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Carpet Service International, Inc. and Carmine Molfese v. Chicago Regional Council of

August 30, 2011

CARPET SERVICE INTERNATIONAL, INC. AND CARMINE MOLFESE, PLAINTIFFS,
v.
CHICAGO REGIONAL COUNCIL OF
CARPENTERS, UNITED
BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA LOCAL
UNION NO. 13, AND PATRICK RYAN, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Plaintiff Carpet Service International, Inc., brought a claim against defendants Chicago Regional Council of Carpenters and United Brotherhood of Carpenters and Joiners of America Local Union No. 13 under the Labor Management Relations Act, 29 U.S.C. § 187. (Compl.) [Dkt 1.] Plaintiff Carmine Molfese individually brought state law claims of assault, battery, and intentional infliction of emotional distress ("IIED") against the two union defendants and defendant Patrick Ryan. (Id.)

The parties have consented to magistrate judge jurisdiction. [Dkt 102.] A bench trial was conducted on January 18, 19, 20, and 24, 2011.*fn1 [Dkt 106-09.] The parties submitted written post-trial proposed findings of fact and conclusions of law. [Dkt 117, 119, 120, 124.] The court has carefully considered the testimony of the witnesses, the exhibits introduced into evidence, and the written submissions of the parties. The following constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). To the extent certain findings may be deemed conclusions of law, they shall also be considered conclusions. Similarly, to the extent matters contained in the conclusions of law may be deemed findings of fact, they shall also be considered findings. See Miller v. Fenton, 474 U.S. 104, 113-14 (1985). For the reasons set forth below, the court finds in favor of defendants on all counts.*fn2

I. Findings of Fact

A. Background

The parties

Plaintiff Carpet Service International, Inc. ("CSI"), is an Illinois corporation that sells and installs flooring. (Tr. 206-07.) In the summer of 2008, CSI had 14 employees. (Tr. 219.) Plaintiff Carmine Molfese ("Molfese") is the president of CSI, a company he started more than twenty years ago. (Tr. 204.) Pietro Molfese, Molfese's cousin, has been employed by CSI as a laborer for the past twenty years, since coming to the United States. (Tr. 156, 158, 184.) Sor (or Sori) Ray is Molfese's assistant, and works at CSI's offices in Addison, Illinois. (Tr. 219, 472.) Molfese, Pietro Molfese, and Ms. Ray all testified at the trial.

Defendants Chicago Regional Council of Carpenters ("Chicago Regional Council") and Carpenters Local Union No. 13 ("Local 13") are both "labor organizations" within the meaning of the National Labor Relations Act, 29 U.S.C. § 152(5). (Ans. ¶¶ 51, 53.) [Dkt 9.] The Chicago Regional Council's jurisdiction covers 81 counties in Illinois, Wisconsin, and Iowa. (Tr. 562-63.) Local 13 is affiliated with the Chicago Regional Council, which has been paying Local 13's officers' salaries since January 2000. (Tr. 13, 31.) Local 13's jurisdiction encompasses an area within the city of Chicago bounded by Roosevelt Road on the south, Addison Street on the north, Pulaski Street on the west and the lakefront on the east. (Tr. 597, 675.) At the time of trial, defendant Patrick Ryan ("Ryan") had been a union organizer for Local 13 for approximately five and a half years. (Tr. 654.) Michael Sexton served as the President and Business Manager of Local 13 from April 1995 through July 2010. (Tr. 11, 634.) Edmund (Ed) Sexton, Michael Sexton's son, had been a business representative for Local 13 for five and a half years at the time of trial. (Tr. 595, 597-98.) Michael Sexton, Ed Sexton, and Ryan all testified at the trial.

Plaintiffs' complaint initially also named Local Union No. 1185 of the United Brotherhood of Carpenters and Joiners ("Local 1185") as a defendant. (See Compl.) Local 1185 is a local union covering a specialty craft (floor covering) with a jurisdiction encompassing the 81 counties within the Chicago Regional Council. (Tr. 561-62.) Plaintiffs voluntarily dismissed Local 1185 as a defendant in this case in 2009. [Dkt 21.]

