Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 82-1424

Citation453 N.E.2d 666,6 Ohio St.3d 369,6 OBR 421
Decision Date31 August 1983
Docket NumberNo. 82-1424,82-1424
CourtUnited States State Supreme Court of Ohio
Parties, 116 Lab.Cas. P 56,408, 6 O.B.R. 421 YEAGER, Appellant, v. LOCAL UNION 20, TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, et al., Appellees.

Syllabus by the Court

One who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (Bartow v. Smith, 149 Ohio St. 301, 78 N.E.2d 735 , overruled.)

Plaintiff-appellant, David M. Yeager, was employed as a vice-president and general manager of Browning-Ferris Industries ("BFI") in Toledo, Ohio. His responsibilities included oversight and supervision of BFI employees and operations. Throughout the period relevant to this action, defendant-appellee, Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of America, was the exclusive collective bargaining representative for certain BFI employees. Toledo Area PROD ("TAP"), also a defendant-appellee, is the Toledo area chapter of a national organization of dissident Teamsters known as PROD. The national organization of PROD is also a defendant-appellee herein. The individual defendants-appellees named in plaintiff's amended complaint are officers, agents, members and/or representatives of Local Union 20, TAP and/or PROD.

Plaintiff alleges that on March 31, 1978, a group from Local 20 entered his office, threatening him with injury, threatening to shut BFI down; made menacing remarks concerning plaintiff and his family; and threatened to "get" plaintiff. As a result, plaintiff alleges that this incident caused him great anxiety for his welfare and that of his family, and led to deleterious physical consequences (i.e., severe stomach pain and discomfort caused by an ulcer or aggravation of a pre-existing ulcerous condition, necessitating a week long hospital stay in May 1978, with medical expenses of nearly $5,000).

Plaintiff also alleges that on June 5, 1979, a picketing and handbilling incident took place outside the confines of the BFI plant. The picket signs and handbills described plaintiff as being a "Little Hitler"; accused him of operating "a Nazi concentration camp" at BFI; alleged that plaintiff did not support the Constitution of the United States; used "Gestapo" tactics; and cheated his employees.

On October 26, 1979, plaintiff brought this action against the above-named defendants in the Court of Common Pleas of Lucas County. Plaintiff filed an amended complaint on April 4, 1980 seeking compensatory and punitive damages from the defendants under separate counts for defamation, tortious interference with his employment relationship, invasion of privacy under a "false light" theory of recovery, and intentional infliction of mental and emotional distress.

Following the filing of answers and the completion of extensive discovery, defendants filed motions for summary judgment pursuant to Civ.R. 56. The trial court granted the defendants' motions on December 21, 1981.

Upon appeal, the court of appeals affirmed, with one judge dissenting in part. The majority held that defendants were entitled to summary judgment because plaintiff had failed to establish that there was a genuine issue of material fact, especially since plaintiff relied primarily upon his own affidavit. In addition, the court held that even if summary judgment was improperly granted in favor of TAP and the individual defendants, PROD and Local Union 20 were entitled to summary judgment because the undisputed evidence made it clear that they played no role whatsoever in the events of June 5, 1979. It was also held that the picketing incident was not actionable by plaintiff because it took place in the context of a "labor dispute," and that therefore, any defamation alleged is protected, so long as it was done without "actual malice." Linn v. United Plant Guard Workers (1966), 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582. It was also held that Ohio does not recognize the tort of intentional infliction of emotional distress absent a contemporaneous physical injury, or unless it was the result of an assault pursuant to Bartow v. Smith (1948), 149 Ohio St. 301, 78 N.E.2d 735. .

The cause is now before this court upon the allowance of a motion to certify the record.

Murray & Murray Co., L.P.A., Dennis E. Murray and Kirk J. Delli Bovi, Sandusky, for appellant.

Gallon, Kalniz & Iorio Co., L.P.A., Jack Gallon and Tobie Braverman, Toledo, for appellees Local Union 20 et al.

Lydy, Moan & Douglas and Thomas G. Douglas, Toledo, for appellees Toledo Area PROD et al.

