March 3, 2010
CFM ASSOCIATES, INC. AND JEFFREY MARKO, PLAINTIFFS-APPELLANTS,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL NO. 269, A/K/A IBEW LOCAL 269, CHARLES L. MARCIANTE, DEFENDANTS-RESPONDENTS, AND WACHOVIA CORPORATION AND WACHOVIA BANK, N.A. (AFFILIATE AND/OR SUBSIDIARY OF WACHOVIA CORPORATION), DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3631-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 19, 2009
Before Judges Lisa, Baxter and Alvarez.
Plaintiffs, CFM Associates, Inc. (CFM) and its principal, Jeffrey Marko, filed a two-count complaint against defendants International Brotherhood of Electrical Workers Local Union 269 (Local 269) and its business manager, Charles L. Marciante, alleging (1) tortious interference with prospective economic advantage arising out of its relationship with Wachovia Bank, and (2) unfair labor practices under the National Labor Relations Act (NLRA) and the Labor Management Relations Act (LMRA).*fn1 After discovery was completed, defendants' summary judgment motion was granted, and an order was entered dismissing the complaint.
Plaintiffs appeal from that order. They argue (1) the court mistakenly exercised its discretion in hearing defendants' untimely summary judgment motion, (2) the court erred in determining that it lacked jurisdiction, (3) the court erred in dismissing its secondary boycott claim under federal labor law, (4) the court erred in determining that their state law claims were preempted under the NLRA or LMRA, and (5) their state law
claims were meritorious and should have survived summary judgment.
The first argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). With respect to the second argument, we disregard any error the trial court might have made regarding lack of jurisdiction and analyze the issues under a de novo standard of review. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We reject plaintiffs' remaining arguments and affirm.
Local 269 maintained a variety of benefit funds for its members, including its Annuity Fund, which is overseen and controlled by a Board of Trustees. Local 269 deposited this fund, which was very substantial, with Wachovia Bank, which served as both the administrator and investment company for the fund from about 2001 or 2002 until May 15, 2007. Local 269 also maintained other accounts with Wachovia Bank.
Wachovia Bank operates facilities throughout New Jersey. It uses general contractors for its construction, repair and renovation needs. It apparently had an unwritten policy of utilizing union labor when such activities occurred within a union's geographic jurisdiction. This policy was a selling point for Local 269 in choosing Wachovia to manage the Annuity Fund, and the union relied upon Wachovia's representations in selecting Wachovia.
CFM is a general contractor and project management company. Wachovia began assigning work projects to CFM in or about 2000. Beginning in 2003, Wachovia began a practice of having contractors regularly performing work for it sign a Standard Form of Agreement (SFA), which did not provide for specific awards of work, but controlled the terms and conditions in the event a project was assigned to that contractor. The SFAs required contractors to provide Wachovia with a list of proposed subcontractors for Wachovia's approval. CFM signed an SFA on August 11, 2003. In the ensuing years, Wachovia became CFM's major source of business, accounting for seventy-five to eighty percent of CFM's revenues.
Despite Wachovia's preference for union labor and the SFA's provision requiring approval of subcontractors, CFM used nonunion labor on several Wachovia projects. In 2003, CFM used nonunion carpenters on a Wachovia project. When a business agent from a carpenter's union reported this to a Wachovia project manager, that individual told Marko to use union labor on projects going forward. In June 2005, CFM was working on a project in Lawrenceville, which is within Local 269's jurisdiction. Marciante observed that Storm Electric, a nonunion contractor, was working on the job. Storm Electric had been hired without CFM's knowledge by CCM, a subcontractor of CFM's on the project. Marciante informed Wachovia, which in turn contacted Marko and reminded him again to use union subcontractors.
