Ruzicka Electric v. Local 1 IBEW

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3018
___________
Ruzicka Electric and Sons, Inc.; *
Thomas R. Ruzicka, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
International Brotherhood of Electrical *
Workers, Local 1, AFL-CIO, *
*
Appellee. *
___________
Submitted: April 14, 2005
Filed: October 11, 2005 (Corrected 10/19/05)
___________
Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
___________
RILEY, Circuit Judge.
Ruzicka Electric and Sons, Inc. (Ruzicka Electric) sued Local 1 of the
International Brotherhood of Electrical Workers ( Local 1) under section 303 of the
Labor Management Relations Act (LMRA), 29 U.S.C. § 187, alleging Local 1
engaged in unlawful secondary activity, in violation of 29 U.S.C. § 158(b)(4)(ii)(B).
Ruzicka Electric also brought state law defamation claims against Local 1 for
statements made by its agents questioning the quality of Ruzicka Electric’s work.
Thomas Ruzicka (Ruzicka), Ruzicka Electric’s president and founder, individually
brought a state law invasion of privacy claim against Local 1 based on the conduct
of private investigators hired by Local 1 to surveil Ruzicka. After Ruzicka Electric
and Ruzicka presented their claims to a jury, the district court granted judgment as a
matter of law to Local 1 on all claims. Ruzicka Electric and Ruzicka appeal, claiming
the district court erred in dismissing Ruzicka Electric’s section 303 claims;
dismissing Ruzicka Electric’s defamation claims; dismissing Ruzicka’s invasion of
privacy claim; not allowing Ruzicka Electric to present evidence about its claim that
Local 1 engaged in secondary activity at a job site not listed in Ruzicka Electric’s
complaint; and admitting Local 1’s evidence about administrative proceedings
involving Ruzicka Electric. We affirm in part and reverse in part. Specifically, we
remand for a new trial on Ruzicka Electric’s section 303 claims and Ruzicka’s
invasion of privacy claim, and we affirm the district court in all other respects.
I. BACKGROUND
Because we are reviewing the district court’s grant of judgment as a matter of
law to Local 1, we do not make credibility determinations or weigh the evidence;
instead, we draw all reasonable inferences in favor of Ruzicka Electric and Ruzicka.
Dossett v. First State Bank, 399 F.3d 940, 954 (8th Cir. 2005). Therefore, we will
summarize the evidence adduced at trial under that standard.
Ruzicka Electric, a Missouri corporation founded and headed by Ruzicka,
provides commercial electrical services. Local 1 is a labor union representing
electricians in eastern Missouri. Ruzicka Electric and Local 1 do not have a history
of friendly relations. Over the years, Local 1 has publicized its area standards dispute
with Ruzicka Electric by using pickets and handbills. This case addresses whether
Local 1’s conduct in its dispute with Ruzicka Electric violated federal or state laws.
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A. Lindenwood University Project
In February 2001, Lindenwood University (Lindenwood) hired Ruzicka
Electric to perform electrical work on a student center. On April 17, Local 1 sent
letters to Lindenwood and Ruzicka Electric notifying them of Local 1’s area
standards dispute with Ruzicka Electric, and that Local 1 intended to engage in area
standards picketing at the Lindenwood job site to publicize Local 1’s belief that
Ruzicka Electric pays its non-union employees “substandard wages and fringe
benefits.” Local 1 assured Lindenwood and Ruzicka Electric it did not have a dispute
with Lindenwood; it did not seek to remove Ruzicka Electric from the job or have
work reassigned; it did not seek “to cause anyone to cease doing business with
anyone else”; it would not interfere with work conducted at the job site; and the
picket would be legal and peaceful. Lindenwood later established a dual gate system
at the job site, with a reserved gate to be used by Ruzicka Electric and its suppliers,
and a neutral gate to be used by neutral contractors who were not part of the area
standards dispute. From June to October, Local 1 picketed and distributed handbills
at the Lindenwood job site.
On July 18, Local 1 received information that led it to believe Ruzicka Electric
had tainted the neutral gate by accepting deliveries through that gate rather than the
reserve gate. In response, Local 1 “decided to go ahead and put a picket [at the
neutral gate] because we felt that the deliveries were for Ruzicka Electric and they
had in our opinion violated the neutral gate.” Local 1 picketed the neutral gate on
July 18 and 19. Picketing the neutral gate resulted in “other trades [deciding] not to
enter the project.”
Also on July 18, Julie Mueller (Mueller), Lindenwood’s Chief Operations
Officer, faxed a letter to Local 1 advising Local 1 no electrical deliveries had been
made to Ruzicka Electric through the neutral gate, informing Local 1 another
electrical contractor besides Ruzicka Electric was conducting business on the
premises, and “urg[ing Local 1 to] cease picketing against Ruzicka” Electric at the
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neutral gate. The letter also informed Local 1 that failure to cease picketing would
result in Lindenwood taking “all appropriate measures to stop your illegal activity.”
Local 1 claims it was not aware of Mueller’s letter at the time.