Procedural history

After denying defendants' motion for summary judgment, the District Judge to whom this case was previously assigned set it for a bench trial. [Dkt 54, 59, 62.] He also granted two motions in limine brought by defendants. First, the District Judge granted defendants' motion to bar thetestimony of Esther Molfese, Molfese's wife. [Dkt 73, 99.] Second, he granted defendants' motion to bar plaintiffs from presenting any testimony under Federal Rule of Evidence 702 because plaintiffs had not served any disclosures under Federal Rule of Civil Procedure 26(a)(2). [Dkt 77, 95.] See Meyers v. Natl. R.R. Passenger Corp, 619 F.3d 729, 734-35 (7th Cir. 2010); Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004). The District Judge ruled that one of Molfese's physicians, Dr. Gerald Maida, could testify about instructions he gave Molfese, as agreed by defendants, but could not testify to anything that would constitute Rule 702 testimony. (Tr. Oct. 21, 2010 at 4.) [Dkt 110.] The District Judge denied without prejudice defendants' motion to bar testimony by Ms. Ray. (Id. at 6.) He stated that she could not testify as an expert, but that to the extent she would be "simply reciting from the books and records and drawing some conclusions from that that I could draw as the finder of fact," her testimony would be allowed. (Id.) After the case was reassigned to this court, those rulings were enforced at the trial.

Plaintiffs' claims

CSI claims damages under Section 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187. (Compl. ¶ 7.) That section provides a private right of action for anyone injured in his business or property by a labor organization engaged in an "unfair labor practice" as defined in § 158(b)(4). The latter section provides that it is an "unfair labor practice" for a labor organization or its agents to "threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce," with the object of "forcing or requiring any person . . . to cease doing business with any other person . . . Provided, [t]hat nothing in this clause . . . shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." 29 U.S.C. §158(b)(4)(ii). In this case, CSI claims that in the summer of 2008, Local 13 had a dispute with CSI (the primary employer), and engaged in unlawful secondary activity against a secondary employer, Sunrise Construction Group, Inc., with whom CSI had a contract.

In his individual claims, Molfese alleges that on August 19, 2008, during a confrontation near the worksite, Ryan struck Molfese with his knee on the Molfese's left side, knowing that Molfese had undergone open heart surgery a few months earlier, and threatened to give him another heart attack. (Compl. ¶¶ 3, 86-88.)

B. Evidence presented at trial

Plaintiffs' presentation of evidence at the trial was difficult to follow for a number of reasons. To start, CSI's claim is complicated by the fact that the events that CSI now alleges constitute Local 13's unlawful secondary activity were bracketed by two other labor disputes in the summer of 2008 which are not the subject of this case, as will be explained further below. The testimony of plaintiffs' witnesses at times did not make a clear distinction among the various disputes. Additionally, the testimony of plaintiffs' witnesses was confusing and sometimes contradictory. The credibility and reliability of plaintiffs' witnesses' testimony was also significantly undermined by plaintiffs' counsel's leading questions in the direct examination of those witnesses on contested substantive issues. That raised questions about whether the witness was testifying from his own recollection or from the prompting of plaintiffs' counsel. See U.S. v. Durham, 645 F.3d 883, 891 (7th Cir. 2011) (collecting cases which caution that leading questions may plant a false memory and inhibit the jury's ability to make credibility determinations). Plaintiffs' counsel also interjected statements about the evidence as witnesses were being examined. (See, e.g., Tr. 123, 226-27, 391- 92, 532-33, 731-32, 752-53, 759-60.)*fn3 Plaintiffs' counsel persisted in that behavior even after repeated objections by defendants' counsel and admonishments from the court. (See, e.g., Tr. 135-136, 227, 424-425, 518-19, 532-33.)

Molfese's credibility was substantially undercut by his own inconsistent testimony, the inconsistency between his present testimony and his deposition testimony taken in 2009, and his demeanor during testimony, including patent exaggerations. By the end of his testimony, he and his own counsel were arguing about particular points in his testimony. (See, e.g. Tr. 421-24.)*fn4

Those are some of the factors that the court considered in deciding whether the plaintiffs carried their burden of proving disputed questions of fact.

CSI's contract to perform work at 24 S. Morgan On September 25, 2007, CSI entered into a subcontractor agreement with Sunrise Construction Group, the general contractor of a mid-rise condominium building being built at 24 S. Morgan in Chicago, Illinois. (Pls.' Exs. 2, 3; Tr. 635.) CSI was to install carpets, countertops, and floor and wall tiles in the building units. (Pls.' Exs. 2, 3; Tr. 85-86.) The total contract amount for materials and labor was $586,670.64. (Pls.' Ex. 3; Tr. 87.) In the summer of 2008, CSI had four employees working at the 24 S. Morgan site. (Tr. 217-18.)