In July 2006, CFM was performing work at a Wachovia branch in Hopewell, also within Local 269's jurisdiction. CFM had employed a subcontractor which in turn hired Storm Electric. This was brought to Wachovia's attention by Local 269. Wachovia contacted Marko, who said he would rectify the situation. Marko then contacted Marciante, informing him of his concern that Wachovia would cease giving him projects. Marciante replied "[t]he wheels are in motion, I'm not going to stop it," by which Marciante was "[r]eferring to what Jeff Marko said, they are going to take me off the preferred bidder list." However, Marciante denied asking Wachovia to terminate its relationship with CFM.
Despite Marciante's denial of pressuring Wachovia to terminate its relationship with CFM, Marko claimed that in two telephone conversations Marciante had indicated otherwise. In a call in 2005, Marciante allegedly tried to pressure Marko into signing a collective bargaining agreement (CBA) with Local 269, stating that "[t]he Union has a lot of money with Wachovia and they... will do what we tell them to do." Marko further claimed that in a call on August 3, 2006 Marciante stated that Local 269 had "a lot of money with Wachovia and they will either fire you, or we... will pull all our... money out [of] there."
Wachovia claimed it had more general concerns about CFM's performance, unrelated to any union issues. According to Wachovia Senior Vice President of Corporate Real Estate Robert F. Colletti, CFM's lack of supervision of its job sites and the work of its subcontractors was very disconcerting to Wachovia. This inadequate oversight and consequential failure to provide satisfactory reports of job status concerned Wachovia because, among other things, it led to CFM's inadvertent use of nonunion labor. Colletti was particularly embarrassed about CFM's use of nonunion labor. Unions were customers of Wachovia and Colletti "valued Wachovia's business relationship with its customers, including its business relationship with [Local 269]."
Colletti made the decision to cease using CFM. He claimed the decision was based on Wachovia's concerns about CFM's poor supervision and reliability, and was unrelated to union issues or any possibility that the union would take its business elsewhere. For summary judgment purposes, applying the Brill*fn2 standard, we accept the record evidence demonstrating that, despite Colletti's purported reason for dismissing CFM, the decision was made, at least in part, in response to union pressure.
Indeed, during the summer of 2006, the Board of Trustees of the Annuity Fund decided to re-bid for a new administrator. It did so primarily because it was seeking better rates. After presentations by various companies, the Board selected New York Life as its new administrator and removed the account from Wachovia.
In granting defendants' summary judgment motion, the court held that the state law claim was preempted by federal labor law and that plaintiffs could not make out a claim of unfair labor practices. Noting that preemption applies "if a cause of action implicates a protected concerted activity under [§] 7 of the [NLRA] or conduct that would be prohibited as an unfair labor practice under [§] 8 of the [NLRA]," the court supported its conclusion by observing that Marciante's alleged vendetta against CFM and Marko "would likely constitute a secondary boycott under the [NLRA]." The court acknowledged that exceptions to the preemption doctrine exist "where behavior to be regulated by the state law is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling," citing Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed. 2d 798 (1983). However, the court explained that such exceptions are "narrowly applied with courts [finding] deeply rooted local interests [only] where the conduct at issue is violent... or an intentional tort involving physical or personal injury is committed." Finding that no such conduct had occurred in this case, the court granted defendants' motion for summary judgment.
We first consider whether the trial court erred in granting summary judgment dismissing plaintiffs' secondary boycott claim under § 8 of the NLRA and § 303 of the LMRA by finding that defendants' conduct was not threatening, coercive or restraining.
Unions may attempt to influence an employer by exerting pressure on an entity that is engaged in business with the employer. The entity, known as a "secondary employer," then puts pressure on the "primary" employer to succumb to the union's objectives. Such "secondary boycotts" are regulated under § 8(b)(4)(ii) of the NLRA, 29 U.S.C.A. § 158(b)(4)(ii).*fn3
Violations of the NLRA's provision on secondary boycotts give rise to a claim for damages under § 303 of the LMRA, 29 U.S.C.A § 187.*fn4 In the context of this case, CFM is the primary employer, and Wachovia is the secondary employer.