On the morning of July 19, the general contractor for the Lindenwood project
informed Local 1 the electrical deliveries made through the neutral gate were going
to another electrical contractor, and not to Ruzicka Electric. After briefly
investigating, Local 1 discovered another electrical contractor was on-site, and
decided to remove the picket from the neutral gate. Local 1 acknowledged it could
have mistakenly believed the neutral gate had been tainted, noted it did not know
another electrical contractor was on-site, and stated it did not ask Lindenwood about
the electrical deliveries through the neutral gate before it decided to set up a picket.
Local 1 did not ask Lindenwood about the possibility that Ruzicka Electric had
tainted the neutral gate before it picketed the gate because Lindenwood “was not real
happy with [Local 1] at the time” based on “past experience” and Local 1’s picketing
activities.
At trial, Mueller testified, in a confusing fashion, that ironworkers left their
jobs because of Local 1’s picket. Without mentioning a specific date, Mueller also
testified she saw at least one Local 1 agent wearing an observer vest at the neutral
gate talking to ironworkers. Specifically, she stated, “The conversation that I
personally witnessed was the [Local 1] individuals stating to the ironworker
individuals, Hey, don’t cross the line, stick with us, don’t go in there. . . . Those
particular individuals did not cross through the neutral gate.” During
cross-examination, Mueller stated the ironworkers told her on multiple occasions
“that Local 1 had told them to leave the job.” Mueller also said she saw observers at
the neutral gate talking to “ironworkers and other tradesmen” several times on
multiple days from July to October 2001. Mueller stated she saw observers and
picketers at the neutral gate “standing in the right of way, standing on
[Lindenwood’s] property, standing within the median of [Lindenwood’s] property,
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sometimes standing on the side, sometimes flagging cars down versus just standing
there.” Mueller also testified she saw a Local 1 member wear an observer vest one
moment, and then, within minutes, switch to being a picketer.
John Campbell (Campbell), a Ruzicka Electric employee, testified that, during
the summer and fall of 2001, he saw a Local 1 observer at a neutral gate “actually
stop[] a concrete truck and ha[ve] a conversation with the driver, and immediately
afterwards the concrete truck left.” Campbell also testified that, in late August or
early September, he saw Local 1 agents wearing picket vests at the neutral gate in the
morning until the ironworkers would leave the job site, at which time “the picketers
would change their vests to observer vests.” Campbell estimated this activity
occurred about three or four times a week for two weeks. Anthony Giuliani
(Giuliani), another Ruzicka Electric employee, also testified he saw Local 1 agents
wear vests (which he could not read) until the ironworkers, plumbers and carpenters
did not cross the picket, at which time the Local 1 agents changed into other vests.
Larry Davis (Davis), who worked for the general contractor as project manager
in 2001 and now consults for Lindenwood, testified he saw Local 1 agents without
observer vests while at the neutral gate, and he also saw them cross their arms while
wearing vests in a manner that would cover up “observer.” Davis himself could not
read what the vests said. Ruzicka testified he “saw a specific instance once where the
[Local 1] observer was talking with employees, ironworkers and plumbers and
craftsmen for the job site, before they . . . were going to enter the project, and then
that was one of the days that nobody showed up.”
On August 23, Local 1 handbillers distributed leaflets at the Lindenwood job
site to publicize its labor dispute with Ruzicka Electric and to counter public
comments that Local 1 was violating the law in its picketing. The leaflets explained
Local 1’s labor dispute was with Ruzicka Electric, Local 1 was not asking any
employee to stop working, and Local 1 was not seeking to stop any deliveries. The
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leaflet also explained Local 1 had charged Ruzicka Electric with violating federal
labor law, and Ruzicka Electric settled those charges with the National Labor
Relations Board (NLRB). Local 1 attached a copy of Ruzicka Electric’s settlement
to the leaflets.
At the beginning of the school year at Lindenwood, Local 1 distributed leaflets
“to the students and parents of Lindenwood.” Local 1 also sent a letter to
Lindenwood’s president and board of directors advising them “of the steps that Local
One is taking in our non-picketing publicity campaign arising from our labor dispute
with Lindenwood College.” In addition to detailing Local 1’s planned publicity
campaign, the letter stated “Local One is always ready to resolve this labor dispute
with Lindenwood in a good faith manner.”
Davis testified the Lindenwood project was scheduled to be completed by
August 15, but was not completed until late October. Davis testified the schedule got
off track for several reasons, but noted Loca1 1’s picketing partially caused the delay:
“When this situation happened with IBEW Local 1, people started walking off the
job. Well, when you–when they walk off the job, other trades go off the job, then that
sort of throws everybody behind.”
According to Ruzicka, the Lindenwood project involved “a highly complex
structure because you have multiple grade entrances to the building.” Ruzicka
testified numerous contractors work on a critical path in these types of projects, and
the critical path requires certain contractors to complete their work before other
contractors can complete their portions of the project. Because the ironworkers, who
numbered between thirty and forty workers, refused to work, the front portion of the
critical path was delayed, which compressed Ruzicka Electric’s portion of the
schedule. Specifically, Ruzicka stated, “Well, the ironworkers are totally critical path
for the first third of the project, and everybody is waiting and waiting and waiting for
the ironworkers to get done with their work so everybody else can get started.”
