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Lowe Excavating Company v. International Union of Operating Engineers Local No. 150

January 11, 2002

LOWE EXCAVATING COMPANY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 150 AND ROBERT DARLING, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



Appeal from the Circuit Court of McHenry County. No. 88-CH-034 Honorable Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Released for publication April 1, 2002.

LOWE EXCAVATING COMPANY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 150 AND ROBERT DARLING, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS

Appeal from the Circuit Court of McHenry County. No. 88-CH-034 Honorable Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

PUBLISHED

 The following facts are taken from the record. Plaintiff, Lowe Excavating Company, is an Illinois corporation engaged in excavating and site preparation services since 1969. Marshall Lowe was the president of Lowe at the time of the incidents at issue. Defendant International Union of Operating Engineers Local No. 150 (the Union) is a labor organization doing business in McHenry County. Defendant Colin "Robert" Darling was a business agent employed by the Union at the time of the incidents at issue.

On February 15, 1988, the Union began picketing at a Lowe project site, known as Ballashire Hall, with signs stating:

"NOTICE TO THE PUBLIC LOWE EXCAVATING DOES NOT PAY THE PREVAILING WAGES AND ECONOMIC BENEFITS FOR OPERATING ENGINEERS WHICH ARE STANDARD IN THIS AREA OUR DISPUTE CONCERNS ONLY SUBSTANDARD WAGES AND BENEFITS PAID BY THIS COMPANY LOCAL 150

International Union of Operating Engineers, AFL-CIO"

On February 17, 1988, Lowe filed a complaint seeking a temporary restraining order (TRO), preliminary and permanent injunctions, and damages. The following day, the Union filed a petition for removal to the United States District Court, arguing that Lowe's claim seeking an injunctive relief was preempted by federal law. On June 10, 1988, the United States District Court for the Northern District of Illinois denied the Union's petition and remanded the case to the state trial court, stating that "Lowe's complaint does not on its face contain a federal claim."

On June 30, 1988, the trial court enjoined the Union from picketing Lowe in McHenry County until the court ruled on Lowe's request for a preliminary injunction. On August 11, 1988, the trial court dismissed Lowe's second amended complaint based on the Union's claim that the court lacked subject matter jurisdiction due to federal preemption. The court granted Lowe leave to file a third amended complaint.

On September 28, 1988, the Union resumed picketing. The following day, Lowe filed a third amended complaint seeking a temporary restraining order, preliminary and permanent injunctions, and damages. Lowe also filed a motion for a temporary restraining order, preliminary injunctions, and the reconsideration of the dismissal of the second amended complaint based on the lack of subject matter jurisdiction. The court again enjoined the Union from picketing Lowe until the court's ruling on Lowe's request for a preliminary injunction. On October 6, 1988, the Union filed a motion to dismiss this third amended complaint, again asserting that, based on federal preemption, the trial court lacked subject matter jurisdiction.

On October 11, 1988, the court partially granted Lowe's motion for a temporary restraining order enjoining the Union from "picketing or otherwise disseminating the fact that Lowe is non-union." The court also denied the Union's motion to dismiss Lowe's third amended complaint and denied Lowe's "request for preliminary injunctive relief relating to area standards, in reckless disregard for the truth," based on federal preemption grounds. Lowe filed an interlocutory appeal of this decision.

On March 3, 1989, this court reversed the trial court's decision and remanded the case for a hearing. Lowe Excavating Co. v. International Union of Operating Engineers Local No. 150, 180 Ill. App. 3d 39 (1989).

The trial on Lowe's third amended complaint began in April 2000. The four claims proceeding to trial against the Union and Colin Darling, as an individual, were count II, alleging tortious interference with contractual relationship; count IV, alleging tortious interference with prospective economic advantage; count V, alleging trade libel; and count VI, alleging negligent interference with contract.

At the trial, Darling testified that late in the summer or early in the fall of 1987 he spoke with two Lowe employees, Hartzell Zimmerman and Pasqual Gebbia. Zimmerman and Gebbia told Darling what they were making at the time and what benefits they received. Darling stated that the men showed him their pay stubs and that these were the only pay stubs Darling saw. However, during a deposition in 1994, Darling stated that he had not seen pay stubs. Darling explained at trial that his memory was better at trial in April 2000 than it was when he gave his deposition.

Darling also testified that in February 1988 the class one (top wage) under the Union's master collective bargaining agreement was $19.40 an hour to be increased to $20.10 an hour on June 1, 1988, and the class two wage was $18.85 an hour. These were the wages that were appropriate for the Ballashire Hall project. The contribution to various fringe benefit funds was $2.20 an hour. Also, the master agreement provided that no more than 1 apprentice was permitted on a job with less than 7 journeymen, 2 apprentices for between 7 and 13 journeymen, and 3 apprentices for between 13 and 22 journeymen.

In October 1987 the Union initiated efforts to unionize Lowe's employees. Marshall Lowe arranged for representatives of the Union to met with Lowe employees. At the meetings, the Union and Lowe presented the employees ...


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