Although secondary activities are not completely banned by the NLRA, unions may not use certain methods, including "threatening, coercing, or restraining the secondary employer." Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1249 (3rd Cir. 1991). Coercion includes economic pressure used against the secondary. Allentown Racquetball & Health Club, Inc. v. Bldg. & Constr. Trades Council, 525 F. Supp. 156 (E.D. Pa. 1981). Such prohibitions are designed to protect secondaries from pressures stemming from disputes in which they are not involved, while allowing unions to have a certain degree of freedom to pressure employers. Anderson v. Int'l Bhd. of Elec. Workers, 422 F. Supp. 1379, 1384 (W.D. Pa. 1976).
In NLRB v. Retail Store Employees Union, 447 U.S. 607, 100 S.Ct. 2372, 65 L.Ed. 2d 377 (1980), the Court held that picketing urging a boycott of a secondary with the goal of causing the secondary to sever relations with the primary was coercive and thus prohibited under § 8(b)(4). However, "picketing is qualitatively 'different from other modes of communication,'" Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 311 n.17, 99 S.Ct. 2301, 2315 n.17, 60 L.Ed. 2d 895, 914 n.17 (1979) (quoting Hughes v. Superior Court, 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985, 992 (1950)), and "a union is free to approach an employer to persuade him to engage in a boycott, so long as it refrains from the specifically prohibited means of coercion through inducement of employees." United Bhd. of Carpenters & Joiners v. NLRB, 357 U.S. 93, 99, 78 S.Ct. 1011, 1016, 2 L.Ed. 2d 1186, 1194 (1958). Thus, a union may peacefully communicate the nature of a labor dispute to a third party without violating the NLRA. See NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 63-64, 84 S.Ct. 1063, 1066-67, 12 L.Ed. 2d 129, 133-34 (1964) (holding that peaceful handbilling of customers of a secondary encouraging a boycott of a primary employer was permissible despite economic impact on the secondary); Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 259-60, 84 S.Ct. 1253, 1258, 12 L.Ed. 2d 280, 286 (1964) (finding that a request that a third party cease doing business with a primary employer did not violate federal law).
Plaintiffs argue here that the conduct of Local 269 is analogous to secondary conduct found to violate the NLRA in Taylor Milk Co. v. International Brotherhood of Teamsters, 988 F. Supp. 881 (W.D. Pa. 1997), rev'd, 248 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 1055, 122 S.Ct. 646, 151 L.Ed. 2d 564 (2001), and NLRB v. Metropolitan Regional Council of Carpenters, No. 07-4679 (3d Cir. March 11, 2009). In Taylor, the court observed that the union unlawfully coerced a neutral party, Borden, to cease doing business with Taylor, not because of any primary dispute between Borden and the IBT, but because of a secondary dispute between the IBT and Taylor. To accomplish this, plaintiff alleges that the IBT sabotaged the Borden-Taylor negotiations by taking them over and conducting them in a manner calculated to doom any new collective bargaining agreement.
[Taylor, supra, 988 F. Supp. at 885.]
In finding that such actions were misconduct, the court reaffirmed the principle that mere secondary conduct is insufficient, stating that "[a]n activity, though perfectly lawful in and of itself, can violate § 8(b)(4)(ii) if it is done for an unlawful purpose, so long as the activity is coercive rather than merely persuasive." Ibid. (citing Limbach, 949 F.2d at 1255).
In Metropolitan, the court found a violation of § 8 of the NLRA where Jones [the union representative] told Strine [the neutral's representative] that he believed Adams-Bickel [the primary employer] was using unfair contractors, and "[i]f that's the way it's going to go the building is going to have a problem." When Strine asked what he meant, Jones explained that, "a problem" meant "[p]rotests, work stoppages and problems with deliveries." [Metropolitan, supra, slip op. at 3 (citations omitted).]
