H. W. Barss Co., Inc.

National Labor Relations Board - Board DecisionsOct 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 The pickets were subsequently withdrawn , but on May 23 , 1983, they appeared at Barss ' office on Boston Post Road carrying signs that read: HOWARD BARSS IS an officer of H. W .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.]