H. W. Barss Co., Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1989

296 N.L.R.B. 1286 (N.L.R.B. 1989)

1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. W. Barss Co., Inc. and United Brotherhood of
Carpenters and Joiners of America , Local No.
475, AFL-CIO. Case 1-CA-21248
October 11, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On April 27 , 1987, Administrative Law Judge
George F . Mclnerny issued the attached decision.
The General Counsel and United Brotherhood of
Carpenters and Joiners of America , Local No. 475,
AFL-CIO (the Union) filed exceptions and sup-
porting briefs . The Respondent filed a brief in sup-
port of the judge 's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The facts in this case are not in dispute . The Re-
spondent operates as a nonunion general contractor
and admittedly pays wages and benefits less than
those called for in the Union 's collective-bargaining
agreement in the geographic area.
In April 1983, the Respondent began a project
for Integrated Genetics Company using nonunion
employees and subcontractors . The Union request-
ed that Barss hire union employees and subcontrac-
tors and , when Barss refused to do so, the Union
picketed the jobsite . The pickets were subsequently
withdrawn , but on May 23 , 1983, they appeared at
Barss ' office on Boston Post Road carrying signs
that read:
HOWARD BARSS
IS
an officer of H. W . Barss Co., Inc.
H. W. Barss Co., Inc. is
A
SCAB
Contractor
Carpenters Local Union #4751
The capitalized words were lettered in black and
were in a larger size than those in lower case that
were colored red. The black letters stood out, so
that from a distance the signs appeared to read
"HOWARD BARSS IS A SCAB."
' In restating the legend found on the picket signs, the judge inadvert-
ently omitted the second sentence of the legend containing the words,
"H. W. Barss Co., Inc. is."
The pickets, who generally numbered two or
three at a time , walked back and forth in front of
Barss ' offices along the busy thoroughfare, carry-
ing these signs, from May 1983 to August 1984.
Barss stated he felt that because of the way the
signs were printed he was being personally at-
tacked and was concerned about the damage this
might do to his reputation and community stand-
ing. On July 1, 1983, he filed a civil suit in the
Massachusetts Superior Court alleging defamation
of character and malicious publication of false
statements . The complaint named the Union and
nine individuals as defendants and prayed for a
"judgement to issue against each and every defend-
ant in the amount of [$500,000]."
On August 5, 1983, the Union filed a charge al-
leging that the Respondent violated Section 8(a)(1)
of the Act by filing the suit in order to coerce the
Union and employees into refraining from engaging
in lawful picketing.
On March 14, 1984, the Respondent added a
second count to the state lawsuit alleging violations
of Section 8(b)(4)(B) and (D) and Section 303 of
the Act. Because the complaint was now alleging a
violation of Federal law, the case was removed to
the United States District Court for the District of
Massachusetts . The district court granted the
Union's Motion for Summary Judgment and dis-
missed the Respondent's action .2 On the Respond-
ent's appeal, the Court of Appeals for the First Cir-
cuit affirmed the district court' s judgment on
March 5, 1986. On June 19, 1986, the General
Counsel issued a complaint alleging a violation of
Section 8(a)(1) and seeking , inter alia, an award of
legal fees expended by the Union in defense of the
libel suit.
The judge found no violation of the Act. First,
he discounted the General Counsel 's and the
Union's arguments that the case was filed in retalia-
tion for the picketing . He stated that the damage
prayer was ambiguous with respect to the amount
owed by each individual and therefore he could
not find that each named defendant was being sued
for an excessive amount. He also found that
naming individual employees as defendants was a
preferable practice in a state suit for malicious def-
amation of character. Finally, he found the Re-
2 The court found . ( 1) that use of the word "scab" on the picket signs
was insufficient to support an action for libel under state law , (2) that
under controlling principles of law it must examine the entire statement
carried on the picket signs and not just the truncated form suggested by
Bares, and (3) that the characterization of the Respondent as a "scab con-
tractor" was "a true statement under the circumstances." As to the al-
leged violations of Sec 8(b)(4)(B ) and (D), the court found the facts un-
disputedly established that the Union had engaged in lawful area stand-
ards picketing directed at the Respondent as a primary employer and that
such conduct was not actionable under Federal labor laws
296 NLRB No. 151
H. W. BARSS CO. 1287
spondent' s failure to seek an injunction and the
March 1984 amendment of the complaint to be tac-
tical maneuvers and, like the above, not indicative
of any retaliatory intent.