Moreover, the record showed that instances of picketing and disruption had actually occurred:
On January 3, 2007, American Millwork attempted delivery of their products, but two men stationed themselves outside the entrance to the brewery with picket signs stating, "American Millwork is unfair to local... Carpenter's Council." As a result, all other employees refused to cross the picket line and the truck had to leave without being unloaded. Successful delivery was finally made on January 11, 2007, but only after American Millwork threatened PA Fly with breach of contract. [Id. at 4 (citations omitted).]
As the court held in Metropolitan, such misconduct constitutes a clear violation of § 8.
Without further elaboration, plaintiffs state that "[t]he record below clearly demonstrates that [d]efendants' actions, at best, fall within the same improper or illegitimate realm as in Taylor and Metropolitan." We first note that Taylor was subsequently reversed and Metropolitan is an unpublished opinion. Additionally, despite plaintiffs' conclusory assertion, these cases illustrate examples of clearly coercive and disruptive conduct that the NLRA was designed to prevent, and such behavior is easily distinguishable from what occurred in this case. Here there was no evidence of picketing, violence, or threats to engage in such action.
At most, there was a peaceful business discussion between Wachovia and Local 269, in which the union expressed its dissatisfaction with Wachovia's compliance with its union labor policy and its intent to take its business elsewhere. Such communication of information and civil pleas to a secondary to cease its relations with a primary employer do not compare to the type of conduct prohibited by the labor laws and held to be impermissible by the case law. Unions are free to "persuade, induce or encourage" a secondary. See BE & K Constr. Co. v. United Bhd. of Carpenters & Joiners, 90 F.3d 1318, 1330 (8th Cir. 1996).
Economic pressure is permissible provided it does not cross the line into coercive territory. A threat to take funds to another bank is within the rights of an entity and does not constitute the kind of behavior held to be violative in the case law. Accepting the facts in the light most favorable to plaintiffs, this was the sum and substance of defendants' actions. Moreover, given that words such as "threat" and "coercion" are "nonspecific, indeed vague," these concepts should be interpreted with "caution" and not be given a "broad sweep." NLRB v. Drivers, Chauffeurs, Helpers, 362 U.S. 274, 290, 80 S.Ct. 706, 715, 4 L.Ed. 2d 710, 721 (1960). We are satisfied that the kind of economic pressure allegedly exerted here is not violative of the NLRA. Accordingly, plaintiffs' secondary boycott claim was properly dismissed.
Plaintiffs argue that the trial court erred in determining that their state law claims were preempted under the NLRA or LMRA. We do not agree.
Principles of federal preemption of state law under the Supremacy Clause of the Constitution apply to federal labor law. The purpose of such preemption principles is to prevent "a danger of conflict between power asserted by Congress and requirements imposed by state law." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed. 2d 775, 782 (1959). Federal labor regulation seeks to create "a complex and interrelated federal scheme of law, remedy, and administration." Id. at 243, 79 S.Ct. at 778, 3 L.Ed. 2d at 782. To permit states to regulate conduct covered by the federal scheme "would create potential frustration of national purposes." Id. at 244, 79 S.Ct. at 779, 3 L.Ed. 2d at 783.
Therefore, "[w]hen the exercise of state power over a particular area of activity threaten[s] interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the States from acting." Id. at 243, 79 S.Ct. at 778, 3 L.Ed. 2d at 782. Thus "[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7*fn5 of the [NLRA], or constitute an unfair labor practice under § 8,... state jurisdiction must yield." Id. at 244, 79 S.Ct. at 779, 3 L.Ed. 2d at 782. Notably, it is of no consequence "whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations." Ibid.
