Circle Grp., L.L.C. v. Se. Carpenters Regional Council

• Decision Date: 28 December 2011
• Docket Number: No. 1:09–cv–3039–WSD.,1:09–cv–3039–WSD.
• Citation: 836 F.Supp.2d 1327
• Parties: The CIRCLE GROUP, L.L.C. and Joyce Laidler, Plaintiffs, v. The SOUTHEASTERN CARPENTERS REGIONAL COUNCIL, of the United Brotherhood of Carpenters and Joiners of America, Defendant.
• Court: U.S. District Court — Northern District of Georgia

836 F.Supp.2d 1327

The CIRCLE GROUP, L.L.C. and Joyce Laidler, Plaintiffs,

v.The SOUTHEASTERN CARPENTERS REGIONAL COUNCIL, of the United Brotherhood of Carpenters and Joiners of America, Defendant.

No. 1:09–cv–3039–WSD.

United States District Court,

N.D. Georgia,

Atlanta Division.

Dec. 28, 2011.

James W. Wimberly, Jr., Kathleen Jean Jennings, Rhonda Lynn Klein, Wimberly Lawson Steckel Schneider & Stine, Atlanta, GA, for Plaintiffs.

Tessa Addie–Lee Warren, Nakamura, Quinn & Walls, Weaver & Davies, L.L.P., Decatur, GA, Brian F. Quinn, Decarlo, Connor & Shanley, P.C., Washington, DC, Robert Moore Weaver, Quinn, Walls, Weaver & Davies, L.L.P., Birmingham, AL, for Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on The Southeastern Carpenters Regional Council, of the United Brotherhood of Carpenters and Joiners of America's (“Defendant” or “Union”) Motion for Summary Judgment [100], The Circle Group, L.L.C.'s (“Plaintiff” or “Circle Group”) Partial Motion for Summary Judgment as to Liability [101], Plaintiff's Objections to Certain Statements of Undisputed Facts and Declaration Statements [112], Defendant's Motion to Strike Plaintiff's Reply to Defendant's Response to the Plaintiff's Statement of Undisputed Material Facts [117], Plaintiff's Motion to File Substituted Appendix [119], and Defendant's Motion to Quash Subpoena to Produce Documents [127].¹

I. BACKGROUND²

The Southeastern Carpenters Regional Council, of the United Brotherhood of Carpenters and Joiners of America (“Union”) is a labor organization that operates in Atlanta, Georgia. (Pl.'s Response to Def.'s Statement of Undisputed Facts (“DSUMF”) ¶ 1). The Circle Group, L.L.C. (“Circle Group”), is a Georgia company engaged in interior construction, including drywall and acoustic ceilings. ( Id. ¶ 2).

In late 2003, the Union began an “area standards” campaign in Atlanta (the “Campaign”) to encourage the use of certain contractors and to increase the amount of union work relative to the Atlanta construction market. (Def.'s Response to Pl.'s Statement of Undisputed Material Facts (“PSUMF”) ¶¶ 3–5; DSUMF ¶ 3). “The Campaign is focused on commercial interior construction, specifically, privately owned high rise buildings.” (PSUMF ¶ 3). The Union's Director of Special Projects, James T. Gibbs, Jr. (“Gibbs”), was responsible for managing the area standards campaign and bannering, handbilling, and picketing activities. (PSUMF ¶ 2; DSUMF ¶¶ 11, 32).

The term area standards relates to the payment by employers in the construction industry of “ ‘area standards wages'; employer-funded family medical insurance; employer-funded retirement; employer-funded training program; and the proper tax classification of workers as employees, rather than 1099 independent contractors.” (PSUMF ¶ 14). Circle Group disagrees with the Union's claim that area standards have been established by negotiation between the Union and contractors operating in the area market. (DSUMF ¶ 4). Circle Group also disagrees with the Union's assertion that it fails to meet area standards, to the extent that term is defined, or does not offer paid time off, a retirement plan, or health insurance to its employees. ( Id. ¶¶ 4, 10, 14, 16–17, 19–20).

The Union bases its belief that Circle Group does not meet area standards on its own investigative efforts through discussions with Circle Group employees and reviews of pay stubs. ( Id. ¶¶ 13–14, 16–24).

A. The Area Standards Campaign

The Union asserts that the purpose of the area standards campaign is to publicize its “dispute with employers in the carpentry trade who do not pay area standards in an effort to either convince those employers to pay area standards, or convince end users of their services to use their management discretion not to do business with employers who do not pay area standards.” ( Id. ¶ 6). Circle Group alleges that the purpose of the campaign “is to pressure neutral parties to cease doing business with target non-union contractors, in this case Circle ....” ( Id. ¶ 6).

Circle Group employees are not members of the Union and the Union was never approached by Circle Group employees about trying to organize Circle Group. ( Id. ¶ 8).

