BOGUE, Senior District Judge.
Beverly Hills Foodland, Inc. (Foodland or appellant) appeals the District Court's
On or about April 23, 1989 appellant opened a retail grocery store, Beverly Hills Foodland Supermarket, in the City of Beverly Hills, St. Louis County, Missouri. Shortly thereafter, Foodland owners were contacted by representatives of the Union regarding unionizing the employees. The overtures were rejected and the Union began to conduct organizational activities on Foodland's premises. Foodland reacted negatively to the Union's activities and at one point called the police to have the Union organizers removed from its parking lot. Foodland's actions resulted in an unfair labor practice complaint being filed by the Union with the National Labor Relations Board. A settlement followed in which Foodland was required to post a notice in its store for sixty days stating that it would not interfere with the Union's organizational activities.
In July 1989, Union business representative Patrick McDonough (McDonough) notified Foodland by letter that the Union was terminating its organizational efforts. Not long after, the Union began a campaign publicly challenging Foodland policies, including its non-union status, wages paid to employees and the prices charged at Foodland. It appears the most contentious aspect of the Union's campaign focused on Foodland's treatment of its black employees.
Foodland initiated this action and in its second amended complaint alleged ten counts of state defamation and tortious interference based on the Union's picketing and boycotting activities. The action was removed to federal court based upon preemption by the National Labor Relations Act, 29 U.S.C. § 151 et. seq. (as amended) (hereinafter NLRA). Appellant's count I was a libel action based on a handbill distributed by the Union entitled "Are the Scales of Justice Balanced?" See, infra, note 4. Eight questions are posed in the handbill, including, "Is
Foodland's counts VI through X were based on the same factual circumstances as counts I through V, respectively, but added an allegation of actual malice on the part of the Union. The District Court dismissed the first five counts upon the Union's motion for summary judgment because it determined all actions occurred during a "labor dispute" and actual malice was required to be pled, and was not. 840 F.Supp. at 703. Of the second five counts (alleging actual malice), dismissal pursuant to the summary judgment motion was granted as to all but the counts in which store owners were characterized as racists (counts VIII and X). Id. at 704-07. The surviving counts were voluntarily dismissed and this appeal followed. The issues on appeal are whether the Union's conduct occurred during a labor dispute and, if so, whether the Union's conduct could give rise to state claims sounding in defamation or tortious interference.
We review the District Court's grant of summary judgment de novo, applying the same standards and affirming only when the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
A. EXISTENCE OF A LABOR DISPUTE
If the Union's activities complained of occurred within the context of a "labor dispute", Foodland's state tort claims are preempted by federal labor law. Old Dominion Br. No. 496, Nat'l Ass'n Letter Car. v. Austin, 418 U.S. 264, 271-73, 94 S.Ct. 2770, 2775, 41 L.Ed.2d 745 (1974) (citing, Linn v. United Plant Guard Wkrs., 383 U.S. 53, 86 S.Ct. 657, 662, 15 L.Ed.2d 582 (1966)). Linn and Austin strike a compromise between state laws penalizing defamatory publication and federal labor policy protecting freedom of speech. As such, when the NLRA is implicated, i.e. during labor disputes, state defamation actions are partially preempted, with plaintiffs required to meet an actual malice standard similar to that announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (recovery permitted only if the defamatory publication was made with knowledge that it was false or with reckless disregard of whether it was false or not). Austin, 418 U.S. at 271-73, 94 S.Ct. at 2775.
"Labor dispute" is defined within the NLRA as "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 proximate relation of employer and employee." 29 U.S.C. § 152(9). Foodland contends the letter from McDonough indicating the Union was ceasing organizational activities effectively ended any labor dispute. We do not agree that the McDonough letter is determinative on this issue. Courts have routinely
The definition of labor dispute under the NLRA is very broad and "rarely have courts found concerted union activities to fall outside this broad definition." Hasbrouck v. Sheet Metal Workers Local 232, 586 F.2d 691, 694 n. 3 (9th Cir.1978) (citing Mountain Navigation Co. v. Seafarers', 348 F.Supp. 1298, 1302-03 (D.Wis.1971)). Where the union acts for some arguably job-related reason and not out of pure social or political concerns, a "labor dispute" exists. Hasbrouck, 586 F.2d at 694 n. 3. We are persuaded the Union campaign publicizing Foodland's non-union status, wages and benefits paid to employees and alleged racial disparities in its work-force involved "terms" and "conditions" of employment. As such, a labor dispute existed which partially preempted Foodland's state defamation and tortious interference claims. The District Court did not err in granting summary judgment as to appellant's counts not alleging actual malice as required under federal labor law.