However, federal labor law preemption goes beyond mere "conflict" preemption. As the Court held in Garmon, in order to avert "state interference with national policy," preemption applies even "[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA]." Id. at 245, 79 S.Ct. at 780, 3 L.Ed. 2d at 783 (emphasis added). Moreover, a second preemption doctrine also covers "state regulation and state-law causes of action concerning conduct that Congress intended to be unregulated,... conduct that was to remain a part of the self-help remedies left to the combatants in labor disputes." Belknap, supra, 463 U.S. at 499, 103 S.Ct. at 3177, 77 L.Ed. 2d at 807 (citing Int'l Ass'n of Machs. & Aerospace Workers v. Wis. Employment Relations Comm'n, 427 U.S. 132, 140, 147-48, 96 S.Ct. 2548, 2553, 2556-57, 49 L.Ed. 2d 396, 403, 407-08 (1976)). When preemption applies, "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." Garmon, supra, 359 U.S. at 245, 79 S.Ct. at 780, 3 L.Ed. 2d at 783.
Plaintiffs argue here that the union's actions should not be considered "arguably" subject to the NLRA. They claim that Marciante's actions in allegedly pressuring Wachovia were simply part of a personal vendetta Marciante had against Marko and CFM, and were designed merely to hurt these parties, rather than to further union interests. Plaintiffs also contend that the only connection the alleged actions had to a labor dispute was to the failure of CFM to sign a CBA with the union, an event plaintiffs claim was too distant from the present events, having occurred in 2005.
We find these arguments unpersuasive. The record clearly demonstrates that whatever conduct was undertaken by Marciante and Local 269 was prompted by the recent instances of CFM's use of non-union labor subsequent to CFM's failure to sign a CBA. Although Marciante may have harbored personal feelings of ill will toward Marko and CFM, his primary motivation in communicating with Wachovia was to ensure that the bank used contractors that used union labor, and dispensed with ones that did not.
This kind of conduct is clear secondary activity in the context of a labor dispute. Although the actions of Marciante and the union were permissible under the NLRA, as we have discussed, the behavior was at least "arguably" subject to the NLRA, as the act and the case law interpreting it spell out what kind of secondary activity is allowed in labor disputes. Therefore, preemption is applicable in this case. See Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed. 2d 646 (1963) (holding that an action for tortious interference with contractual relations was preempted because it was based on conduct that was arguably covered by the NLRA).
There are exceptions to the general rule of preemption of state law claims in such cases. Preemption does not apply "where the activity regulated was a merely peripheral concern of [federal law]," or "where the regulated conduct touche[s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." Garmon, supra, 359 U.S. at 243-44, 79 S.Ct. at 779, 3 L.Ed. 2d at 782. Thus "state interests in regulating the conduct in question" are balanced against "the potential for interference with the federal regulatory scheme," Farmer v. United Bhd. of Carpenters & Joiners, 430 U.S. 290, 297, 97 S.Ct. 1056, 1062, 51 L.Ed. 2d 338, 348 (1977), and "the risk that the State will sanction conduct that the Act protects." Belknap, supra, 463 U.S. at 499, 103 S.Ct. at 3177, 77 L.Ed. 2d at 807 (citing Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 205, 98 S.Ct. 1745, 1761, 56 L.Ed. 2d 209, 230 (1978)).
The exceptions for "peripheral concerns" and "deeply rooted local interests" are applied somewhat narrowly. In Belknap, supra, 463 U.S. at 533 n.7, 103 S.Ct. at 3195 n.7, 77 L.Ed. 2d at 829 n.7, the Court noted that the exceptions applied to "malicious libel," as in Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed. 2d 582 (1966), and the intentional infliction of emotional distress brought about by conduct "so outrageous that 'no reasonable man in a civilized society should be expected to endure it.'" Farmer, supra, 430 U.S. at 302, 97 S.Ct. at 1064, 51 L.Ed. 2d at 351. See also Garmon, supra, 359 U.S. at 247, 79 S.Ct. at 781, 3 L.Ed. 2d at 784 (recognizing that the case law has permitted state jurisdiction where there was "conduct marked by violence and imminent threats to the public order").