The judge then determined that under the United
States Supreme Court ruling in Bill Johnson's Res-
taurants v. NLRB, 461 U.S. 731 (1983), the Re-
spondent's libel suit was not "baseless ."5 He rea-
soned that even though the suit was dismissed sum-
marily, Barss had an "arguable point" that he had
been personally injured. Noting that both the dis-
trict court and the court of appeals made no com-
ments as to frivolousness or baselessness , the judge
concluded that the suit was not baseless . He there-
fore found that the filing of the lawsuit did not vio-
late Section 8(a)(1) of the Act.
We do not agree with the judge's finding. As
noted, the Respondent's civil suit against the Union
and several of its members for defamation was
summarily dismissed by a United States District
Court for the District of Massachusetts, and the
dismissal was affirmed by the United States Court
of Appeals for the First Circuit. Recently, in Phoe-
nix Newspapers, 294 NLRB 47 (1989), the Board, in
circumstances similar to those present here, found
that the summary dismissal of an employer's libel
suit against a union and its officers rendered the
employer's suit baseless under the Bill Johnson's
test . The Board there stated that the "summary
judgment in favor of the union defendants, which
was not disturbed by the parties' subsequent . . .
settlement [agreement], constituted an adjudication
establishing that the suit involving the union de-
fendants lacked a reasonable basis in law or fact."
(Supra at 49 .) Quoting from the Supreme Court's
Bill Johnson's decision , the Board in Phoenix noted
(supra at 49) that:
although the Board is not bound in a res judi-
cata sense by such a state-court ruling, we see
no reason why the state court's own judgment
on the question whether the lawsuit presents
triable factual issues should not be entitled to
deference. In any event , such a state-court de-
cision shoud not be disregarded without a
cogent explanation for doing so.
In concluding that the libel suit was baseless, the
Board in Phoenix noted that the Respondent had
presented no cogent explanation why the state
court's determination on the existence of triable
issues should not be given deference. As in the
Phoenix case , the Respondent here has likewise not
s The court in Bill Johnson 's held that before the Board can find that
the filing of a civil suit violates Sec 8 (a)(1), it must first be shown that
the suit lacks a reasonable basis in law or fact and that it was filed for a
retaliatory reason
shown why the court's summary dismissal of its
defamation suit should not be given deference by
the Board . For this reason we find, as we did in
Phoenix, that the summary dismissal of the Re-
spondent 's defamation suit rendered the suit base-
less under Bill Johnson's.4
Further, although we agree with the judge that
there is no direct evidence of unlawful intent, we
are nevertheless persuaded that the lawsuit filed by
the Respondent against the Union and some of its
members was motivated by the Union's picketing
the Respondent 's jobsite. The Union' s picketing
was in protest of substandard wages and was there-
fore primary picketing protected by Secton 7 of
the Act.5 The Respondent has offered no reason
for filing the suit other than its claim that the
wording on the picket signs, when viewed from a
distance, defamed the character of its president,
H. W. Barss. As indicated, the courts found no
merit to the Respondent 's claim .6 It is therefore
clear that the Respondent 's suit was aimed direclty
at protected concerted activity.