One of the Union's admitted goals for the area standards campaign “is to increase the amount of union work relative to the market” by “exerting influence on ‘decision makers' to use contractors who meet area standards.” (PSUMF ¶¶ 4, 7). The Union maintains a list of “Certified Area Standards Contractors” (“Certified List”). ( Id. ¶ 18). Every contractor on the Certified List is a union contractor with a contract with Defendant. ( Id.). When the Union identifies construction projects using contractors it deems as not meeting its own self-defined “area standards,” it sends a letter entitled “Notice of Labor Dispute” (“Notice Letter”) to the employers, decision makers, and “end users” of labor connected to the project. (PSUMF ¶¶ 13, 36; DSUMF ¶ 25). Personnel who receive these Notice Letters may include “general contractors, project management teams, property owners and managers or even tenants, as well as people with a connection to those entities or employees of those entities.” (PSUMF ¶ 13; DSUMF ¶ 25). “The Union has told general contractors that as long as they use a target contractor, [such as Circle Group,] the Union will follow the general contractor and put pressure on them wherever they work.” (PSUMF ¶ 57).

B. Notice Letters

The Notice Letters, issued during the relevant periods of this action, request recipients of the letters to use their “managerial discretion to not allow Circle Group to perform any work on any of your projects unless and until it generally meets area standards for all of its carpentry craft workers.” ( Id. ¶ 14; Ex. 1 to Dep. of James T. Gibbs, Jr. (“Notice Letter”)). The Notice Letters state that complying with the request will “provide the greatest protection against your firm becoming publicly involved in this dispute through misunderstanding or error.” (Notice Letter). “All parties associated with projects where Circle Group is employed” will be impacted by the Union's “new lawful and aggressive public information campaign against Circle Group.” ( Id.). “That campaign includes highly visible lawful banner displays, demonstrations, and distribution of handbills at the jobsites and premises of property owners, developers, general contractors, and other firms involved with projects where Circle Group is employed.” ( Id.). Attached to the Notice Letters were a sample handbill, photograph of a large banner stating “Shame On [name of recipient's firm]” and the words “Labor Dispute,” a copy of the instructions for demonstrators, and a copy of the Certified List. ( Id.; DSUMF ¶ 26).

The sample handbill contains a picture of a rodent chewing on the American flag and explains the desire for Circle Group to meet area standards. (Notice Letter). The use of a rodent and references to rats in demonstrations is made because, according to the Union, a “rat” can be “someone using directly or indirectly a contractor that doesn't meet area standards.” (PSUMF ¶ 52). The sample handbill also contains text, in a smaller font than the main text, which states: “We are not urging any worker to refuse to work nor are we urging any supplier to refuse to deliver goods.” (Notice Letter).

The “Instructions for Demonstrators” attached to the Notice Letter state that demonstrators are not to interfere with persons entering or leaving the job; to stop demonstrating when Circle Group is not at the job site; and to contact designated Union personnel if anyone asks questions or asks them to move from a location. ( Id.). One of the purposes of sending Notice Letters with the Instructions to Demonstrators is to “let recipients know that they can expect to see picketing or other demonstrations at their property.” (PSUMF ¶ 25).

The Union would also contact and meet with “decision makers” and third parties about its labor dispute with Circle Group, ask them not to use contractors that did not meet area standards, and, in some circumstances, express the possibility of holding “demonstrations” at their locations regarding its labor dispute with Circle Group. ( Id. ¶¶ 32–35). “The Union has also told [third-party decision makers] that everything will be cleared up if the target contractor [, Circle Group in this case,] is removed from the job or begins to meet area standards.” ( Id. ¶ 58).

The Union subsequently changed the Notice Letters in 2009 and removed the language regarding “adversarial relationship,” and changed the language regarding demonstrations in 2010. ( Id. ¶¶ 22, 23).³

C. Handbilling, Bannering, and Picketing Activities

Circle Group maintains that the intent of any picketing activity associated with the area standards campaign is to be as disruptive as possible to third parties in the vicinity, while the Union asserts that picketing is designed to draw attention to its area standards campaign. ( Id. ¶ 29). Circle Group maintains that chants and demonstrations are directed at third parties and the general public, while the Union asserts that demonstrations and pickets, to include chants, “are done to generate awareness in the general public of the Council's area standards dispute.” ( Id. ¶¶ 53, 55).

The Union and Circle Group also disagree on whether the activities of the Union in holding up banners and passing out handbills qualifies as bannering and handbilling or if it is picketing. (DSUMF ¶¶ 27–28).⁴ The Union asserts that its activities in handing out flyers to the public in a public right of way is handbilling, and Circle Group characterizes it as picketing and disputes that the activities were conducted on public rights of way or property.⁵ ( Id. ¶ 28). Circle Group also disagrees with how the Union has characterized its picketing activities, the content of its signs and banners, and other demonstrations. ( Id. ¶¶ 27–30). Circle...