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Ruzicka testified Local 1’s picketing delayed the overall schedule, causing
compression of the time to finish the project: “The original schedule where we had
an orderly progressive schedule to complete the project was not able to be done. It
turned into chaos [where everybody was working in the same places].” Ruzicka
testified “the total cost overruns that were caused because of the schedule conflicts
and the chaos and the interference from Local 1 with their illegal picketing on the
project” totaled $194,040.16. To calculate that number, Ruzicka “took the cost
overrun on the project [i.e., 4118 extra hours] and multiplied it by our hourly rate
[i.e., $47.12], and I said that is the cost overrun attributed to Local 1 IBEW.” When
asked on cross-examination if the cost overruns could have been caused by erroneous
cost estimates before the project began, Ruzicka responded, “Our estimates almost
always come in right on the money.”
B. Fergusson-Florissant School District Project
Also in 2001, the Fergusson-Florissant School District (School District) built
a new elementary school. The School District hired Ruzicka Electric to perform the
electrical work on the school. On March 1, 2001, Local 1 sent letters to the School
District, Ruzicka Electric and the general contractor for the project, informing them
of Local 1’s area standards dispute with Ruzicka Electric and that Local 1 would
“exercise [its] rights to engage in area standards picketing of [Ruzicka Electric].”
The letter advised all parties Local 1’s dispute was with Ruzicka Electric only; the
area standards picketing would be legal and peaceful; Local 1 did not seek “to cause
anyone to cease doing business with anyone else”; and Local 1 would make no effort
“to interfere with the activities of any employee on the job site or having business at
or near the site.” The School District established a dual-gate system at the job site.
Ruzicka testified that, on ten or fifteen occasions between March and April
2001, Local 1 agents left observer vests on a chair at the neutral gate without having
an observer present. According to Ruzicka, “the ironworkers simply did not come on
the job” for at least six weeks after the unattended observer vests were left at the
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neutral gate. Local 1 agents testified an observer vest was left unattended only once
at the neutral gate. Another Local 1 agent testified he advised all picketers and
observers how to conduct themselves.
On April 5, 2001, Local 1 officials met with School District board members,
informing them of Local 1’s concerns about the quality of Ruzicka Electric’s work,
and telling them Ruzicka Electric used apprentices who were not properly trained.
At the meeting, Local 1 officials asked the School District to use Local 1 contractors,
and also asked the School District to dismiss Ruzicka Electric from the project if
Ruzicka Electric violated prevailing wage laws.
Ruzicka Electric contends Local 1 engaged in unlawful picketing by leaving
the observer vests unattended at the neutral gate to signal secondary employees to
observe a picket. Similar to the testimony relating to the Lindenwood project,
Ruzicka testified the ironworkers’ absence from the project compressed the work
schedule and delayed Ruzicka Electric’s ability to finish its portion of the project.
According to Ruzicka, Local 1’s unlawful signal picketing caused Ruzicka Electric’s
man hours to double from the estimated 5,609 hours to complete the project to 11,350
hours. Thus, Ruzicka Electric seeks compensation for the additional 5,741 man hours
to complete the project.
C. Defamation Claims
In October 2001, Joseph Cousin (Cousin), a Local 1 business representative,
talked to an employee of the City of St. Louis in charge of a housing project who was
preparing to bid out electrical work. Cousin alerted the city employee to “some
pictures of some [unfinished] work done by Ruzicka [Electric] from [a high school
project] that [Cousin] thought was shoddy work.” Cousin argued “shoddy work”
means “substandard” and clarified shoddy as “[n]ot in a workman-like manner,
sloppy, ugly, not level.”
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In a separate incident, Lawrence Hepburn (Hepburn), a Local 1 business agent,
told the School District’s board he “felt” Ruzicka Electric’s work on a school project
was “dangerous,” “improper,” and “not up to code.” Hepburn never told the School
Board that inspectors had found Ruzicka Electric guilty of violating the electrical
code. At trial, Hepburn testified he had forty years in the electrical business and he
knew the code, and that, “it was my opinion . . . [s]ome of [Ruzicka Electric’s work]
was dangerous and some of it was against the code.”
D. Privacy Claim
In April 1998, Local 1 hired a private investigator to investigate Ruzicka
Electric and Ruzicka. The private investigator, in turn, hired four additional
investigators to conduct surveillance. The investigators surveilled Ruzicka’s private
residence with the purpose “to establish a daily routine . . . [and] to see what time
[Ruzicka] got home.” The written surveillance reports detailed when Ruzicka left and
returned to his residence, as well as times in the morning and at night when lights
were turned on or off. At trial, the private investigator was unable to answer
numerous questions, including exactly where he and his investigators were located
when they surveilled Ruzicka’s residence. However, the investigator said neither he
nor his investigators went on Ruzicka’s property. The investigators made videotapes
of the surveillance and mailed the tapes to Local 1. Ruzicka testified he subpoenaed
the surveillance videotapes from Local 1, but Local 1 never produced the videotapes,
saying the tapes were lost.