B. FOODLAND'S STATE LIBEL AND SLANDER CLAIMS
Even in the context of a labor dispute, malicious defamation enjoys no constitutional protection. Linn v. United Plant Guard Workers, 383 U.S. 53, 63, 86 S.Ct. 657, 663, 15 L.Ed.2d 582 (1965). State libel and slander actions may be maintained within the context of a labor dispute but only if the defamatory publication is shown by clear and convincing evidence to have been made "with knowledge that it was false or with reckless disregard of whether it was false or not." Old Dominion Br. No. 496, Nat'l Ass'n Letter Car. v. Austin, 418 U.S. 264, 281, 94 S.Ct. 2770, 2779-80, 41 L.Ed.2d 745 (1974).
Two statements attributed to the Union are before this court on appeal. The first is question one in a handbill distributed by the Union inviting readers to ask themselves whether Foodland was discriminatory in its hiring practices.
As to the first statement, the District Court concluded summary judgment was proper because it is not a false "statement of fact", rather it invites readers to make his or her own inquiry and assess the facts for him or herself. 840 F.Supp. at 705. We agree. The presence of a false statement of fact is a sine qua non for the maintenance of state defamation action in the labor field. Austin, supra, 418 U.S. at 283-85, 94 S.Ct. at 2781. This inquiry must be made prior to applying the reckless or knowing falsity (malice) test to the statement. Id. While statements in the form of opinions or questions do not enjoy absolute protection as such, see e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), to be actionable such statements must be "reasonably read as an assertion of a false fact". Chapin v. Knight-Ridder, Inc., 993 F.2d 1087
Similar principles apply to the second statement regarding the picket signs proclaiming Foodland to be "unfair" to its black employees. The Supreme Court has stated that "to use loose language or undefined slogans that are part of the conventional give and take in our economic and political controversies-like `unfair' and `fascist' — is not to falsify facts." Austin, supra, 418 U.S. at 284, 94 S.Ct. at 2781, citing Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 127, 88 L.Ed. 58 (1943). "Unfair" is a term requiring a subjective determination and is therefore incapable of factual proof. As such, the statement is not actionable and the District Court did not err in granting summary judgment.
C. FOODLAND'S TORTIOUS INTERFERENCE CLAIMS
Foodland's counts II and VII (without alleging actual malice and with malice, respectively) alleged the statements in the "Scales of Justice" handbill tortiously interfered with its right to contract with its customers (i.e. Union's actions allegedly caused Foodland to lose business due to the decrease in consumer shopping). The District Court viewed the Union's activity in this regard as constitutionally protected and granted the Union's summary judgment motion dismissing these counts. 840 F.Supp. at 706. We agree.
At the outset we note the malice standard required for actionable defamation claims during labor disputes must equally be met for a tortious interference claim based on the same conduct or statements.
As a parting shot, Foodland in its reply brief states that the Union's picketing and pamphletting activities were an unfair labor practice under Section 8(b)(7)(C) of the NLRA, 29 U.S.C. § 8(b)(7)(C), and therefore urge this Court to strip the Union activities of their constitutional protection. Specifically, Foodland argues that because the Union's picketing was recognitional as opposed to informational (alleged to be an unfair labor practice under the present facts), the Union "cannot stand behind the First Amendment to the U.S. Constitution" as a defense and assert that Foodland cannot meet all required elements of a tortious interference claim.
This argument must fail. First, Foodland's argument would require us to find that an unfair labor practice was in fact committed by the Union. No such claim was raised in Foodland's complaint and the District Court was not faced with the issue. As such, whether or not an unfair labor practice was committed is beyond the scope of our review. Additionally, the constitutional protection afforded the Union's activities in this case are not in place to enable the Union to raise a defense to Foodland's claim of tortious interference. Rather, the Constitution serves to prohibit the claim from being brought at all. Allowing a tortious interference cause of action to proceed against the Union for its conduct in this case would amount to an impermissible restraint on the Union's First and Fourteenth Amendment rights. NAACP v. Claiborne Hardware Co., supra, 458 U.S. at 916 n. 51, 102 S.Ct. at 3427 n. 51. This claim was properly dismissed by the District Court.
For the reasons stated above, we affirm the District Court in all respects.
The questions are followed by the statement, "For answers to these questions call 381-1122." (Foodland's telephone number). At the bottom of the handbill is the statement "PLEASE DO NOT SHOP BEVERLY HILLS FOODLAND."