International Brotherhood of Teamsters, AFL-CIO, and Teamsters Local Union 657, Appellees

Overnite Transportation Company appeals the trial court's summary judgment denying its claim for tortious interference with business contracts and relationships against appellees International Brotherhood of Teamsters, AFL-CIO, and Teamsters Local Union 657. Overnite presents two issues on appeal. We reverse the trial court's judgment.

Overnite sued the appellees for defamation and tortious interference arising from the appellees' efforts to organize its employees. Overnite alleged that as part of a campaign to induce its employees to join the Teamsters and to designate a local labor union affiliated with the Teamsters as their collective bargaining representative, the appellees circulated a defamatory flier to Overnite's customers in Texas. According to Overnite, the flier falsely stated that the National Labor Relations Board had found Overnite guilty of hundreds of labor law violations, including discrimination, intimidation, and retaliation against workers. Overnite alleged that publishing the defamatory flier to its customers injured its business relationships and contracts.

Both appellees moved for summary judgment on the tortious interference claim, asserting that their acts were justified and that the National Labor Relations Act preempted Overnite's claim. The trial court granted the motions without stating its ground and severed the tortious interference claim, making the partial summary judgment final for appeal.

As movants relying on the defenses of justification and preemption, the appellees assumed the burden to conclusively prove all essential elements of each defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). On appeal, we must consider as true all evidence favorable to Overnite and indulge every reasonable inference and resolve any doubt in Overnite's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Because the court rendered a general summary judgment, Overnite must show on appeal that the appellees established neither ground as a matter of law. Thomson v. Norton, 604 S.W.2d 473, 477 (Tex. Civ. App.--Dallas 1980, no writ).

In its first issue, Overnite argues that because a fact question remains on whether the appellees had a good faith claim to a colorable legal right, the court erred in rendering summary judgment on its tortious interference claim. The appellees asserted in their summary judgment motions that they had a federally protected right to engage in the conduct forming the basis of Overnite's claim.

A defendant sued for tortious interference with contract can prevail by establishing the affirmative defense of justification. Texas Beef & Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996). The justification defense is based on the exercise of either (1) one's own legal rights or (2) a good-faith claim to a colorable legal right, even though that claim ultimately proves to be mistaken. Id. at 211. But methods tortious in themselves are unjustified, and liability is appropriately imposed on a defendant who invades another's contract rights using violence, threats and intimidation, defamation, misrepresentation, unfair competition, or bribery. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000). In addition, legal malice negates the justification defense. Texas Beef & Cattle Co., 921 S.W.2d at 210. Overnite pleaded here that the appellees published the defamatory flier maliciously, so as to interfere with Overnite's contracts and business relationships wrongfully and without justification.

Both appellees admitted in their summary judgment motions, that for the purpose of the motions only, certain allegations of Overnite's petition were true. Specifically, the appellees admitted:

The [appellees], in publishing the defamatory Flier to Overnite customers, have wrongfully and without justification interfered with these contracts and Overnite's business relationships with its customers. Moreover, [the appellees] published the defamatory Flier to Overnite's customers with the specific intent of wrongfully inducing the customers to breach their contracts with Overnite and to cease using Overnite's services.

Despite a duty to Overnite to not tortiously interfere with Overnite's business contracts and relationships, [the appellees] maliciously and intentionally published the Flier for the purpose of wrongfully injuring Overnite's business.

(Parenthetical information omitted.) By admitting that the flier was defamatory, that they published it maliciously, that they interfered wrongfully and without justification, and that their purpose was to wrongfully induce Overnite's customers to breach their contracts, the appellees failed to establish conclusively their defense of justification. We sustain Overnite's first issue.

Overnite contends in its second issue that the trial court erred by granting summary judgment on the ground of preemption. The Supreme Court has stated the general rule for deciding when the National Labor Relations Act preempts a state claim: "When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). ⁽¹⁾ Courts applying Garmon examine separately the arguably protected nature of the activity under section 7 and the arguably prohibited nature under section 8. E.g., Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 190 (1978). In moving for summary judgment based on preemption, the appellees presented a two-part argument; they reasoned first that a union's peaceful persuasion of an employer's customers is protected by federal labor law, and second, that Overnite's tortious interference claim, based on peaceful persuasion, is preempted. We determine that the ground of preemption, as the appellees have presented it, is legally insufficient to support the summary judgment.