That the suit was filed with a retaliatory motive
can be inferred , in part, from its prayer for mone-
tary damages . The Respondent conceded in its dep-
osition , which is part of the record in this proceed-
ing and was taken several months after the picket-
ing began , that it could not indicate any specific
customers or potential customers whose business
had been lost as a result of the picketing. The Re-
spondent stated that when it filed the suit, it was
aware that no business losses had been suffered, but
took the position that the embarrassment, as
claimed in the suit, was a compensable item. In
sum, the Respondent claimed that it should receive
4 Chairman Stephens agrees, for the reasons stated above , that the suit
lacked a reasonable basis in fact and law , and under his separate opinion
concurring and dissenting in Bill Johnson 's Restaurants, 290 NLRB 29
(1988), he reaches the same conclusion on the merits as well . Thus, the
Respondent here concedes that H. W Barss Company , Inc is a nonunion
contractor The use of the epithet "scab" in connection with those who
oppose or refuse to join a union is common parlance in labor disputes and
has been held to be entitled to protection under Sec . 7 of the Act Linn v.
Plant Guard Workers Local 114 , 383 U.S. 53, 60-61 (1966) Accordingly,
when the Union and its members carried signs stating that H. W. Barss
Company , inc was a scab contractor, they were not acting maliciously,
i.e, with knowledge of the falsity of their statements or with reckless dis-
regard of the truth. Hence , under the standard of Linn Y. Plant Guard
Workers, supra at 61 -65, which states the applicable Federal standard for
libel lawsuits filed against unions and their officers in matters pertaining
to labor disputes , the Respondent 's lawsuit clearly lacked merit . See also
Letter Carriers Y. Austin , 418 U S 264 , 272-273 ( 1974).
5 See Houston Building Trades Council (Everett Construction), 136
NLRB 321 (1962). See also Polly Drummond Thriftway, 292 NLRB 331
(1989)
6 In Bill Johnson's Restaurants v NLRB, supra at 747 , the Court stated
that where the employer 's suit proves to be unmeritorious , "the Board
would be warranted in taking that fact into account in determining
whether the suit had been filed in retaliation for the exercise of the em-
ployees' [Sec.] 7 rights " See also Phoenix Newspapers, supra, slip op. at 8
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at least $500 ,0007 for its president having been
called a "scab." In these circumstances , and par-
ticularly in light of the judgments rendered by the
Federal courts that the picket sign must be read in
its entirety and that the characterization of Barss as
a "scab" contractor was "a true statement under
the circumstances," we conclude that the Respond-
ent filed its suit in retaliation for the Union 's pick-
eting as well as to discourage its members from
further engaging in such protected concerted activ-
ity. For these reasons , we find that the defamation
suit filed by the Respondent against the Union and
several of its members violated Section 8(a)(1) of
the Act, as alleged.
ORDER
The National Labor Relations Board orders that
the Respondent , H. W. Barss Co., Inc ., Southbor-
ough , Massachusetts, it officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Filing or maintaining a civil lawsuit against
United Brotherhood of Carpenters and Joiners of
America, Local No. 475, AFL-CIO and its indi-
vidual members or employees, for engaging in pro-
tected concerted activities.
(b) In any like or related manner interfering
with , restraining , or coercing Local 475 or its indi-
vidual members or employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Reimburse the Charging Party , United Broth-
erhood of Carpenters and Joiners of America,
Local No. 475, AFL-CIO for all legal expenses in-
curred in defense of the lawsuit styled Howard W.
Barss & H. W. Barss Co., Inc. v. Carl Tosches, et al.,
C.A. No. 83-3710, in the Superior Court of the
Commonwealth of Massachusetts ; C.A. No. 84-
81569-MA, in the United States District Court for
the District of Massachusetts ; and No . 85-1359, in
the United States Court of Appeals for the First
Circuit.
(b) Post at its offices located at 21 Boston Road,
Southborough, Massachusetts, copies of the at-
tached notice marked "Appendix."8 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 1 , after being signed by the Re-
spondent's authorized representative, shall be
° As noted earlier, the judge found that the prayer was ambiguous and
either sought a total $500,000 from the defendants collectively, or
$500,000 from each of the defendants for a total of $5 million
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER CRACRAFT, dissenting.