Michael J. Goldberg and Jack Kilroy, Cleveland, for appellee PROD.

SWEENEY, Justice.

The first issue before this court is whether summary judgment was properly granted upon the trial court's determination that the defendants-appellees' actions were conducted within the context of a labor dispute.

Appellant contends that the trial court erred in characterizing the picketing incident as a labor dispute because neither TAP nor PROD had any labor agreement with BFI. Continuing, appellant argues that the picketing incident was a result of personal animosity against him and not over working conditions. Furthermore, appellant submits that if either the March 1978 or the June 1979 incident was not part of a labor dispute, his cause of action for defamation is not subject to the "actual malice" standard enunciated in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.

The term "labor dispute" is defined in Section 152(9), Title 29, U.S. Code, as follows:

"The term 'labor dispute' includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." (Emphasis added.)

The question of whether certain conduct constitutes a labor dispute is necessarily a question of law which a court must answer on the basis of the whole record. Hanbrouck v. Sheet Metal Workers Local 232 (C.A.9, 1978), 586 F.2d 691, 694. Therefore, we believe that the court of appeals was correct in affirming the trial court because this is an issue for the court, not the jury, to decide and the record in the instant case convinces us that the activity alleged does constitute a labor dispute as defined by federal law. Moreover, such concerted activity as took place outside BFI's plant, does not have to be undertaken exclusively by a labor union in order to be protected under the federal labor laws. The National Labor Relations Board and courts have recognized that concerted activity undertaken by or on behalf of PROD is protected activity. See, e.g., Roadway Express, Inc. (1978), 239 NLRB 653.

Once it has been determined that concerted activity constitutes a labor dispute, the United States Supreme Court has held that an action for defamation within this context must be adjudicated under the New York Times Co. v. Sullivan "actual malice" standard. Linn, supra. In this regard, the plaintiff must prove that the defendants did not merely fail to investigate the truth of their publication, but that they actually entertained serious doubts about its truth before publishing it. St. Amant v. Thompson (1968), 390 U.S. 727, 731, 88 S.Ct. 1323, 1325-1326, 20 L.Ed.2d 262.

In addition to his other arguments, appellant submits that the lower courts erred in finding that the statements published on the handbills were not actionable, and that the court of appeals erred in applying an "innocent construction rule" on the alleged defamatory statements.

With respect to these contentions, we find that this court has stated that it is for the court to decide as a matter of law whether certain statements alleged to be defamatory are actionable or not. Bigelow v. Brumley (1941), 138 Ohio St. 574, 590, 37 N.E.2d 584 .

In relation to this, the court of appeals below followed the reasoning of several federal diversity opinions in Ohio which adopted the "innocent construction rule." According to this rule, if allegedly defamatory words are susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should be rejected, and the innocent meaning adopted. See, e.g., England v. Automatic Canteen Co. (C.A.6, 1965), 349 F.2d 989. In this regard, we note that various courts have had occasion to examine language similar to that allegedly used by appellees in the instant action, and have found that such language is protected as a matter of law when used in a labor dispute or in a case involving a public figure. Thus, words such as "gestapo-like," "Gestapo tactics," and "fascist" have been found to be protected. See Cafeteria Employees Union Local 302 v. Angelos (1943), 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58; Buckley v. Littell (C.A.2, 1976), 539 F.2d 882, certiorari denied (1977), 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777; and Schy v. Hearst Publishing Co. (C.A.7, 1953), 205 F.2d 750. It is our view that even if we were to assume that the incidents in the case sub judice did not constitute a labor dispute, the language used is capable of different meanings; is mere hyperbole or rhetoric, and is an expression of opinion, not fact; and is protected. As was stated by the court of appeals below, " * * * [i]t is unreasonable to assume that any person reading the handbill or the signs would really believe that the [appellant] was literally a member of the Nazi Party, the Gestapo, the SS or was like Hitler in condoning or practicing genocide or other atrocities." Therefore, we affirm the court of appeals with respect to appellant's defamation cause of action.

In his next argument, appellant contends that the picketing and handbilling incident invaded his privacy by...

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