The program (that is, construction) manager of the 24 S. Morgan job site was Ross Ferraro, Jr., who was employed by Karpedium, Inc. (Tr. 77-78.) Mr. Ferraro's responsibilities included overseeing the day-to-day operations at the job site, scheduling, managing costs, and communicating with the city. (Id.) Karpedium maintained offices from which Mr. Ferraro worked at 1000 W. Monroe, which is around the corner from the 24 S. Morgan building. (Tr. 54, 78.) Robert Cruz, also a Karpedium employee, was the superintendent of the job site in the summer and fall of 2008. (Tr. 130.) Mr. Ferraro and Mr. Cruz testified at the trial.

Local 13's presence at the 24 S. Morgan job site The 24 S. Morgan site is located within Local 13's geographical jurisdiction. (Tr. 597, 675.) When the building project began in the spring of 2007, agents of Local 13 became interested in the site because they believed carpenters would be working there. (Tr. 597-98, 635-36, 654-55.) Michael Sexton, Ed Sexton, and Ryan visited the site in spring 2007 to make contact with the general contractor and find out who would be pouring the foundation. (Tr. 598, 635-36, 654-55.) As the job progressed, Local 13 continued to monitor the site because two companies working there,Concrete Structures and Welch Drywall, had contracts with the Chicago Regional Council. (Tr. 599-600, 659.) Agents of Local 13 periodically visited the site to speak with their members and to "make sure everything was going okay." (Tr. 600-01.)

The first labor dispute: Local 13's picket against "Sunrise Equities"

Sometime before June 6, 2008, Local 13 received complaints from workers at the 24 S. Morgan site that "Sunrise Equities" had non-unionized laborers performing carpentry work there. (Tr. 601-02.)*fn5 The company allegedly providing the non-union labor was Bobak Construction, apparently unrelated to CSI. (Tr. 79.) Michael Sexton obtained permission from the Chicago Regional Council to conduct a recognitional picket against Sunrise Equities for the purpose of obtaining a union contract, which took place at the 24 S. Morgan job site beginning on or about June 6, 2008 and lasted approximately one week. (Tr. 27, 80, 602.) Rather than carrying picket signs on a stick, the picketers from Local 13 wore vests over their clothing that read across the front: "Chicago Regional Council of Carpenters Local No. 13 ON STRIKE Against Sunrise Equities Inc. for a Contract." (Tr. 31-32, 34; Pls.' Ex. 6, pp. 1.)

The picketing against "Sunrise Equities" was disruptive to the 24 S. Morgan work site, and Mr. Ferraro testified that it "shut down" the project for about ten days because some of the laborers refused to work while the strike was going on. (Tr. 80-81.) On June 11, 2008, Mr. Ferraro filed a complaint with the National Labor Relations Board (NLRB), stating that Local 13 had "picketed Sunrise Equities, a neutral entity that has no presence on the job site, with an object of forcing or requiring Sunrise Equities or other neutral entities to cease doing business [with] TB [presumably Bobak] Construction." (Defs.' Ex. 1.) That complaint was later withdrawn. (Defs.' Ex. 2.)

Significantly, the parties stipulated that plaintiffs are not seeking any damages for the picketing in June 2008, or any picketing prior to July 26, 2008. (Tr. 34.)

Mr. Ferraro mentioned several times in his testimony that the June 2008 strike by Local 13 delayed the project he was managing: "I literally lost, like I said, it was about nine or 10 days of work." (Tr. 82; see also Tr. 81, 97.) Also, he had dealt with CSI as a subcontractor for "years." (Tr. 89.) Although he, Mr. Cruz, and their employer Karpedium are not parties to this action, those are facts the court considered in weighing their testimony.

The second labor dispute: Local 13's picket against CSI Beginning of the picketing

CSI was a signatory to a collective bargaining agreement with the National Allied Workers Union Local 831 ("Local 831") that is dated July 12, 2008. (Pls.' Ex. 4.) There was no evidence as to when the agreement was entered into other than the date printed on the contract. Mr. Ferraro recalled that at some time Molfese showed him the CSI's agreement with Local 831, but could not recall the date. (Tr. 88.) CSI was not a signatory to a collective bargaining agreement with any of the defendants.