When asked specific questions about the surveillance notes, Ruzicka testified
the investigators could not have conducted their surveillance from public streets or
the like. For example, when asked whether an investigator could see certain lights
in Ruzicka’s home from the street, Ruzicka responded, “It would be impossible. I had
a very–I enjoy my privacy a lot, and it was a private address, and from public property
there is absolutely no way to see my house [because of the] tree lines. There is two
reasons. One is that the house was elevated about 30, 40 feet above the street line or
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the level of the street, and it is about 300 to 400 feet back, and you have to go through
some–the driveway kind of winds around, and it is just impossible to see.” Ruzicka
also explained his property is lined with about 100 feet of trees, including evergreen
trees, stating, “You simply cannot see through there. It is not possible.” Based on his
knowledge of his property, Ruzicka testified a person would have to be on his
property to see the things the surveillance notes depict.
Ruzicka maintains he was appalled, amazed, shocked, and angered when he
discovered “somebody had been lurking around on my property . . . taking videotapes
of me and my family [and] had been on my property until 11:00 at night on a
Saturday.” Ruzicka testified the surveillance activities forced him to be concerned
about his and his family’s safety, noting he felt violated because he “bought a house
that [he] thought was private, posted no trespassing signs, and apparently that doesn’t
do any good.” Because of the investigators’ surveillance activities, Ruzicka
purchased a home security system–including video surveillance cameras–which cost
$4,800. He also bought remote starters and security systems for his automobiles.
Feeling violated by the surveillance activities, Ruzicka said he and his family suffered
heightened anxiety.
E. Lawsuit
Ruzicka Electric sued Local 1 under section 303 of the LMRA, 29 U.S.C.
§ 187(a), alleging Local 1 violated section 158(b)(4)(ii)(B) of the National Labor
Relations Act by conducting illegal picketing and secondary boycotts of Ruzicka
Electric at the Lindenwood project, the School District project, and the Webster
University (Webster) project (Count I).1 Ruzicka Electric also asserted two counts
1
Before trial, Ruzicka Electric voluntarily dismissed its section 303 claim as it
relates to the Webster project.
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of defamation against Local 1 (Counts II-III). Ruzicka alleged Local 1 invaded his
privacy (Count V).2
From August 2 to 9, 2004, Ruzicka Electric and Ruzicka tried their claims to
a jury. At trial, Ruzicka Electric attempted to present evidence to the jury regarding
Local 1’s picketing in 1998 on a project at the Hilton Garden Inn (Hilton). Ruzicka
Electric claims Local 1 engaged in unlawful secondary activity at the Hilton job site,
causing Ruzicka Electric $193,405.92 in damages. Local 1 moved to exclude this
evidence, because it was unrelated in time and place to the alleged unlawful picketing
identified in Ruzicka Electric’s complaint. The district court excluded the evidence
regarding Local 1’s conduct at the Hilton job site, noting Ruzicka Electric specifically
pled three sites, which did not include the Hilton job site.
During trial, the district court allowed Local 1’s evidence of its prevailing wage
complaint against Ruzicka Electric with the Missouri Department of Labor and
Industrial Relations involving Ruzicka Electric’s work on the School District project.
The evidence showed Ruzicka Electric owed $12,331.35 in restitution to eight of its
employees and $1,240 in penalties to the School District. Local 1 sought to admit
this evidence to show Local 1 pursued its prevailing wage claim against Ruzicka
Electric after Local 1 officials met with School District officials. The district court
also allowed Local 1 to enter into evidence a settlement agreement between Ruzicka
Electric, Local 1 and the NLRB. This settlement agreement was attached to the
handbill Local 1 distributed at the Lindenwood project publicizing its area standards
dispute with Ruzicka Electric.
2
Not relevant to this appeal, Count IV alleged tortious interference with a
contract and business expectancy.
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At the close of Ruzicka Electric’s and Ruzicka’s case, the district court entered
judgment as a matter of law in favor of Local 1 on all claims. Ruzicka Electric and
Ruzicka appeal.
II. DISCUSSION
We review de novo the district court’s grant of judgment as a matter of law to
Local 1. Dossett, 399 F.3d at 953. The district court appropriately granted judgment
as a matter of law to Local 1 if Ruzicka Electric and Ruzicka were “fully heard” and
“no legally sufficient evidentiary basis” exists for a reasonable jury to find for them
on their claims. Fed. R. Civ. P. 50(a)(1).
A. Secondary Activity
Section 303 of the LMRA provides a private cause of action for a person
injured by a “labor organization [engaged] in any activity or conduct defined as an
unfair labor practice in section 158(b)(4).” 29 U.S.C. § 187. Section 158(b)(4)
forbids secondary activity (including secondary picketing):
It shall be an unfair labor practice for a labor organization or its agents–
. . . to threaten, coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case an object thereof
is . . . forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other
person, . . . : Provided, That . . . this clause [] shall [not] be construed to
make unlawful, where not otherwise unlawful, any primary strike or
primary picketing.
