Univar, USA, Inc. v. Teamsters Union Local 251 , 98 F. App'x 21 ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2230
UNIVAR, USA, INC.,
Plaintiff, Appellee,
v.
TEAMSTERS UNION LOCAL 251,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Marc B. Gursky, with whom Thomas R. Landry and Gursky Law
Associates were on brief, for appellant.
Lincoln D. Almond, with whom Mark A. Pogue, John D. Doran and
Edwards & Angell, LLP were on brief, for appellee.
May 25, 2004
Per Curiam. On July 30, 2003, Univar USA, Inc., a
chemical distribution and production company, secured an injunction
enjoining Teamsters Union Local 251 from committing a number of
unlawful acts on its then two-week-old picket line outside Univar's
facilities. The injunction, issued pursuant to the Norris-
LaGuardia Act, 29 U.S.C. § 101 et seq., prohibits Union members
and/or picketers from trespassing on Univar's property; threatening
or assaulting Univar's employees, suppliers, independent
contractors, or others seeking to enter or exit Univar's
facilities; standing within 20 feet of any vehicle entering or
leaving the facilities; blocking any vehicle entering or leaving
the facilities; and placing in the roadway or on Univar's property
any object with the intention of damaging Univar's vehicles or the
vehicles of Univar's suppliers, employees, or business invitees.
The injunction also requires picketers to move in single file while
on the picket line.
The Union brings this appeal to contest the issuance of
the injunction. The Union does not dispute that behavior of the
sort enjoined occurred on its picket line between July 16, 2003
(the day the Union began its strike) and July 30, 2003 (the day the
injunction issued). Rather, the Union notes that "the nation's
labor policy counsels that district courts be chary about intruding
into the [labor dispute] field" because of "the long, sometimes
tragic[] history of premature judicial intervention in labor-
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management controversies." Independent Oil & Chem. Workers v.
Proctor & Gamble, 864 F.2d 927, 929 (1st Cir. 1988). Building from
this presumption against intervention and invoking the statutory
admonition that "no injunction or temporary restraining order shall
be issued on account of any threat or unlawful act excepting
against the person or persons, association, or organization making
the threat or committing the unlawful act or actually authorizing
or ratifying the same after actual knowledge thereof," 29 U.S.C. §
107(a), the Union contends that "[t]he record is completely bereft
of any evidence which supports the District Court's conclusion that
the Union actually ratified and/or authorized unlawful acts after
knowledge thereof." Alternatively, the Union asserts that "the
record is similarly devoid of any evidence demonstrating that
illegal acts were likely to continue unless restrained." Univar's
response contains a challenge to the Union's interpretation of §
107(a) and its application to this case, but we leave the legal
issues to another day because the appeal is susceptible of
resolution on narrower grounds.
The district court supportably found that, on July 17,
2003, the Union's President and Business Agent, Joseph Bairos, had
told picketers to picket back and forth in an orderly fashion
(after putting an end to the picketers' practice of using mirrors
to reflect sunlight into the faces of Univar drivers and
employees). Nevertheless, on July 18, 2003, Bairos arrived at the
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strike scene and saw that picketers were not following his
instructions. Instead, they had blocked a train from making a
delivery to Univar. The district court described (in an oral
ruling) what happened next:
Mr. Bairos did not instruct the
picketers to disperse from in front of the
train and move back and forth in an orderly
fashion. Rather, he did not tell them to
disperse until after he had personally spoken
to the train engineer and secured an assurance
from that engineer that the delivery would not
be made to the Plaintiff that day.
The court also found that on the picket line, "there is
a designated contact person, either the union steward or the most
senior employee, with whom [Bairos] and/or [another business agent
with responsibility for the Univar strike and the picketing] may
communicate by cell phone."
The court then relied heavily on these two findings in
rejecting the Union's no-ratification/authorization argument:
On July 17th, Mr. Bairos instructed that the
picketers be orderly and that they keep
moving. On the very next day, however, when
he was on the scene himself and saw that the
picketers were not acting in an orderly
fashion or moving but rather standing in front
of the train engine, rather than reiterate his
previous instruction and to order his members
to disperse, he personally secured the
assurances from the engineer not to make the
delivery, engaged in some conversation with
the engineer, and then once he secured
assurance from the engineer, the membership
dispersed.
This activity on the part of Mr.
Bairos, as president of the union, in my mind
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is the equivalent of [a] wink and nod. That
is, it is as though he's saying to the members
that it's fine to congregate as they did and
to remain in place, in other words, to do as I
do rather than to do what I told you to do
yesterday . . . .
Moreover, as Mr. Bairos has testified,
even when leadership may not be physically
present on the line, there is a contact person
so designated with whom the leadership can
talk by cell phone and receive reports of what
is going on.
Taking all of these [and other] facts
into account, this Court finds that the
Defendant union in this case had actual
knowledge of these unlawful acts and by
actions of the leadership itself authorized
and/or ratified after the fact those unlawful
acts.
(emphasis supplied).
In presenting its argument that the record is "bereft" of
evidence that Union officers authorized and/or ratified the illegal
conduct giving rise to the injunction, the Union all but ignores
the district court's determinations that such authorization or
ratification occurred because, inter alia, (1) Bairos gave "a wink
and a nod" to the unruly picketers, and (2) the Union at all
relevant times had an agent on the picket line and thus was on
notice of the unlawful behavior underlying the injunction.1 Thus,
assuming arguendo that authorization or ratification were required,
the district court expressly made such a finding with its finding
1
Indeed, in quoting the allegedly "relevant" portion of the
court's ruling in its Statement of Facts, the Union omits the
underlined language quoted above and replaces it with an ellipsis.
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of "a wink and a nod." The Union presents no argument that the
finding was not supported by the evidence and so has waived the
argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). And in any event, our reading of the record does not
persuade us that the court reversibly erred in its factual findings
or in tailoring its injunction to those findings.
We also reject the Union's argument that the district
court erred in determining that illegal acts were likely to
continue unless restrained. There was uncontradicted evidence
that, well after the Union was on notice that Univar was seeking an
injunction, persons attempting to drive into and out of Univar's
facilities were subjected to assaults, threats, having their
vehicles blocked, and dangerous games of "chicken" by persons
(presumably Union members or sympathizers) driving other vehicles.
The record as a whole supports the court's conclusions that an
injunction was necessary to preserve the peace in a situation with
escalating tensions and lawlessness, and that an injunction against
the Union was an appropriate mechanism for defusing the situation.
Affirmed.
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