In mid-July 2008, Local 13 became aware that CSI was working at the 24 S. Morgan site from Pat Noonan, a business agent or organizer for Local 1185. (Tr. 656.) At some time in late July, 2008, Ryan visited the job site along with Ed Sexton and Pat Noonan, and spoke with severalCSI employees, one of whom he now knows was Pietro Molfese. (Tr. 64-66, 657-59.) There were several versions of this event described at trial. Ryan testified that he went to the site with the others on or about July 23 or 24, prior to the date the second picketing started which was, by all accounts, Saturday, July 26. (Tr. 657.) He introduced himself and inquired whether the CSI employees had union cards; according to Ryan, they replied they did not and that they were not union members. (Tr. 75, 658-60.) At some point during the conversation, Mr. Cruz appeared, and Ryan told him Local 13 planned to put up a picket line because non-union workers were on the job site. (Tr. 661.) Mr. Cruz asked the CSI employees to leave that day, on Mr. Ferraro's instruction. (Id.) Ryan testified that he and Ed Sexton did not speak to Mr. Ferraro personally. (Tr. 66, 661.)

Pietro Molfese testified to a different version. He testified that Ryan approached him and two other CSI employees at the 24 S. Morgan site on July 28, 2008, the Monday after the Saturday the picketing had begun. (Tr. 162.) Pietro Molfese said that Ryan confronted them about whether they were unionized. (Tr. 162-64.) Pietro Molfese testified he told Ryan that they were union members and showed him his Local 831 card. (Id.) Pietro Molfese testified that Ryan looked at the card and said "[W]hat kind of card is this? This is a [expletive] card. This is a [expletive] union." (Tr. 164.) He said that Ryan then yanked the cord of the drill a CSI employee was using out of the wall and told them they had to leave the job site, to which Pietro Molfese responded they would not. (Tr. 164-65.) Pietro Molfese testified that Mr. Cruz, the site superintendent, later came and told the CSI employees they had to leave and that they would be moving the CSI workers to a night shift until further notice. (Tr. 166.) On cross-examination, however, his testimony wavered: his confrontation with Ryan might have been July 26, 27 or 28, "one of these dates." (Tr. 178.)

Pietro Molfese also testified that on the day of his confrontation with Ryan and every timehe was at the job site, a picketer was present carrying a sign on a stick with a picture of a big orangered rat on it, and two other picketers were carrying signs that said "scabs." (Tr. 160.)*fn6 Notably, neither of the Karpedium employees who testified supported Pietro Molfese's version of the picketers. Mr. Cruz took photographs of the picketers, but none of the pictures show picketers with signs on sticks. (Pls.' Ex. 6 at 2-7; Tr. 130-32.) All of the picketers were wearing vests with the words "Chicago Regional Council of Carpenters Local 13 ON STRIKE against CSI for a contract." Likewise, Mr. Ferraro said that the vests shown in the pictures were the signs he saw the picketers wear. (Tr. 90, 123.) Neither he nor Mr. Cruz testified that they saw any signs with pictures of rats or the word "scabs." In fact, Mr. Cruz testified that the did not see any signs on sticks or a sign with a rat on it, although he was on the project site every day in July and August. (Tr. 155-56.) This testimony discredits Pietro Molfese's testimony: if the picketers had carried signs of the graphic nature that Pietro Molfese described, Mr. Cruz and Mr. Ferraro would presumably have remembered it, and Mr. Cruz would have photographed those signs, not the comparatively bland vests shown in the pictures he took. Similarly, neither Mr. Cruz nor Mr. Ferraro testified to witnessing or hearing any complaint by Pietro Molfese that Ryan had yanked the cord of CSI's drill out of the wall.

The court accepts Ryan's testimony that he visited the site on July 23 or 24, before the picketing began, inquired about the union status of CSI's workers, and was told that they did not belong to a union. Because Ryan believed that CSI was employing non-union workers at the job site, he obtained permission from Chicago Regional Council to picket CSI at the 24 S. Morgan location.

(Tr. 51, 686-87.) The picket began on Saturday, July 26, 2008 and was led by Ryan. (Tr. 31, 568-69, 657, 685.) The picketers were retired union members and teamsters. (Tr. 54-55.) They submitted remuneration reports, which Ryan signed and brought back to the Chicago Regional Council, which compensated the picketers. (Tr. 51, 61-63, 687; Pls.' Exs. 14-16).