29 U.S.C. § 158(b)(4)(ii)(B) (emphasis in original). Congress enacted section
158(b)(4)(ii)(B) because it was concerned with third parties getting involved with
labor disputes not their own. NLRB v. Local 825, Int’l Union of Operating Eng’rs,
400 U.S. 297, 302 (1971). Congress focused its concern “on the secondary boycott,
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which was conceived of as pressure brought to bear, not upon the employer who
alone is a party [to a dispute], but upon some third party who has no concern in it with
the objective of forcing the third party to bring pressure on the employer to agree to
the union’s demands.” Id. at 302-03 (quotations, citations and footnotes omitted).
Section 158(b)(4)(ii)(B) “also reflects a concern with protecting labor organizations’
right to exert legitimate pressure aimed at the employer with whom there is a primary
dispute.” Id. at 303. Thus, a labor organization’s “primary activity is protected even
though it may seriously affect neutral third parties.” Id. Only when a labor
organization intends “to enmesh neutral secondary employers in primary labor
disputes between the union and another employer” does it violate federal labor law.
NLRB v. Constr. & Gen. Laborers’ Union Local 1140, 577 F.2d 16, 18 (8th Cir.
1978).
Our task is not to scour the record for evidence of how Local 1’s conduct
impacted neutral employers at the job sites at the heart of this dispute, i.e., we have
no interest in the consequences to neutral employers or to Ruzicka Electric, for that
matter, of Local 1’s legitimate, primary labor activity. Instead, we review the record
to determine whether evidence exists showing Local 1 engaged in prohibited
secondary activity aimed at neutral employers. Operating Eng’rs, 400 U.S. at 303.
If Local 1 engaged in secondary activity, then it violated federal labor law. Although
seemingly straightforward in its presentation, we understand our task is not mundane.
According to the Supreme Court, “the tapestry that has been woven in classifying
such conduct [as either primary or secondary] is among the labor law’s most
intricate.” Id.
Ruzicka Electric argues it presented sufficient evidence to prove Local 1
engaged in unlawful secondary activity, that its unlawful activity caused neutral
employers at the job sites to stop working, and that the failure of those neutral
employers to work compressed the work schedule such that Ruzicka Electric incurred
greater costs to complete its work. Local 1 maintains Ruzicka Electric failed to prove
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Local 1 deliberately coerced neutral employers not to do business with Ruzicka
Electric, and Ruzicka Electric failed to prove Local 1’s picketing activity caused
Ruzicka Electric’s alleged damages. We agree with Local 1, the two main issues
concerning the section 303 claims are (1) whether Ruzicka Electric established Local
1’s picketing activity was focused on neutral employers; and (2) whether that activity,
if any, damaged Ruzicka Electric.
1. Lindenwood Project
Ruzicka Electric contends it presented sufficient evidence for a reasonable jury
to find Local 1 engaged in unlawful secondary activity on the Lindenwood project.
We agree, because the evidence at trial could support a jury finding Local 1
encouraged employees of neutral employers not to work at the job sites. Lane Crane
Serv., Inc. v. Int’l Bhd. of Elec. Workers, Local Union No. 177, 704 F.2d 550, 553
(11th Cir. 1983) (stating picketing “will be considered unlawful if any object of the
picketing is for an unlawful purpose. The picketing will be unlawful if there is an
expectation or a hope or a desire that employees of the secondary employer will be
induced or encouraged to take concerted action to quit working behind the picket line
in order that a prohibitive secondary effect on the primary employer will occur.”)
(quotations and citations omitted). For example, Mueller testified Local 1 agents
asked ironworkers, i.e., employees of neutral employers, not to cross the picket line.
In addition, Ruzicka Electric presented evidence that Local 1 agents, acting as
observers at the neutral gate, engaged in picketing activity, asking neutral employees
to refuse to work. If believed, this evidence establishes Local 1 engaged in unlawful
secondary activity.
Ruzicka Electric’s evidence also allows a reasonable inference Local 1
picketed the neutral gate, with the resulting inference Local 1 engaged in unlawful
secondary activity. Local 1’s decision to picket the neutral gate created a rebuttable
presumption it intended to ensnare neutral employers in its labor dispute with Ruzicka
Electric. See Kinney v. Int’l Union of Operating Eng’rs, Local 150, 994 F.2d 1271,
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1275 (7th Cir. 1993); see also NLRB v. Int’l Union of Elevator Constructors, 902
F.2d 1297, 1308 (8th Cir. 1990). Although Local 1 may attempt to rebut this
presumption at trial, it has not rebutted the presumption as a matter of law. For
instance, the evidence at trial showed Local 1 decided to picket the neutral gate based
on an arguably inadequate investigation of whether a neutral employer received
electrical deliveries through the neutral gate. Indeed, the evidence showed a neutral
electrical contractor was on-site, and no electrical deliveries were made to Ruzicka
Electric through the neutral gate. In addition, Lindenwood faxed a letter to Local 1
on July 18 explaining the neutral gate had not been tainted and demanding Local 1
cease its unlawful picketing of the neutral gate. Although Local 1 claims it was not
aware of the letter, a jury is better equipped to resolve factual and credibility disputes
like this.
