Carpet Service International, Inc. v. Chicago Regional Council of Carpenters , 698 F.3d 394 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3194
C ARPET SERVICE INTERNATIONAL,
INC., et al.,
Plaintiffs-Appellants,
v.
C HICAGO R EGIONAL C OUNCIL OF
C ARPENTERS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 1083—Geraldine Soat Brown, Magistrate Judge.
A RGUED M ARCH 26, 2012—D ECIDED S EPTEMBER 25, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
B AUER, Circuit Judge. Plaintiff-appellant, Carpet
Service International, Inc. (“CSI”) (primary employer),
brought an action for damages against defendants-appel-
lees, Chicago Regional Council of Carpenters (“Regional
Council”) and United Brotherhood of Carpenters and
2 No. 11-3194
Joiners of America Local No. 13 (“Local 13”), for unfair
labor practices under the Labor Management Relations
Act (“LMRA”) as codified in 29 U.S.C. § 187. Plain-
tiff-appellant, Carmine Molfese (“Molfese”), brought
individual state law claims of assault and battery and
intentional infliction of emotional distress (“IIED”)
against Patrick Ryan, a union organizer for Local 13. A
bench trial was conducted and the district court ruled
in favor of defendants Regional Council, Local 13, and
Patrick Ryan on all counts. CSI appealed; we affirm.
I. BACKGROUND
As the district court stated in its memorandum
opinion and order (“opinion”), the facts of this case are
particularly difficult to discern; deposition and trial
testimony was muddled, inconsistent, and contradictory.
The district court noted that one possible reason for the
extensive confusion might have been that the labor
dispute at issue was one of three similar disputes
involving some of the same individuals, companies, and
union organizations occurring about the same time. The
district court also stated that certain unfavorable trial
practices, such as leading witnesses on direct examina-
tion, “significantly undermined” the credibility and
reliability of plaintiffs’ witnesses. Nevertheless, in its
opinion the district court made a thorough analysis
of all testimony and evidence presented at trial. The
court then explained its own determinations of credi-
bility and reliability.
Because the issues before this Court were adjudicated
pursuant to a full bench trial, we review the district court’s
No. 11-3194 3
conclusions of law de novo and its findings of fact for
clear error. Johnson v. West, 218 F.3d 725, 729 (7th Cir.
2000). “If the [district court] correctly states the law, then
[its] findings as to whether the facts meet the legal stan-
dard will be disturbed only if they are clearly erroneous.”
Id. at 729 (quoting Daniels v. Essex Group, Inc., 937 F.2d
1264, 1269-70 (7th Cir. 1991)). “One of the basic tenets
of appellate review of district court fact-finding is that
where there are two permissible views of evidence,
the factfinder’s choice between them cannot be clearly
erroneous.” Nemmers v. United States, 870 F.2d 426, 429
(7th Cir. 1989) (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985)) (further citation omitted). As
long as the district court’s account of the evidence is
plausible in light of the record viewed in its entirety,
we may not reverse it even if convinced we would
have weighed the evidence differently. Id.Upon review of the record, we find the district court’s
factual findings to be without clear error. Below are
the relevant credible facts as determined by the district
court.
A. The Parties
In September 2007, CSI entered into a contract with
Sunrise Construction Group, Inc. (“Sunrise”) (neutral
employer) to install carpets, countertops, flooring, and
wall tiles at a new condominium located at 24 South
Morgan Street in Chicago, Illinois (“the job site”). The job
site was located within the geographical jurisdiction
of Local 13. Though CSI was not a signatory to a
4 No. 11-3194
collective bargaining agreement with Local 13 at the
time, it did have four installers working at the job site;
Pietro Molfese, the cousin of CSI’s president, also served
as CSI’s onsite group leader. Aside from CSI, most
workers at the job site were union members. The
general contractor at the job site was a company called
Karpediem (secondary employer), which employed
Ross Ferraro as site manager and Robert Cruz as super-
intendent.
Michael Sexton served as president and business man-
ager of Local 13 and was in charge of Local 13’s opera-
tions. Michael’s son, Ed Sexton, served as business
representative for Local 13. Defendant-appellee Patrick
Ryan served as a union organizer for Local 13.
B. Facts Relating to the 29 U.S.C. § 187 Claims
In July 2008, Ryan went to the job site for a routine
check-up on some of the Local 13 union members. At this
time, he met some of CSI’s workers and became aware
that Sunrise had contracted with CSI and was using
their non-unionized workers on the job site. Ryan im-
mediately announced to the site superintendent, Cruz,
that he planned to picket and strike CSI’s presence at the
job site. In light of this, Cruz asked the CSI workers to
leave for the day. Ryan submitted a written statement
to the Regional Council requesting to picket the presence
of CSI at the job site. On Saturday, July 26, 2008, the
picketing began and was led by Ryan. Instead of holding
signs, Local 13 wore reversible vests. One side of the vest
bore the word “observer”; the other side read, “Chicago
No. 11-3194 5
Regional Council of Carpenters Local No. 13 ON STRIKE
Against CSI for a Contract.” Later, a picketer recalled
picketing on August 19 and testified that he was told to
wear the “observer” side, but only until CSI workers
showed up, at which point he and the other picketers
were to switch their vests to the “on strike” side.