The picketers' activity

For the reasons described above, the court finds that the picketers did not carry signs on sticks with pictures of rats or the word "scabs." Rather, the picketers wore the same style of vests in the picket against CSI that were used in the picket against Sunrise Equities, which read across the front: "Chicago Regional Council of Carpenters Local No. 13 ON STRIKE Against CSI for a Contract." (Pls.' Ex. 6 at 2-6.) One of the Local 13 picketers was Joe Jaros who testified that it was Local 13's practice for picketers to flip the vests over to read "Observer" when CSI workers were not present at the job site. (Tr. 577-79, 608.) Both Mr. Ferraro and Mr. Cruz observed that the vests were at times flipped to read "Observer." (Tr. 123-24, 150.) Mr. Cruz testified that he believed that there may have been "a few" times when CSI was not present at the job site and the vests still bore the "on strike" language, although he did not identify any particular date and at his deposition he did not recall any such instance. (Tr. 151.) When turned to the "on strike" side, the vests always mentioned CSI. (Tr. 149.)

Typically, the picketers were present at the job site three times a day, and held the picket at the north side of the building near an alley that led to a parking lot where the laborers parked. (Tr. 53, 55-56, 73-74.)Mr. Cruz testified that there were "a couple [of] circumstances" when he had the workers park in the parking lot, and the union picketers stopped everyone and asked who they wereand took down their license plate numbers. (Tr. 137.) Although Mr. Ferraro is familiar with the concept of a "reserve gate," he did not establish a reserve gate at the 24 S. Morgan job site during the picketing by Local 13. (Tr. 112-14.)*fn7 As a result of the picketing against CSI, Welch Drywall workers walked off the job site. (Tr. 688.) Local 13 did not picket at CSI's office in Addison, Illinois. (Tr. 75.)

Mr. Cruz had about four conversations with Ryan during July and August 2008, which were always about Local 13. (Tr. 151-52.) One of the picketers told Mr. Cruz that if CSI's workers left the job site, the picketers would also leave. (Tr. 143.) Mr. Cruz testified that "it's fair to say" that the focus of Local 13 during July and August 2008 was on CSI. (Tr. 152.)

July 28 Meeting with Ross Ferraro

On Monday, July 28, 2008, the second day of the picketing against CSI, Ryan and another man from Local 13 whom Mr. Ferraro believed to be Michael Sexton came to visit him at the Karpedium office. (Tr. 90-91, 95.) Mr. Cruz observed this meeting take place, but could only identify Ryan. (Tr. 133.) According to Mr. Ferraro, Ryan asked him why CSI was working at the job site and whether Mr. Ferraro knew if they were unionized. (Tr. 91.) Ryan and Michael Sexton asked Mr. Ferraro to "get rid of them," referring to CSI. (Tr. 91-92, 94-95.) Ryan also told Mr. Ferraro that if he used CSI on other jobs, Local 13 would set up pickets at those job sites as well. (Tr. 94.) Mr. Ferraro testified that he told Ryan and Michael Sexton at this meeting that CSI was a signatory to a union contract with Local 831, and showed them Local 831's website. (Tr. 92-93.)

Ryan testified that he never told Mr. Ferraro that he should kick CSI off the job. (Tr. 680.) However, the court credits Mr. Ferraro's recollection that Ryan told him to "get rid" of CSI. Because of the significance of the conversation, it is reasonable that Mr. Ferraro would recollect it. Furthermore, although Ryan was a generally credible witness, his denial of the making the remark about "kick[ing] CSI off the job" ("No need to" make such a remark) was a bit too glib and his demeanor while testifying about it was flippant. (Tr. 680.)

Sunrise Construction did not fire CSI from the 24 S. Morgan job. (Tr. 98.) Mr. Ferraro did not file a complaint with the NLRB about Local 13's picket of CSI at the job site. However, following the July 28 meeting, Mr. Ferraro decided to move CSI to working night hours as of July 29, 2008 so as not to "lose any more time on the job" because the job was already behind schedule due to the earlier strike. (Tr. 96-97.) Mr. Ferraro believed moving CSI off the day shift would make the picketers "go away" because there would no longer be "a non-union company supposedly on site . . . ." (Tr. 97-98.) Mr. Cruz communicated the schedule change to CSI's superintendent, Pietro Molfese. (Tr. 98, 133-34.) "Night" work meant work starting at 3:30 p.m. and ending around 8:30 or 9:00 p.m. (Tr. 179, 234-35.) However, as discussed below, the testimony about whether CSI employees worked days, nights or both in the period after July 28 was ultimately irreconcilable.