Finally, Ruzicka Electric presented evidence Local 1 agents actively
interchanged observer and picket vests while at the neutral gate. For instance, Local
1 agents wore picket vests at the neutral gate until employees of neutral employers
left the job site, at which time the agents changed into observer vests. A reasonable
jury could decide the purpose for this activity was to force neutral employers off the
job site in support of Local 1’s primary dispute with Ruzicka Electric. If this conduct
occurred, it is unlawful.
Without any doubt, Local 1’s primary labor dispute with Ruzicka Electric gave
Local 1 the right to picket Ruzicka Electric and to place observers at the neutral gate
to ensure Ruzicka Electric was not avoiding the effects of Local 1’s lawful picket.
See, e.g., Local 761, Int’l Union of Elec., Radio & Mach. Workers v. NLRB, 366 U.S.
667 (1961); NLRB v. Local 825, A, B, C, D, Int’l Union of Operating Eng’rs, 659
F.2d 379, 387 (3d Cir. 1981). By design, Local 1 established procedures to ensure
its picketers and observers complied with federal labor law. For instance, Local 1
wrote to Lindenwood and Ruzicka Electric about its intent to engage in lawful area
standards picketing against Ruzicka Electric at the Lindenwood job site. Indeed, this
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notice allowed Lindenwood to establish a dual-gate system to protect innocent,
neutral employers from Local 1’s dispute with Ruzicka Electric. Local 1 properly
promised not to enmesh neutral employers in the labor dispute, and provided written
instructions to its picketers and observers on how to act. Although Local 1 may have
intended to comply fully with federal labor law by engaging only in primary activity,
we conclude this case presents conflicting evidence about whether Local 1 engaged
in unlawful secondary activity at Lindenwood. Thus, Ruzicka Electric is entitled to
have a jury–and not judges–determine whether Local 1 violated federal labor law by
engaging in unlawful secondary activity at the Lindenwood project.
Local 1 maintains that, even if Ruzicka Electric provided sufficient evidence
to prove Local 1 engaged in unlawful secondary activity, Ruzicka Electric failed to
prove the unlawful activity proximately caused damages. Local 1 is correct, Ruzicka
Electric must prove Local 1’s unlawful secondary activity proximately caused
damages, as any “damages” caused by Local 1’s lawful, primary activity are not
compensable. See Pickens-Bond Constr. Co. v. United Bhd. of Carpenters & Joinders
of Am., Local 690, 586 F.2d 1234, 1239, 1242 (8th Cir. 1978). Although proof of
damages cannot be speculative or conjectural, mathematical precision is not
required–proof to a reasonable certainty is sufficient. LeSueur Creamery, Inc. v.
Haskon, Inc., 660 F.2d 342, 349-50 (8th Cir. 1981). We conclude Ruzicka Electric
presented sufficient evidence on damages such that a jury could decide the issue
without resorting to rank speculation or conjecture. We also reiterate the
longstanding and “familiar principle that one whose wrongful conduct has rendered
difficult the ascertainment of the precise damages suffered is not entitled to complain
of the difficulty of exact computation.” Karlen v. Ray E. Friedman & Co.
Commodities, 688 F.2d 1193, 1202 (8th Cir. 1982); see also Eastman Kodak Co. of
N.Y. v. S. Photo Materials Co., 273 U.S. 359, 379 (1927) (explaining “a defendant
whose wrongful conduct has rendered difficult the ascertainment of the precise
damages suffered by the plaintiff, is not entitled to complain that they cannot be
measured with the same exactness and precision as would otherwise be possible”).
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Thus, we will not accept Local 1’s argument that its unlawful secondary activity, if
any, did not cause Ruzicka Electric’s alleged damages. Instead, a jury should
determine the extent of Ruzicka Electric’s damages if the jury determines Local 1
violated federal labor law.
2. School District Project
We also conclude Ruzicka Electric presented sufficient evidence to prove
Local 1 engaged in unlawful secondary activity at the School District project.
Because the same principles discussed above also control our resolution of this issue,
we will not belabor our discussion. The evidence permitting this issue to go to a jury
focuses on leaving unattended observer vests at the neutral gate. When conducted
properly and not associated with a picket, the placement of observers is perfectly
legal, such that we can determine no secondary activity exists as a matter of law. See
Local 825, 659 F.2d at 387. Local 1 claims it left an observer vest unattended only
once, but the evidence conflicts on this issue, as Ruzicka Electric presented evidence
that Local 1 left observer vests unattended at the neutral gate on ten or fifteen
different occasions. When a union engaged in picketing activity at a job site leaves
observer vests sitting at a neutral gate ten to fifteen different times, we cannot
determine the union’s intent as a matter of law. Instead, we leave to a jury the
question of Local 1’s intent in leaving the unattended vests at the neutral gate.
Local 1 also claims Ruzicka Electric failed to prove damages on this claim. As
discussed above, we believe the question of damages is better left to a jury.3
3
Local 1 suggests it is immune from liability under section 303 of the LMRA
because it complied with the so-called Moore Dry Dock standards. See Sailors’
Union of the Pac. (Moore Dry Dock), 92 N.L.R.B. 547 (1950). Although one way to
unmask a union’s compliance with its requirement to limit its picketing to the primary
employer is to use Moore Dry Dock as an analytical tool, a union’s compliance with
the Moore Dry Dock standards does not require a finding that the union did not
engage in unlawful secondary activity. See, e.g., Pickens-Bond Constr. Co., 586 F.2d
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B. Defamation
Ruzicka Electric maintains the district court erred by dismissing its defamation
claims, arguing Cousin’s and Hepburn’s statements were defamatory under Missouri
law. Local 1 contends Cousin’s and Hepburn’s statements were merely opinions
which could not be defamatory.