Most of the picketers were retired carpenters and
teamsters paid to picket by the Regional Council; Ryan
was responsible for approving their compensation.
On July 28, Ryan and Michael Sexton, met with
Ferraro at the job site. Ryan asked why CSI was working
at the job site and whether Ferraro knew that they were
not unionized. Ryan and Sexton told Ferraro to “get rid
of them,” referring to CSI, and that if Ferraro used CSI
on other job sites in the future, Local 13 would set up
pickets at those jobs as well. (It is worth noting that
Ferraro would later testify that he responded to the
threats by telling Ryan and Sexton that CSI was a
signatory to a union contract with Local 831. Ryan dis-
puted ever knowing about any contract with Local 831
until sometime in August.)
Prior to July 28, CSI had entered into another
contract to provide tiling services to a parking garage
in Chicago called Monsoon Plaza. Due to Ryan’s threat
of future picketing, Ferraro canceled the contract and
hired another company instead.
Though Ferraro did not fire CSI from the job site, he
did move the CSI workers to night hours starting the
following day. According to Ferraro, the picketing had
caused progress at the job site to slow and he did not
6 No. 11-3194
want to lose any more time. Ferraro also hoped that
having CSI work night hours would make the picketers
go away.
In his complaint, Molfese, CSI’s president, estimated
that CSI lost profits of approximately $4000 when the
Monsoon Plaza contract was cancelled.
C. Facts Relating to the Assault and Battery and
IIED Claims
In ruling on Molfese’s claims of assault and battery and
IIED, the district court stated that it carefully considered
the testimony of each witness, including their relia-
bility and credibility, their observational abilities, and
whether or not they had any particular bias or interest
in the outcome. The district court concluded that
Molfese had failed to meet his burden to prove assault
and battery and IIED. Nevertheless, we briefly recount
the description of the altercation according to Molfese
in order to illustrate the bases of his claim.
Molfese testified: he arrived at the job site at 10:00 a.m.,
he had the Local 831 contract in his pocket, and he
walked toward Ryan and Ed Sexton who were standing
outside of the building. He attempted to show them the
contract, but they refused and angrily told him they
would not honor it. He went back to his car and placed
the contract on the passenger seat facing up and locked
the door. As he walked back toward the building he
saw Ryan approach the car and try to open the door to
get the contract. Molfese went back, unlocked the car
No. 11-3194 7
door, and turned the contract upside down. Molfese
claims that Ryan then said, “[w]ho are these [expletive
racial slur] trying to be able to take our work away
from this area?” Molfese then claimed Ryan hit him
and kneed him right underneath his ribs. It is undisputed
that several months prior in December 2007, Molfese
had suffered a heart attack and undergone open-heart
surgery. When he asked Ryan why he hit and kneed
him, Molfese claims Ryan responded, “I’m going to
give you another [expletive] heart attack.” According to
Molfese, Ed Sexton then pulled Ryan off of Molfese
and called the police.
Molfese claimed this blow from Ryan caused him
great pain and suffering due to the fact that he was still
recovering from his open-heart surgery. On August 21,
Molfese went to an urgent care facility after discovering
blood in his stool and urine; he was examined and re-
leased. On August 26, Molfese saw his own doctor,
Dr. Maida. Molfese testified that at that time he was
fearful of having another heart attack, either caused by
Ryan or otherwise. Ultimately, Molfese claimed that as
a result of being hit by Ryan, he had suffered physical
and emotional problems, including fatigue, back pain,
shortness of breath, tenderness in his chest, nervousness,
stress, ulcers, weight gain, and impotence.
Molfese sought $150,000 in compensatory damages
and $1.5 million in punitive damages for his assault
and battery and IIED claims. Additionally, because of
Molfese’s claimed medical conditions, his work suffered
and he was forced to drastically cut back on his hours.
8 No. 11-3194
In light of this, CSI sought to recover $10,800 in
damages for wages paid to Molfese for “non-productive
time,” and $100,000 in lost profits for the months of
August to December 2008 due to Molfese’s limited work
product and inability to obtain bids.
At the conclusion of the bench trial, the district court
determined neither CSI nor Molfese had satisfied their
burden against the defendants.
II. ANALYSIS
A. CSI’s Claims on Appeal
CSI claims the district court erred by failing to find
that Regional Council and Local 13 violated 29 U.S.C.
§ 158(b)(4)(ii) by engaging in illegal secondary activity.
Title 29 U.S.C. § 158(b)(4)(ii) states: “[i]t shall be an
unfair labor practice for a labor organization or its
agents . . . to threaten, coerce, or restrain any person . . . to
cease doing business with any other person . . . Provided,
That nothing contained in this clause [ ] shall be con-
strued to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing.” 29 U.S.C.