Neither Local 13 nor the Chicago Regional Council picketed any other Karpedium job site in the summer of 2008. (Tr. 125.) In the fall of 2008, Sunrise Construction contracted with CSI to do some additional clean-up and repair work at 24 S. Morgan. (Tr. 368.)

Local 13's knowledge of CSI's contract with Local 831 Ryan testified that he did not learn that CSI had a contract with Local 831 until August 2008.

(Tr. 75.) That testimony was credible. Plaintiffs presented no evidence that CSI showed its contract with Local 831 to Ryan or any of the defendants before August 19, except for Pietro Molfese's incredible testimony about his confrontation with Ryan. Molfese testified that on July 26, he gave the contract to one of the picketers from Welch Drywall and she read it, but that testimony was impeached by his deposition testimony in which he denied giving her the contract.*fn8

Although Mr. Ferraro testified that he told Ryan and Michael Sexton on July 28 that CSI had a union contract and pointed to Local 831's website, that is not the equivalent of showing Ryan an actual union contract. Furthermore, Mr. Ferraro could not recall when he actually saw CSI's contract with Local 831, raising a question about whether Mr. Ferraro's memory is correct about whether the discussion about Local 831 happened on July 28.

Supporting Ryan's credibility is the notable absence of any evidence by CSI about exactly when it entered into the contract with Local 831 or any testimony from Molfese about showing CSI's contract with Local 831 to Mr. Ferraro. The fact that the contract has a printed date of July 12, 2008 does not prove that it was entered into on that date. If CSI actually had a contract with Local 831 before the beginning of the picketing on July 26, and if Mr. Ferraro had actually seen such a contract by July 28, it is hard to understand why he or Molfese would not bring that to the attention of agents for Local 13 and the Regional Council immediately and demand that the picketing stop. On the contrary, Mr. Ferraro said that, on July 28, he ordered CSI to work nights so that there would not be a "non-union company supposedly" on the site. (Tr. 98.) It was more than three weeks later, August 19, when Molfese, by his own testimony (described below) came to the job site with theLocal 831 contract and tried to show the contract to Ryan.

The third labor dispute: Local 1185's picket for "area standards" By all accounts, the picketing against CSI continued until at least August 19, 2008, when a confrontation occurred at the job site between Molfese and Ryan that is the subject of Molfese's personal claims, as discussed further below. At some date thereafter, Local 13 stopped picketing at the 24 S. Morgan site, and, instead, Local 1185 began picketing against CSI at the 24 S. Morgan site for "area standards."*fn9 Plaintiffs' complaint originally alleged damages against Local 1185 for that picketing, which plaintiffs alleged began on September 5, 2008. (Compl. ¶¶ 45- 50.) According to the complaint (which Molfese verified), in September 2008, CSI was "re-scheduled not to work" because of that picket. (Compl. ¶ 50.) Because Local 1185 was dismissed as a defendant, CSI's dispute with Local 1185 and any problems or costs related to it are not at issue in this case.

Therefore, any potential damages that CSI might be awarded in this case because of the picketing stopped when Local 13's picketing stopped and Local 1185's began. But the testimony was inconsistent about when that happened. Ryan and Ed Sexton testified that, after they became aware on August 19 of CSI's claim that it had a union contract, the Local 13 picket against CSI ended. (Tr. 603, 627, 680, 685.) Ryan, Ed Sexton, and Mr. Jaros testified that on the following day, August 20, the picketing by Local 1185 began at the 24 S. Morgan site for "area standards."(Tr. 594-95, 627, 681-83.) However, remuneration forms submitted by three Local 13 picketers, Joseph Jaros, Clarence Lembke, and a third person whose name is illegible, which were signed by Ryan, show that Local 13 sought reimbursement from Chicago Regional Council for picketing on dates through August 29, 2008. (Pls.' Exs. 14-16.)

The only witness CSI presented on this point was Rocco Molfese (Molfese's son), who was called only in rebuttal. He testified that he observed the picketing against CSI continue past August 19 and that it took place every weekday until September 5, 2008, when the vests the picketers wore changed to read "1185" and on strike for "area standards." (Tr. 761-65.)

For reasons explained below, it is unnecessary to resolve this dispute other than to conclude that no later than September 5, 2008, the picketing by Local 13 stopped, and any damages allegedly incurred by CSI as a ...


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