My colleagues conclude that the Respondent's
filing of a meritless lawsuit against the Union based
on assertions of defamation of character and libel
necessarily founded on reading the picket signs out
of context is sufficient evidence of retaliatory
motive on which to base a violation of Section
8(a)(1). I disagree and would affirm the judge's dis-
missal of the complaint because I do not find suffi-
cient evidence of retaliatory motive.
In Bill Johnson 's Restaurants v. NLRB, 461 U.S.
731 (1983), the Supreme Court rejected the Board's
reasoning in a line of cases holding that the pros-
ecution of a lawsuit was enjoinable as an unfair
labor practice if the suit was for a retaliatory
motive. Stressing the first amendment right to peti-
tion the Government for redress of grievances and
the States ' compelling interest in the maintenance
of domestic peace, the Court determined that
"[t]he filing and prosecution of a well-founded law-
suit may not be enjoined as an unfair labor prac-
tice, even if it would not have been commenced
but for the plaintiff's desire to retaliate against the
defendant for exercising rights protected by the
Act." Id. at 744. Thus the Court observed that if
the employee's suit ultimately proves meritorious,
the employer should prevail before the Board be-
cause the filing of a meritorious suit , even for a re-
taliatory motive, is not an unfair labor practice.
The Court then held that the Board could enjoin
the filing of a lawsuit as an unfair labor practice if
the suit is without a reasonable basis in fact or law
and is brought for a retaliatory purpose . The Court
commented that if the judgment went against the
employer , the Board could proceed to adjudicate
the unfair labor practice case and would be war-
ranted in taking into account the suit 's lack of
merit in determining whether it was filed for a re-
taliatory purpose. Id. at 741.
Although the Supreme Court noted in Bill John-
son's that a meritorious lawsuit should result in the
dismissal of an unfair labor practice complaint
before the Board, it did not suggest that an unmeri-
torious lawsuit should result in the finding of an
unfair labor practice . It merely stated that the
H. W BARSS CO. 1289
Board could take into account the unmeritorious
lawsuit when determining retaliatory motive. The
clear implication of the Court's statement is that
baselessness of a lawsuit is relevant to, but not suf-
ficient for , a finding that the filing of the suit is an
unfair labor practice.
The Respondent's suit was admittedly meritless
and was admittedly based on reading only the por-
tion of the picket sign printed in black and omitting
the words printed in red. However , there is no fur-
ther evidence that the lawsuit was filed with an
intent to restrain or coerce employees in the exer-
cise of any right they might have to display the
picket signs . The Respondent did not seek an in-
junction against the picketing or take any other
action against the Union . Furthermore , there is no
evidence of a history of conflict between these par-
ties nor were there any contemporaneous violations
of the Act. The baselessness of the defamation suit
is, accordingly , the only factor on which to find a
violation and I would not find it sufficient to estab-
lish a violation under the Supreme Court's two-
prong test . See my dissenting position in Phoenix
Newspapers, 294 NLRB 47, 50 fn. 21 (1989).
For these reasons, I dissent from my colleagues'
conclusion and would affirm the judge 's dismissal
of the complaint.I
I Although my colleagues concede that there is no direct evidence of
retaliatory motive, they infer such motive , in part , from the amount of
monetary damages claimed for the embarrassment of being called a
"scab." In some circumstances such claims may constitute evidence of re-
taliatory motive However, under all the circumstances herein , I refuse to
draw such an inference from this standard civil suit prayer.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
suit styled as Howard W. Barss & H. W. Barss Co.,
Inc. v. Carl Tosches, et al., C.A. No. 83-3710, in the
Superior Court of the Commonwealth of Massa-
chusetts ; C.A. No. 84-81569-MA, in the United
States District Court for the District of Massachu-
setts ; and No . 85-1359 , in the United States Court
of Appeals for the First Circuit.
H. W. BARSS CO., INC.
Carol Sax, Esq., for the General Counsel.
John D. O'Reilly III, Esq. (O'Reilly & Grasso), of Fra-
mingham , Massachusetts, for the Respondent.
Robert M. Schwartz, Esq. (Feinberg & Feld, P.C.), of
Boston , Massachusetts , for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCCINERNY, Administrative Law Judge.
