Pepsi-Cola Co. v. R.I. Carpenters Dist. Council, Civ. A. No. 95-595ML.

• Decision Date: 24 April 1997
• Docket Number: Civ. A. No. 95-595ML.
• Citation: 962 F.Supp. 266
• Parties: PEPSI-COLA COMPANY v. RHODE ISLAND CARPENTERS DISTRICT COUNCIL.
• Court: U.S. District Court — District of Rhode Island

962 F.Supp. 266

PEPSI-COLA COMPANY v. RHODE ISLAND CARPENTERS DISTRICT COUNCIL.

Civ. A. No. 95-595ML.

United States District Court, D. Rhode Island.

April 24, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walter C. Hunter, Mark A. Pogue, Edwards & Angell, Providence, RI, Duane C. Aldrich, Atlanta, GA, Thomas H. Christopher, Daniel F. Piar, Kilpatrick Stockton, L.L.P., Atlanta, GA, for Plaintiff.

Marc Gursky, Renee Bushey, Providence, RI, for Defendant.

MEMORANDUM AND DECISION

LISI, District Judge.

This matter arose as a result of picketing conducted by the defendant, the Rhode Island Carpenters District Council, at a facility operated by the plaintiff, the Pepsi-Cola Company. The case was tried to the court sitting without a jury for two days beginning on September 26, 1996. At the court's request, the parties submitted post-trial memoranda in lieu of closing arguments. The matter is now in order for decision.

I. BACKGROUND

The plaintiff, the Pepsi-Cola Company ("Pepsi"), operates a bottling facility in Cranston, Rhode Island for the production and distribution of soft drinks and other beverage products. The defendant, the Rhode Island Carpenters District Council (the "Council"), is an association of local carpenters organized to promote and represent the interests of its members. No Pepsi employee was represented by the Council at any time concerned here.

In September 1995, Pepsi undertook to make certain improvements on one of its bottling lines. It hired Fluor Daniel, a South Carolina construction company, as the general contractor. Fluor Daniel, in turn, was authorized to hire, and did hire, those subcontractors necessary to complete the work. When agents of local labor organizations learned of the construction project, it was already underway.

On Tuesday, October 3, 1995, William Forward, then the business representative for the Council, and Jack Poland, then the business agent for the local electrical workers' union, went to the Pepsi facility to inquire about job availability for members of their local unions. Initially, they spoke with Leo Collins, the highest ranking Pepsi manager available at the time. Collins referred them to Fluor Daniel. Nevertheless, Forward and Poland requested a meeting with Pepsi management, and one was promptly scheduled and held later that same afternoon.

In attendance at the afternoon meeting were Forward, Poland, and Collins, as well as Jeff Huot, Pepsi's local human resources manager, Louie DiBacco, Pepsi's local maintenance manager, and Dan Cunningham, Fluor Daniel's project manager on site. Forward spoke on behalf of the Council.

Forward explained that he had called the meeting in an effort to secure employment for local carpenters. He stated his belief that Pepsi could arrange to have local union carpenters brought onto the Fluor Daniel project. Pepsi representatives did not respond to this assumption. However, it was made clear at the meeting that all of the subcontracts had been awarded and no additional subcontracts were available. Disappointed with the answer, Forward threatened that he would have no alternative but to set up a picket line unless local union carpenters were employed on that job.

At this point in the meeting, Forward and Poland were each given a letter stating that Pepsi would be instituting a system of separate gates. The letter addressed to Forward read as follows:

Effective 12:01 am on Wednesday, October 4, 1995, a system of separate gates will be established at the Pepsi-Cola facility at 1400 Pontiac Avenue, Cranston, RI. A Reserved Gate for the exclusive use of employees, agents, and suppliers of Flour [sic] Daniel, Inc. has been established at the southeast corner of the Pepsi facility. Access to that Reserved Gate is on Kenny Drive. Employees and suppliers of Flour [sic] Daniel, Inc. may use only this Reserved Gate and may not use any other entrances to the Pepsi-Cola facility. Therefore, if you choose to engage in any picketing of Flour [sic] Daniel, Inc. at the Pepsi-Cola facility, such picketing must be limited to this Reserved Gate. Failure to limit any such picketing to the Reserved Gate will result in immediate legal action being commenced against the Rhode Island Carpenters District Council to enjoin the action and recover any and all damages.

