and improperly attempted to interfere with plaintiff's relation with its actual and prospective customers."

Defendants argue that picketing to induce potential customers to boycott plaintiff does not subject them to liability for tortious interference with business which may only be imposed where the picketing is accompanied by violence or intimidation, and then only if the violence or threat of violence is the "dominant force" overshadowing the peaceful picketing. They contend that the measure for determining liability is not whether the conduct was "improper" but whether the conduct involved "wrongful means" such as violence or threats. In short, they argue that picketing and other conduct to promote a boycott is protected under the First Amendment so long as the picketing was peaceful.

Unquestionably, peaceful picketing on public property enjoys a measure of constitutional protection under the First Amendment. The right to picket, however, is subject to greater regulation than pure speech. It would appear that defendants here were engaged in recognitional picketing to coerce plaintiff into bargaining with the Union or at least into hiring union members formerly employed by Pento's Big M. Congress has declared that recognitional picketing is, in many situations, unlawful and constitutes an unfair labor practice which may be enjoined. For a time in the 1940's such picketing was thought to be assimilated with protected speech, but the Supreme Court has held that recognitional picketing contains elements of economic coercion beyond pure speech and is subject to regulation designed to shelter inside employees from coercion in the choice of a bargaining representative (Building Service Employees Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045; see generally R. Gorman, Basic Text on Labor Law Unionization and Collective Bargaining [1976], pp 220-222). The Supreme Court recently restated the principle that even peaceful picketing by labor unions may be restricted to protect employees and others "from coerced participation in industrial strife" despite the incidental regulation of the Union's freedom of expression (NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215).

However, we need not decide whether the defendants here have constitutional immunity from liability for tortious interference with business relations arising out of peaceful picketing, since plaintiff claims damages for recognitional picketing and State tort law in this area is largely preempted by Federal labor law. Plaintiff insists that the defendants were engaged in unlawful recognitional picketing in violation of section 8(b)(7)(C) of the National Labor Relations Act (29 U.S.C. § 158[b][7][C] ) which prohibits recognitional picketing as an unfair labor practice unless a petition is filed by the Union to obtain certification within a reasonable period of time not to exceed 30 days from the commencement of picketing. Although the record is not clear as to the disposition of the unfair labor practice charges plaintiff filed with the NLRB, the Board clearly has jurisdiction over recognitional picketing by nonemployees (see generally R. Gorman, Basic Text on Labor Law Unionization and Collective Bargaining [1976], pp 222-239).

The Supreme Court has frequently provided guidance in deciding preemption cases in the context of the Federal labor laws. The primary test was enunciated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, which like the instant case involved recognitional picketing by a stranger union. "[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, due regard for the federal enactment requires that state jurisdiction must yield" (id., at p. 244, 79 S.Ct. at p. 779). The purposes of preemption are to avoid conflicting regulation over substantive law and to protect the exclusive and primary jurisdiction of the NLRB (see Local 926, Int. Union of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368; Street, Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473; Campbell v. McLean Trucking Co., 592 F.Supp. 1560, 1562-3).

Defendants' conduct was arguably protected or prohibited under the NLRA so we begin with the presumption that State tort law is preempted and the matter is one within the exclusive jurisdiction of the NLRB. However, preemption is only presumed and in an appropriate case the State courts may be revested with jurisdiction. Garmon and its progeny establish that the presumption may be overcome and the States are not required to yield jurisdiction when the conduct touches concerns deeply rooted in local feelings or responsibilities, or the proposed State regulation of that conduct would implicate the concerns underlying the Federal labor laws only peripherally (see, e.g., Local 926, Int. Union of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368, supra ).

"The paradigmatic example of a case wherein the challenged conduct touches...