Indeed, the court in In re Sewell, 690 F.2d 403, 408 (4th Cir. 1982) reasoned that the exceptions were narrow enough that they did not include a state law claim for tortious interference with contracts. The court held that where the conduct at issue was subject to regulation by federal labor law, Garmon preemption applied. Ibid. A similar result was reached in A & D Supermarkets, Inc. v. United Food & Commercial Workers, 732 F. Supp. 770, 779 (N.D. Ohio 1989), where the court concluded that claims of tortious interference with business relations do not qualify for the exception for "deeply rooted local interests," and that "the facts pertaining to a tortious interference claim generally are closely related to the labor dispute involved in the case."
This case involved no accusations of violence, threats, or attacks on character. Defendants' actions fall squarely within the confines of a labor dispute and merely involved a potential claim for tortious interference with business relations. Although plaintiffs allege that Marciante was motivated by a personal vendetta against CFM and Marko, and was attempting to hurt these parties rather than simply further the interests of the union, his actions do not rise to the level of egregiousness that would obviate preemption. Additionally, these actions were taken primarily in the context of a labor dispute, despite any ulterior motives, and involved conduct commonplace in such situations and which is permissible under the NLRA. Also, the alleged ulterior motive stemmed from CFM's and Marko's failure to sign a CBA, thus attaching such motives to the labor dispute.
Plaintiffs argue that the state interest implicated here is to protect the right of its citizens to earn a living and to provide for redress against anyone who wrongfully interferes with this right. Although this is a legitimate state interest, it is not compelling enough to remove it from the confines of a labor dispute. This is not a case in which "the risk of conflict with the general congressional policy favoring expert, centralized administration, and remedial action is tolerably slight." Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 1925, 29 L.Ed. 2d 473, 491 (1971). Therefore, the exceptions to preemption do not apply. Accordingly, plaintiffs' state law claim is preempted and was properly dismissed.
Finally, although not necessary in light of our preemption determination, we consider plaintiffs' argument that they made out a prima facie case of tortious interference with prospective economic advantage sufficient to withstand summary judgment. Even if this state law claim were not preempted, it was properly dismissed on an alternative basis, namely that plaintiffs failed to present prima facie evidence of one of the elements of the cause of action.
The action of tortious interference with a prospective business relation is designed to protect the right "to pursue one's business, calling or occupation free from undue interference or molestation." Louis Kamm, Inc. v. Flink, 113 N.J.L. 582, 586 (E. & A. 1934). The tort provides a cause of action for "[t]he luring away, by devious, improper and unrighteous means, of the customer of another." Ibid. Such conduct is actionable, despite the lack of an enforceable contract, as "[t]he law protects also a [person's] interest in reasonable expectations of economic advantage." Harris v. Perl, 41 N.J. 455, 462 (1964).
In order to establish a cause of action for tortious interference with a prospective business relation, a plaintiff must first show that some protectable right exists, which need not be an enforceable contract, but must at least consist of a "reasonable expectation of economic advantage." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751 (1989) (citing Harris, supra, 41 N.J. at 462). Second, the plaintiff must demonstrate that the interference was intentional and done with malice, which in this context means without justification or excuse, rather than with ill will. Ibid. (citing Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 563 (1955)). Third, the plaintiff must show that the interference caused a loss of prospective gain, in the sense that "'if there had been no interference[,] there was a reasonable probability that the victim of the interference would have received the anticipated economic benefits.'" Ibid. (quoting Leslie Blau Co. v. Alfieri, 157 N.J. Super. 173, 185-86 (App. Div.), certif. denied, Leslie Blau Co. v. Reitman, 77 N.J. 510 (1978)). Lastly, the plaintiff must show that the interference resulted in damages. Id. at 752 (citing Norwood Easthill Assocs. v. Norwood Easthill Watch, 222 N.J. Super. 378, 384 (App. Div. 1988)).