To make a submissible claim of defamation in Missouri, Ruzicka Electric must
establish the following elements: “(1) publication, (2) of a defamatory statement,
(3) which identifies the plaintiff, (4) that is false, (5) that is published with a requisite
degree of fault and (6) damages the plaintiff’s reputation.” Sterling v. Rust
Commc’ns, 113 S.W.3d 279, 281 (Mo. Ct. App. 2003). Outside of the labor context,
we recently had the opportunity to discuss Missouri defamation law. See Hammer
v. City of Osage Beach, 318 F.3d 832, 842-44 (8th Cir. 2003). In Hammer, we listed
“a two-part test for reviewing allegedly defamatory statements to determine whether
a plaintiff can survive summary judgment: (1) whether the statement is capable of
having a defamatory meaning and, if so, (2) whether one or more privileges shields
the defendant from legal action.” Id. at 842. In addressing the first part of the test,
we noted “[s]tatements of opinion, even if made maliciously or insincerely, are
afforded absolute privilege under the free speech clause of the First Amendment.”
Id. Courts determine as a matter of law whether an alleged defamatory statement
constitutes “a protected opinion or an actionable assertion of fact.” Id. In making
this determination, we ask “‘whether a reasonable factfinder could conclude that the
statement implies an assertion of objective fact’” or merely gives an opinion. Id. at
842-43 (quoting Ribaudo v. Bauer, 982 S.W.2d 701, 705 (Mo. Ct. App. 1998)).
at 1241. Because we find evidence indicating Local 1 may have engaged in unlawful
secondary activity at the Lindenwood and School District projects, we have no need
to apply the Moore Dry Dock standards.
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However, within the context of a labor dispute, state defamation law is partially
preempted by federal labor law. Beverly Hills Foodland, Inc. v. United Food &
Commercial Workers Union, Local 655, 39 F.3d 191, 194 (8th Cir. 1994). When
federal labor law principles are implicated, as they are in this case, a plaintiff
asserting a defamation claim must satisfy “an actual malice standard similar to that
announced in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).” Id. Thus,
even in the labor context, “malicious defamation enjoys no constitutional protection.”
Id. at 195. Consequently, “[s]tate 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.’” Id. (quoting Old Dominion
Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 281 (1974)).
We conclude the district court correctly granted judgment as a matter of law
to Local 1 on Ruzicka Electric’s defamation claims, because Cousin’s and Hepburn’s
statements uttered in the midst of the labor dispute were not defamatory. The alleged
defamatory statements were opinions, not assertions of objective facts. Cousin
simply alerted a city employee to pictures of work Cousin “thought was shoddy.”
Speaking to a school board, Hepburn said he “felt” Ruzicka Electric’s work was
“dangerous,” “improper,” and “not up to code.” These men gave their opinions
regarding the quality of Ruzicka Electric’s work, i.e., no reasonable person hearing
these statements could conclude the statements were intended to give objective facts.
See, e.g., Pape v. Reither, 918 S.W.2d 376, 380-81 (Mo. Ct. App. 1996) (holding
(1) statements beginning with “it is my position,” “it is my belief,” or “I will attempt
to prove” are merely opinions not subject to defamation claims, because they are not
verifiable propositions; and (2) “allegations of fraudulent or illegal conduct are
conclusions about the consequences that should attach to certain conduct, and as such
they too are opinions”). Given the longstanding labor dispute between Local 1 and
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Ruzicka Electric, we conclude Ruzicka Electric needed considerably more evidence
than it produced in this case to hold Local 1liable for defamation.4
C. Invasion of Privacy
Ruzicka seeks reversal of the district court’s grant of judgment as a matter of
law to Local 1 on the invasion of privacy claim. Ruzicka maintains Local 1’s
investigators unreasonably intruded upon Ruzicka’s seclusion when they trespassed
at his private residence early in the morning and late at night in order to conduct
surveillance on Ruzicka. Local 1 argues Ruzicka failed to produce direct evidence
the investigators trespassed on Ruzicka’s property, and notes the private investigator
testified neither he nor his investigators went onto Ruzicka’s property when
conducting surveillance. Thus, Local 1 contends the district court correctly granted
judgment as a matter of law on this claim.
In Missouri, a person’s “right of privacy is legally protected, and violation of
such right can under given circumstances provide an entitlement to relief.” Sofka v.
Thal, 662 S.W.2d 502, 509 (Mo. 1983). The general tort of invasion of privacy
actually describes four distinct torts under Missouri law: “(1) unreasonable intrusion
upon the seclusion of another; or (2) appropriation of the other’s name or likeness;
or (3) unreasonable publicity given to the other’s private life; or (4) publicity that
unreasonably places the other in a false light before the public.” Id. at 510 (citing
Restatement (Second) of Torts § 652A (1977)). Ruzicka’s invasion of privacy claim
invokes the first tort–unreasonable intrusion upon the seclusion of another.
