CARPET SERVICE INTERNATIONAL, INC., et al., Plaintiffs-Appellants, v. CHICAGO REGIONAL COUNCIL OF CARPENTERS, et al., Defendants-Appellees.
No. 11-3194
United States Court of Appeals, Seventh Circuit
Decided Sept. 25, 2012.
694 F.3d 394
Argued March 26, 2012.
The prosecution closed its case with flair, calling lawyer Ryan to tell the jury about Williams‘s “rotten” scheme to procure false alibi testimony, and just before resting, reading the crude letter aloud to the jury. When Williams testified, the prosecutor finished his cross-examination in devastating fashion by walking Williams through the letter to his cousin line by line, forcing him to admit that each of fifteen statements in the letter was a lie. During closing arguments, the government again emphasized Williams‘s attempt at a false alibi.
The circumstantial evidence against Williams was certainly strong. The fact that he was fоund in a car with some of the stolen money a few hours after one robbery was strong evidence that he was involved. He was also wearing shoes that were consistent with tracks left by one of the robbers and stained with a dye that matched a robber‘s clothing, and he owned a gun like one used in the robberies. But the direct identification evidence was nоt ironclad. A cooperating accomplice identified Williams and Austin as the robbers after receiving very lenient treatment, and his testimony was vulnerable to credibility challenges. An admittedly angry ex-girlfriend identified Williams as the masked man from a video by only “his movement and the way he walk,” and a neutral witness saw only two people emerging from a getaway car that the prosecution‘s star cooperating witness said should have held three.
The question for us is whether there is a reasonable probability that the erroneously admitted evidence affected the verdict. Given some of the weak spots in the government‘s case, it‘s not hard to imagine a skeptical juror, troubled by doubts, being swayеd by another juror‘s argument: “But if he didn‘t do it, why would he try to fake an alibi?” And recall that the prosecution has advised us that Ryan‘s testimony was “essential” to its case, as needed to satisfy Rule 3.8(e). My colleagues disagree with that assessment, but I would give more weight to the prosecution‘s view of its own case and resolve the close question in favor of a new triаl.
Defendant Williams presents one of those rare cases where ineffective assistance can be decided from the contents of the record on direct appeal. I would remand for a new trial of Williams, this time without any mention of lawyer Ryan or the letter as part of the prosecution‘s case-in-chief.
Raymond J. Sanguinetti (argued), Attorney, Whitfield, McGann & Ketterman, Chicago, IL, for Defendants-Appellees.
Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.
BAUER, Circuit Judge.
Plaintiff-appellant, Carpet Service International, Inc. (“CSI“) (primary employer), brought an action for damages against defendants-appellees, Chicago Regional Council of Carpenters (“Regional Council“) аnd United Brotherhood of Carpenters and Joiners of America Local No. 13 (“Local 13“), for unfair labor practices under
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 examination, “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 credibility and reliability.
Because the issues before this Court were adjudicated рursuant to a full bench trial, we review the district court‘s 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 standard 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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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 Mоrgan 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 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 wоrkers 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 superintendent.
Michael Sexton served as president and business manager of Local 13 and was in
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 immediately 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 thе 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 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 thе “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 Ferrаro 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 аnd Sexton that CSI was a signatory to a union contract with Local 831. Ryan disputed 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 thе 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 want to lose any more time. Ferraro also hoped that having CSI work night hours would make the picketers gо 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 reliability 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 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 stoоl and urine; he was examined and released. 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, shortnеss 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. 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 Rеgional Council and Local 13 violated
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 Sailors’ Union of the Pacific AFL & Moore Dry Dock Co., 92 NLRB 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; (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 substantially 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 standards. 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 reliability 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 Ferraro, thоugh the district court determined that Ferraro‘s account was credible and reliable, application of the Moore Dry Dock standards to Ryan‘s threats would require that the district court find the threats constituted 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.
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 Regional 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, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964).
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 testimony 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 AFFIRM the judgment of the district court.