We focus on the second element. Determining what precisely constitutes "malicious" conduct is difficult, as the concept is "somewhat amorphous," Printing Mart, supra, 116 N.J. at 756 (quoting Leslie Blau, supra, 157 N.J. Super. at 204), and therefore the determination must be made "on a case-by-case basis." Ibid. (citing Myers v. Arcadio, Inc., 73 N.J. Super. 493, 500 (App. Div. 1962)). Acknowledging such inevitable generality, we said in Sustick v. Slatina, 48 N.J. Super. 134 (App. Div. 1957):
The essence of the cases in this field is that in adjudging whether what the defendant has done is actionable, [that is], not done in the exercise of an equal or superior right, the ultimate inquiry is whether the conduct was "both injurious and transgressive of generally accepted standards of common morality or of law." In other words, was the interference by defendant "sanctioned by the 'rules of the game.'" There can be no tighter test of liability in this area than that of the common conception of what is right and just dealing under the circumstances. [Id. at 144 (citations omitted).]
However, "merely providing truthful information to one of the contracting parties" is generally held not to constitute malicious conduct for purposes of tortious interference. East Penn Sanitation, Inc. v. Grinnell Haulers, Inc., 294 N.J. Super. 158, 180 (App. Div. 1996) (citing Restatement (Second) of Torts § 772(a) (1977)). In East Penn, we held that "[s]ince plaintiff did not have an approved solid waste registration statement or a certificate of public convenience and necessity, [the defendants'] actions in informing the [Sussex County Municipal Utilities Authority] and the [Sussex County Board of Freeholders] of this fact merely constituted the communication of 'truthful information.'" Id. at 181. Despite the fact that the defendants' actions "were undoubtedly motivated by economic self-interest," the court held that a finding of malice could not be made based on "the communication of truthful information which ultimately promotes the State's public policy." Ibid. This principle applies "even if the purpose is to interfere with an existing or prospective contractual relationship." C.R. Bard, Inc. v. Wordtronics Corp., 235 N.J. Super. 168, 173 (Law Div. 1989), quoted in East Penn, supra, 294 N.J. Super. at 180.
Despite citing much of this case law, plaintiffs fail to make any real argument as to why there was a genuine issue of material fact here, or why defendants were not entitled to a judgment as a matter of law. After reviewing the law on tortious interference, plaintiffs merely stated that "[t]he record below clearly established [p]laintiffs' entitlement to have their tortious interference claim against [d]efendants heard and determined on the merits by the trier of fact." However, plaintiffs fail to explain how the "malice" element of the claim was satisfied.
Viewing the evidence most favorably to plaintiffs, the "malice" element was not present. Local 269 had the right to decide which company to use as the administrator of its Annuity Fund for whatever reason it wished, and Wachovia's failure to keep its promise of using union labor was a reasonable motivation to change, particularly where the selection of Wachovia was based in part on this promise. Moreover, even if pressure was put on Wachovia to end its relationship with CFM solely to get back at CFM for its labor practices, the fact that Local 269 was merely choosing where to put its funds and communicating its concerns to its bank was hardly "'injurious and transgressive of generally accepted standards of common morality or of law,'" or a violation of "the rules of the game." Sustick, supra, 48 N.J. Super. at 144 (quoting DiCristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 255 (App. Div. 1957)).
Additionally, Local 269's actions could be seen as permissible as a mere reporting of truthful information. The union had witnessed CFM's use of non-union labor at Wachovia job sites, and was passing this information on to Wachovia, along with its related concerns and wishes. Such truthful communication is permissible, as in East Penn, even if the union's goal was to interfere with the relationship between Wachovia and CFM, and motivated by the economic self-interest of the union. East Penn, supra, 294 N.J. Super. at 181; C.R. Bard, supra, 235 N.J. Super. at 173.
Therefore, the "malice" element of tortious interference was not satisfied here regardless of the factual disputes as to whether the union exerted pressure on Wachovia or whether Wachovia made an independent decision to cease its relationship with CFM. Therefore, summary judgment was properly granted on the substantive merits of this claim.