4
We also question whether Ruzicka Electric proved Cousin’s or Hepburn’s
statements actually were false, which is required to prove defamation. Furthermore,
we see little evidence indicating Ruzicka Electric met the heightened actual malice
standard. Regardless, we need not rule on these issues after concluding Cousin and
Hepburn simply asserted their opinions regarding a non-union contractor at the heart
of a labor dispute.
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The Missouri Supreme Court defines unreasonable intrusion upon the seclusion
of another as follows:
One who intentionally intrudes, physically or otherwise upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.
Id. (quoting Restatement (Second) of Torts § 652B). Thus, “[t]o make a submissible
case of intrusion upon seclusion, plaintiff must prove three elements: (1) the existence
of a secret and private subject matter; (2) a right possessed by plaintiff to keep that
subject matter private; and (3) the obtaining of information about that subject matter
by defendant through some method objectionable to the reasonable” person.
Corcoran v. Sw. Bell Tel. Co., 572 S.W.2d 212, 215 (Mo. Ct. App. 1978). Whether
a defendant obtained information through a method objectionable to the reasonable
person is “ordinarily a question for the jury.” Sofka, 662 S.W.2d at 511.
We conclude Ruzicka easily established the first two elements of his invasion
of privacy claim. Ruzicka testified he built his home for privacy and seclusion, and
his property was set off from the public and was lined with 100 feet of trees. Ruzicka
even posted no trespassing signs. Indeed, Missouri protects Ruzicka’s personal
residence from criminal trespass. See Mo. Rev. Stat. § 569.140. There can be no
doubt Ruzicka’s home is “a secret and private subject matter” that Ruzicka has a right
to keep private. See Engman v. Sw. Bell Tel. Co., 591 S.W.2d 78, 81 (Mo. Ct. App.
1979) (holding “[t]he existence of the [plaintiffs’] apartment and the right of the
[plaintiffs] to keep that place of abode private satisfies the first two elements” of an
invasion of privacy claim).
Thus, the critical issue is whether Ruzicka produced sufficient evidence for a
reasonable jury to find Local 1’s investigators obtained information about Ruzicka’s
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home “through some method objectionable to the reasonable” person. We conclude
he has. Ruzicka testified his property’s layout precluded anyone from viewing the
home from public places. He specifically explained it is impossible to see from
public property whether the lights in his home were on or off, noting a person would
have to be on his property to make those determinations. If Ruzicka’s testimony and
evidence is believed, a reasonable jury could conclude Local 1’s investigators
trespassed on Ruzicka’s private property to conduct surveillance of him and his
family. We believe a reasonable person may object to strangers entering his posted
private property to record when he sleeps and awakes inside his home, and may
consider such as highly offensive. Following the Missouri Supreme Court’s
admonition, we believe the third element presents a jury question. Because Ruzicka
presented sufficient evidence on his invasion of privacy claim to present the claim to
a jury, we reverse the district court’s grant of judgment as a matter of law to Local 1,
and remand the claim for a new trial.
D. Hilton Project
Ruzicka Electric claims the district court abused its discretion by not allowing
Ruzicka Electric to present its claim that Local 1’s conduct at the Hilton project
violated section 303 of the LMRA. We disagree. After scouring Ruzicka Electric’s
section 303 allegations in its complaint, we see no hint Ruzicka Electric claimed
Local 1 violated section 303 by its conduct at the Hilton site. Ruzicka Electric does
not discuss, mention or complain about Local 1’s conduct at the Hilton site. In
contrast, Ruzicka Electric specifically referenced the Webster project, the School
District project, and the Lindenwood project, leaving no doubt what projects were at
the heart of this case. Before trial, Ruzicka Electric never sought to amend its
specific and detailed complaint alleging three labor law violations, even though it
voluntarily dismissed its section 303 claim involving the Webster project. We
conclude the district court did not abuse its discretion by rejecting Ruzicka Electric’s
bid to present a labor law claim regarding the Hilton project. See Kinkead v. Sw. Bell
Tel. Co., 49 F.3d 454, 457 (8th Cir. 1995) (holding the district court did not abuse its
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discretion in denying a motion to amend the complaint to add new claims when the
motion came two years after the filing of the complaint).
E. Evidentiary Rulings
Finally, Ruzicka Electric makes a brief and cursory argument that the district
court erroneously admitted Local 1’s evidence pertaining to Ruzicka Electric’s
administrative matters before the NLRB and the Missouri Department of Labor and
Industrial Relations. Because Local 1 offered this evidence in response to
contentions made by Ruzicka Electric, we conclude the district court did not abuse
its discretion by allowing Local 1 to present this evidence to the jury.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s grant of judgment as
a matter of law to Local 1 on Ruzicka Electric’s section 303 claims involving the
Lindenwood and School District projects, and on Ruzicka’s invasion of privacy
claim. We remand those claims to the district court for a new trial. We affirm the
district court in all other respects.
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