Based on a charge filed on 5 August 1983 by United
Brotherhood of Carpenters and Joiners of America,
Local No. 475 (the Union or the Charging Party), the
Acting Regional Director for Region 1 of the National
Labor Relations Board (the Board) issued a complaint on
19 June 1986, alleging that H. W. Barss Co., Inc. (the
Company or Barss) had violated the provisions of the
National Labor Relations Act, 29 U.S.C. § 151 et seq.
(the Act). The Company, through its counsel , filed a
timely answer denying the commission of any unfair
labor practices . Pursuant to notice contained in the com-
plaint, a hearing was held before me on 6 and 24 No-
vember 1986, at which all parties were represented by
counsel and had the opportunity to present testimony
and documentary evidence , to examine and cross-exam-
ine witnesses, to file motions and make objections, and to
argue orally. After the close of the hearing the General
Counsel and the Respondent filed briefs, which have
been carefully considered.
Based on the entire record, including my observations
of the witnesses and their demeanor , I make the follow-
ing
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT file or maintain a civil lawsuit
against United Brotherhood of Carpenters and
Joiners of America, Local No. 475, AFL-CIO
and/or its individual members or employees, for
engaging in protected concerted activities.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reimburse United Brotherhood of Car-
penters and Joiners of America, Local No . 475, for
any legal expenses incurred in defense of our law-
FINDINGS OF FACT
I. JURISDICTION
The Respondent here is a corporation located in
Southborough , Massachusetts , from whence it engages in
the building construction business at locations ranging
from Montreal to Baltimore . The complaint alleges, the
answer admits , and I find that the Respondent is an em-
ployer engaged in commerce within the meaning cf Sec-
tion 2(2), (6), and (7) of the Act.
H. THE UNION
The Union is a labor organization within the meaning
of Section 2(5) of Act.
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts in this case are not in question . H. W. Barss
Company, Inc., is engaged in the building construction
business in the northeastern United States and in eastern
Canada . The Barss Company has been incorporated for
only about 5 years, but its president , H. W. Barss Jr., has
been a contractor for 23 years . The Company operates as
a nonunion general contractor , hiring nonunion subcon-
tractors , or employing nonunion tradesmen on its own
force account.
In April 1983 the Company, undertook a project to
build a new building for a firm known as Integrated Ge-
netics in Framingham , Massachusetts , a few miles from
Barss' own headquarters in Southborough , Massachu-
setts . In performing this contract Barss employed non-
union employees as its own force on the job , and also en-
gaged nonunion subcontractors.
While on this job Barss became involved in a dispute
with the Charging Party in this case , Local 475 of the
Carpenters Union . The Union requested that Barss hire
union employees and union subcontractors and, on his
refusal , set up a picket line at the Integrated Genetics
job.
After some skirmishing at the Board 's Regional Office,
these pickets were withdrawn , but on 23 May 1983, pick-
ets appeared at Barss' office on Boston Road in South-
borough , about 2 miles from the Framingham jobsite,
carrying signs which bore the following legend:
HOWARD BARSS
IS
an officer of H. W . Barss Co., Inc.
A
SCAB
contractor
Carpenters Local Union 475
The capitalized words were lettered in black, and
were in a larger size than those words in lower case,
which were colored red. On the original signs, one of
which was entered into evidence here, the black letters
stood out so the sign appeared to read , from a distance
"HOWARD BARSS IS A SCAB ." The pickets, who
generally numbered two or three at a time , walked back
and forth in front of Barss' offices next to a busy thor-
oughfare , carrying these signs, from May 1983 to August
1984.