First, the appellees' assertion in their motions that Overnite's claim is preempted because it is based on the appellees' peaceful persuasion of Overnite's customers is too broad. The appellees failed to tailor their ground to Overnite's specific allegation that they tried to persuade by distributing defamatory fliers. To obtain summary judgment, the appellees were required to show that handbilling based on defamatory statements is protected. To ask the trial court to determine whether peaceful handbilling during a labor dispute is federally protected would not resolve the factual contention pleaded by Overnite. Because the appellees' ground failed to meet Overnite's claim as pleaded, their ground cannot support the summary judgment. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex. 1976).

Second, the appellees based their claim of preemption on the "arguably protected," rather than the "arguably prohibited," prong of Garmon. The "arguably protected" prong corresponds to section 157 of the United States Code, which addresses the rights of employees to join labor organizations and participate in organized activities. See 29 U.S.C.A. § 157 (West 1998). Yet the cases the appellees rely on analyze, not whether union activities are protected under section 157, but whether certain labor union activities are prohibited under section 158. E.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 588 (1988); George v. National Ass'n of Letter Carriers, 185 F.3d 380, 392 (5th Cir. 1999); cert. denied, 528 U.S. 1156 (2000). While the considerations justifying preemption under each prong overlap, the prongs differ in significant respects and merit separate analyses. Sears, Roebuck & Co., 436 U.S. at 190. By failing to articulate a cogent legal basis for preemption, the appellees have not carried their burden to show that they are entitled to judgment on that ground as a matter of law. We therefore sustain Overnite's second issue.

Because the appellees failed to establish conclusively their right to prevail based on either justification or preemption, we reverse the trial court's summary judgment and remand the cause for further proceedings.

Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Reversed and Remanded

Filed: March 29, 2001

Do Not Publish

1. Sections 7 and 8 of the National Labor Relations Act are codified as sections 157 and 158 respectively of Title 29 of the United States Code. See Labor Management Relations Act, 1947, 29 U.S.C.A. §§ 157, 158 (West 1998). Section 157 of the Act confers rights on employees regarding labor organizations, while section 158 describes unfair labor practices by both employers and labor organizations. Id.

ds in its second issue that the trial court erred by granting summary judgment on the ground of preemption. The Supreme Court has stated the general rule for deciding when the National Labor Relations Act preempts a state claim: "When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). ⁽¹⁾ Courts applying Garmon examine separately the arguably protected nature of the activity under section 7 and the arguably prohibited nature under section 8. E.g., Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 190 (1978). In moving for summary judgment based on preemption, the appellees presented a two-part argument; they reasoned first that a union's peaceful persuasion of an employer's customers is protected by federal labor law, and second, that Overnite's tortious interference claim, based on peaceful persuasion, is preempted. We determine that the ground of preemption, as the appellees have presented it, is legally insufficient to support the summary judgment.

First, the appellees' assertion in their motions that Overnite's claim is preempted because it is based on the appellees' peaceful persuasion of Overnite's customers is too broad. The appellees failed to tailor their ground to Overnite's specific allegation that they tried to persuade by distributing defamatory fliers. To obtain summary judgment, the appellees were required to show that handbilling based on defamatory statements is protected. To ask the trial court to determine whether peaceful handbilling during a labor dispute is federally protected would not resolve the factual contention pleaded by Overnite. Because the appellees' ground failed to meet Overnite's claim as pleaded, their ground cannot support the summary judgment. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex. 1976).

Second, the appellees based their claim of preemption on the "arguably protected," rather than the "arguably prohibited," prong of Garmon. The "arguably protected" prong corresponds to section 157 of the United States Code, which addresses the rights of employees to join labor organizations and participate in organized activities. See 29 U.S.C.A. § 157 (West 1998). Yet the cases the appellees rely on analyze, not whether union activities are protected under sectio