§ 158(b)(4)(ii). A union does have the right to pressure
a primary employer with which it has a grievance,
utilizing strike or picketing methods, so long as the
union does not directly involve or engage any
secondary employer in the labor dispute. BE&K Constr.
Co. v. Will & Grundy Counties Bldg. Trades Council, 156
F.3d 756, 761 (7th Cir. 1998).
No. 11-3194 9
In cases such as this, where the primary employer
and the secondary employer share a common work site,
there is potential ambiguity as to which employer is
being targeted. In such situations “the picketing is pre-
sumed lawful so long as the union does not intend to
enmesh the secondary employer in the dispute.” Tri-Gen
Inc. v. Intl. Union of Operating Engr’s, Local 150, AFL-CIO,
433 F.3d 1024, 1038 (7th Cir. 2006) (internal quotations
omitted). With that said, even if picketing the primary
employer has an incidental but foreseeable substantial
effect on the secondary employer, the union remains
within its rights so long as the purpose of the activity
was not to coerce secondary employers. Mautz & Oren,
Inc., v. Teamsters, Chauffeurs, & Helpers Union, Local No.
279, 882 F.2d 1117, 1121 (7th Cir. 1989). Naturally,
“[p]rimary picketing always has as one of its goals
the inducement of secondary employers to stop dealing
with the primary employer,” Tri-Gen, 433 F.3d at 1041;
thus the plaintiff must bear the burden to prove that
the union intended to pressure the secondary employer
and that the union engaged in illegal conduct to that
end. BE&K, 156 F.3d at 767.
To determine whether or not a union’s activity was
lawful when a primary and secondary employer are
occupying the same work site, a court must employ the
Moore Dry Dock standards. Id. at 761; see also In re Sail-
ors’ Union of the Pacific AFL & Moore Dry Dock Co.,
92 N.L.R.B. 547, 549 (1950). In order for the union
activity to be considered lawful primary activity, (1) it
must be strictly limited to times when the situs of the
dispute is located on the secondary employer’s premises;
10 No. 11-3194
(2) the primary employer must be engaged in its normal
business at the situs; (3) the activity must be limited to
places reasonably close to the location of the situs; and
(4) the activity must clearly disclose that the dispute
is with the primary employer. Id.On appeal, CSI argues that the district court failed
to properly apply the Moore Dry Dock standards to
Local 13’s picketing activities. Additionally, CSI
argues that the district court should have applied the
standards to the threats made by Ryan to Ferraro. We
disagree on both counts. The district court stated:
The evidence at trial established that Local 13 sub-
stantially adhered to the Moore Dry Dock standards
by limiting “on strike” picketing to [the job site] and
[to] dates it could reasonably believe that CSI
was working there, and by clearly identifying on
the picketers’ vests that the picket was against CSI.
Therefore, Local 13’s picketing is presumed lawful
primary picketing.
The court properly applied the Moore Dry Dock stan-
dards. As noted at the outset, the purpose of appellate
review is to determine whether or not the district court
applied the proper law to the facts; determining relia-
bility and credibility of evidence on the record is not
part of this Court’s undertaking. The district court’s
findings clearly show that Local 13’s activities were
lawful under the Moore Dry Dock standards.
With regard to the threats made by Ryan to Fer-
raro, though the district court determined that Ferraro’s
account was credible and reliable, application of the
No. 11-3194 11
Moore Dry Dock standards to Ryan’s threats would
require that the district court find the threats con-
stituted secondary activity on the part of the union. The
district court was correct to not make that determination.
The threats made by Ryan are not of the kind that were
intended to be prohibited. Ryan simply attempted to
persuade Ferraro by stating what Local 13’s future
course of action would be if Karpediem continued to
employ non-union members. The threatened course of
action is not in itself an illegal activity, nor is it
improper for a union official to inform a secondary em-
ployer that they intend to picket the hiring of non-union
members; picketing is an activity that unions are legally
entitled to utilize and rely on. Ryan stating his intent
to picket does not constitute secondary activity. The
district court’s determination to exclude Ryan’s threats
from the Moor Dry Dock analysis was proper.
B. Damages
As previously stated, CSI claimed over $100,000 in
damages as a result of Local 13’s alleged violations.
However, the district court determined that CSI failed to
present the court with anything other than inconsistent
estimates as to the amount it claimed; the court
found CSI’s claims to be too speculative. The damages
consideration is irrelevant though, because we affirm
the district court’s final determination that neither Re-
gional Council nor Local 13 acted unlawfully. CSI is
therefore not entitled to any damages. See Teamsters
Local 20 v. Morton, 377 U.S. 252, 260 (1964).
12 No. 11-3194
C. Molfese’s Claims
Finally, Molfese also appeals the district court’s final
determinations relating to his claims of assault and
battery and IIED. The district court found Molfese’s
claims not to be credible because his supporting testi-
mony was unreliable and inconsistent. These were
fact-based determinations made by the district court.
Having found no clear error, the issue is not eligible
for review by this court.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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