Shortly after the meeting, Pepsi posted signs outside the five entrances to the Pepsi facility, numbered sequentially one through five. Gates One through Four were designated for the sole use of Pepsi's employees (hereinafter, "Pepsi gates"). A sign was posted in the southeast corner of the facility outside the Kenny Street entrance, numbered Gate Five (hereinafter, the "contractors' gate"), indicating that that entrance was "for the exclusive use of ... contractors, their employees and suppliers" and advising that "all others [were to] use designated gates." The sign listed 26 companies, including Fluor Daniel.

Following the October 3 meeting, Forward went to the Council's union hall to recruit Council members to picket the Pepsi facility. In preparation, the Council made signs that read "Pepsi Unfair" and "Pepsi Hires Non-Union." Forward testified that, although he knew that some Pepsi employees were members of the International Brotherhood of Teamsters, Local 64 (the "Teamsters") and that the Council and the Teamsters shared the same office building, he did not inform any Teamsters members or officers of his plan to picket Pepsi. Forward did admit, however, that he was aware of the separate gate system instituted by Pepsi and that he understood the concept and practice of setting up separate gates in labor disputes at construction projects.

On Tuesday, October 10, 1995, following the Columbus Day holiday, picket lines formed outside of the Pepsi facility. Starting at about 5:30 a.m., various local trade organizations began picketing the contractors' gate. Many of these pickets wore union apparel which identified them as members of particular local unions. The Council was not among them, however. Rather than picket the contractors' gate, the Council set up pickets along Pontiac Avenue, in front of Gates One and Two, both Pepsi gates. Forward testified that his purpose in setting up pickets in front of the Pepsi gates was "to inform the public about what Pepsi was doing" and "to get jobs for [his] members."

Beginning between approximately 6:00 a.m. and 6:30 a.m., members of the Council, including Forward, marched along the sidewalk and across driveways carrying the signs they prepared stating "Pepsi Unfair" and "Pepsi Hires Non-Union."¹ Although Forward had instructed his members to "behave themselves," the evidence revealed that several of the Council's members shouted rude epithets and made obscene gestures towards passersby. A video recording captured Forward himself lowering his trousers and bending over so as to be, in his words, "blowing a kiss to the president of Pepsi."

When Pepsi's route drivers, all members the Teamsters union, noticed the picket lines, an informal meeting was called to discuss the situation. Paul Nadeau, their chief union steward, telephoned Paul Sroka, the Teamsters' business agent, who immediately came down to the Cranston facility. After a unanimous vote, Sroka informed Pepsi management that no Teamster would cross a picket line. The Teamsters promptly left the facility. The Teamsters justified this action by relying on certain language in their collective bargaining agreement which they believed permitted them to stop work in the event of labor trouble. Nadeau testified that "as a Teamster, [he] will not cross any picket line," and used the term "Teamster Morality" to describe the refusal by a Teamster to cross any picket line. He further testified that several drivers expressed concern for their safety if they crossed the picket line to run their routes. With the exception of the few drivers who had left on their routes before any picketing began, the Teamsters did not make any deliveries on October 10, 1995.²

To the greatest extent possible, Pepsi attempted to make the best of the situation by sending local managers holding commercial drivers licenses on the Teamsters' abandoned routes. However, only about half of Pepsi's routes were serviced that day. Meanwhile, Pepsi sought out additional managers, qualified to operate large commercial vehicles, from nearby Pepsi facilities to drive in the Teamsters' places.

As an additional measure, Pepsi contacted Huffmaster Security, a security firm with whom Pepsi had a national contract, to monitor the gate system and to protect against violence to person and property during the picketing. Until Huffmaster arrived, however, Jeff Huot stood watch over the system of separate gates in place to ensure that only Pepsi personnel entered or exited the facility through Pepsi gates.

On that same day, representatives from Fluor Daniel flew from South Carolina to file an unfair labor practices charge against the Council with the National Labor Relations Board in Boston, Massachusetts. This charge, a copy of which was telecopied to Forward that evening, alleged that Forward had unlawfully threatened Pepsi with picketing and that the Council's picketing at the Pepsi facility was illegal. Fluor Daniel also telecopied Forward a letter that evening demanding that the Council's picketing cease.

The following morning, picket lines again formed in the same locations as before: Various local unions picketed the contractors' gate, while the Council picketed the Pepsi gates on Pontiac Avenue. By this time, Huffmaster Security personnel had arrived and were in place. As on October 10, the Teamsters voted not to run their scheduled routes, and local Pepsi managers tried to cover as many routes as was possible. Out-of-state managers from Massachusetts, Connecticut, and as far away as Maine and West Virginia began to arrive later that afternoon. Even with these reenforcements, however, Pepsi was only able...