Howard Barss himself looked at the signs and felt that
the emphasis given the words "HOWARD BARSS IS A
SCAB" was directed at him personally as well as profes-
sionally . He testified in this proceeding that the message
on the picket signs, directed at people who did not know
"what this is all about" could damage his reputation in
the contracting business. Barss also testified that he
thought the message on the signs could reflect on his
standing in the community . He called his lawyer, O'Reil-
ly, and on 1 July 1983, filed a suit in the Massachusetts
Superior Court for defamation of character and mali-
cious publication of false statements about Barss at the
Barss Company . Damages in the amount of $500,000
were claimed from the Union , its business representative,
Martin Ploof, and eight other named individuals. Seven
of these named persons were members of the Union who
had been engaged in the picketing at the Company's of-
fices, their identities disclosed through their automobile
license tags . The eighth individual was a person not
known to anyone who testified in this case and must
have been named in the suit because one of the pickets
was using his car, or the car just happened to be parked
at or near Barss ' place of business.
On 14 March 1984, Barss added a second count to its
lawsuit , alleging violations of Section 8(b)(4)(B ) and (D)
and Section 303 of the Act, whereupon the matter was
removed to the United States District Court for the Dis-
trict of Massachusetts , and assigned to District Judge A.
David Mazzone.
Upon a Motion for Summary Judgment filed on 23
January 1985, Judge Mazzone issued a Memorandum and
Order on 11 April 1985, granting the Motion for Summa-
ry Judgment and dismissing the Company 's action. The
matter was then appealed to the United States Court of
Appeals for the First Circuit, which affirmed the judg-
ment of the district court on 5 March 1986.
The charge in this case , filed on 5 August 1983, was
apparently retained in an inactive status in the discretion
of the Board 's Regional Office until after the decision of
the court of appeals . Bill Johnson 's Restaurants v. NLRB,
461 U.S . 731 (1983).'
In this case , the General Counsel seeks a finding that
the Company violated Section 8(a)(1) by interfering
with , restraining, and coercing members of Local 475
who were engaged in protected concerted activity by
picketing at the Company's Southborough premises. Sev-
eral of the pickets who were defendants in the Compa-
ny's libel suit testified that they were afraid of losing
their homes and all they possessed if the Company pre-
vailed in that suit. They were particularly upset by the
wording in the ad damnum of the lawsuit , which seemed
to them to mean that each individual was being sued for
the whole amount of $500,000.
In addition , the General Counsel seeks, as part of the
remedy here, an award of legal fees expended by the
Union on behalf of itself and the individual defendant
members of the Union in the defense of the libel suit in
the state and Federal courts.
These findings and remedies would be appropriate
under the Supreme Court 's ruling in Bill Johnson's Res-
taurants, supra, if the lawsuit filed by the Company was
"baseless" and filed in retaliation against lawful concert-
ed activities.
There is no direct evidence here of a retaliatory intent.
H. W. Barss himself denied that he had any such interest
in filing the suit . However, the General Counsel points
to several factors which would show , in her view, that
the intent was present.
The first argument which is addressed by the General
Counsel to the issue of retaliatory intent is that the ad
damnum in the lawsuit was excessive , amounting to $5
million or $500 ,000 for each individual defendant. More-
over, the General Counsel points out, the suit was filed
I Here the Regional Office held the matter until the circuit court had
ruled in favor of the defendants in the civil action , in accord with the
ruling of the Court in Bill Johnson 's, supra
H. W. BARSS CO.
against those individuals , rather than naming only the
Union , thus leading to the conclusion that the suit was,
itself, filed in retaliation for the actions of these employ-
ees in carrying signs bearing the offensive message.
The General Counsel further points to the facts, first,
that the Company did not seek to enjoin the alleged de-
famatory picketing , and, second that the Company chose
to amend its action some 8 months after the original
filing in order to add an alleged violation of Section 303
of the National Labor Relations Act.
Taking these arguments one at a time, it seems to me;
first, that the question of the $500 ,000 ad damnum con-
tained in the original suit , and retained with an additional
$500,000 directed to the Union under count II in the
amendment , is sufficiently ambiguous as to forestall my
finding that it meant $500,000 against each of the nine
named defendants , plus the Union in the original suit, for
a total of $5 million ; or a total of $500,000 to be appor-
tioned among all of the defendants under a statutory for-
mula of contribution.2
The second point listed above , the naming of a group
of individual employees in the libel suit presents similar
problems of interpretation. On the one hand, the filing of
the lawsuit against these individuals certainly did restrain
and intimidate them.3 but on the other hand we must
consider the essential elements of a lawsuit based on ma-
licious defamation of character filed in a state court. It
would be preferable , in these circumstances, to name the
individual tortfeasors as opposed merely to name the
Union which may be responsible only for furnishing the
ideas which were, then , implemented by the individuals.4
I might note finally, in this regard , that eight individ-
uals were named in the initial suit, but despite the fact
that many other employees were present during the 15-
month period of picketing , no other individual names
were added to the list of defendants in the lawsuit.
In regard to the failure to seek injunctive relief, and
the amendment of March 1984, I find less ambiguity.
Here we are looking at tactical determinations made
during the course of civil litigation , possibly prompted
by the chances of obtaining relief in the injunction proc-
ess in the state court, or to add new and different counts
to the same proceeding in order to incease the chances
of victory in the total proceeding.
I cannot, then , find that these external manifestations
of the Company's position and the tactical maneuvers in
the lawsuit show that Respondent's motives here were
malicious , discriminatory, or retaliatory.
There remains the question of the lawsuit itself. Aside
and apart from those aspects discussed above, the funda-
x General Laws of Massachusetts , Ch 231B
The testimony of Alexander Thibeault and William Remington Jr
was graphic and convincing on the effect of the lawsuit on individual
working people
4 In this kind of case , too, it might be well to name individuals as de-
fendants, since if only the Union were named , it would be more likely
that the court could consider the subject picketing merely another part of
the overall labor dispute , and not a a separate proceeding Linn Y. Plant
Guard Workers Local 114, 383 U S 53 (1966)
1291
mentals of the lawsuit must be examined to determine
whether the suit was substantial in nature , based upon ra-
tional legal grounds, that there was a tortious injury to
the character and ability of H. W. Barss and his Compa-
ny, susceptible of proof and providing a remedy in the
nature of money damages; or whether it was merely a
sham , a baseless lawsuit designed to retaliate against the
Union and its members because Barss was angry, even
outraged , at this picketing.
My conclusion on this point, after reviewing the
record in this case , the briefs of the parties, the appendix
on appeal to the First Circuit, and the opinions of Judge
Mazzone and the court of appeals , is that the Company
had an arguable point, namely that the picket sign, as
drawn , could have left the impression that Barss himself
was an ignoble and untrustworthy person, and that such
a description could injure himself personally and his busi-
ness which depends on trust between contractor and
owner.
To establish a basis in law in order to survive the
Motion for Summary Judgment the Company would
have had to convince the district court to filter out the
red letters on the picket signs, leaving only the sharp
black letters conveying the message to travelers along
Massachusetts Highway 30 that "HOWARD BARSS IS
A SCAB."
Judge Mazzone recognized this argument , but felt im-
pelled under both Federal and state precedents , to con-
sider the entire picket sign , thus drawing from the whole
context of the writing a conclusion different than that
urged by the Company. Oilman v. Evans, 713 F.2d 838;
Flemming v. Benzaquin , 390 Mass . 175 (1983).
It is not up to me to make any determination on the
merits of the lawsuit. I do find , however, that both the
district court and the appeals court took the matter seri-
ously, they recognized that the Company, the plaintiff in
the lawsuit , had an arguable, although weak and attenu-
ated case, and made no comments as to frivolousness or
baselessness in making their determinations . I find, then,
that the Company's case was arguable, and might have
been able to convince some court that there was suffi-
cient cause to send the matter to a jury. In these circum-
stances I cannot find that the Company's position was
frivolous and baseless, or used as retaliation against em-
ployees for engaging in protected activity under Section
7 of the Act; Bill Johnson's Restaurants, supra.
CONCLUSIONS OF LAW
1. H. W. Barss Company, Inc. is a corporation en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 475, United Brotherhood of Carpenters and
Joiners of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. H. W. Barss Company, Inc. has not committed any
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]