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Ltd. v. Unite Here Local 1

United States District Court, N.D. Illinois, Eastern Division

April 8, 2013

520 SOUTH MICHIGAN AVENUE ASSOCIATES LTD d/b/a THE CONGRESS PLAZA HOTEL & CONVENTION CENTER, Plaintiff,
v.
UNITE HERE LOCAL 1, Defendant

For 520 South Michigan Avenue Associates, Ltd., doing business as The Congress Plaza Hotel & Convention Center, Plaintiff: Peter W. Andjelkovich, LEAD ATTORNEY, Bradley J. Wartman, Peter Andjelkovich & Associates, Chicago, IL.

For Unite Here, Local 1, Defendant: N. Elizabeth Reynolds, LEAD ATTORNEY, Jason Andrew McGaughy, Allison, Slutsky & Kennedy, P.C., Chicago, IL.

OPINION

John J. Tharp, Jr., United States District Judge.

Page 864

MEMORANDUM OPINION AND ORDER

UNITE HERE Local 1 (the " Union" ), which represents many employees of Chicago's

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Congress Plaza Hotel (the " Hotel" ), is nearly a decade into a strike that began in June 2003. This lawsuit addresses a portion of that labor dispute. The Hotel complains that union members used unlawful methods to persuade Hotel customers to express solidarity with the Union by taking their lodging, convention, or special event business elsewhere. The Union's contacts with nine diverse organizations and businesses are currently at issue. The Union moves for summary judgment, arguing that its actions, insofar as they are supported by admissible evidence, were protected by the First Amendment and were not an unfair labor practice as a matter of law. For the reasons that follow, the motion is granted.

FACTS

The Court takes the following facts from the parties' statements of uncontested facts and the exhibits they submitted in support of their positions. In deciding on a motion for summary judgment, the Court " view[s] the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor." Trinity Homes LLC v. Ohio Ins. Co., 629 F.3d 653, 656 (7th Cir. 2010).

The Union represents a bargaining unit that consists of the Hotel's housekeeping, uniform services, and food and beverage workers. The Union began a strike at the Hotel on June 15, 2003, that continues to this day. Almost every day, the Union conducts picketing outside the Hotel and urges people not to enter the building.

Sometime in 2008, the Union expanded its strategy to include the deployment of " delegations" to visit or otherwise contact Hotel customers and individuals or organizations affiliated with customers--such as event attendees, speakers, exhibitors, board members, and others connected to decision-makers who contracted with the Hotel. The Union's strategy was to leverage consumer pressure to force the Hotel to reconsider its positions in the labor dispute. The Union developed a formal training protocol for members of the delegations, which numbered from two to 10 people and included striking employees, Union staff members, and other volunteers or supporters from the community. The protocol called for the delegations to (1) " get in the door" ; (2) introduce the members of the delegation and explain the purpose of the visit; (3) tell the personal stories of one or more striking employees; and (4) make a request for specific action, such as to stop doing business with the Hotel, to call someone else and urge them not to patronize the Hotel, or to sign a pledge of support for the Union. Sometimes the delegations left packets of written information about the strike. The delegations visited Hotel customers and secondaries on both public and private property. By January 2009, the Union was deploying as many as 10 to 15 delegations per day in connection with the Hotel strike; in one five-month period, the Union sent out more than 500 delegations. The ones that sparked this lawsuit (and remain in the case) are summarized below.

a. Ag Lab

The National Center for Agricultural Utilization Research (NCAUR or " AgLab" ) contracted with the Hotel to hold a conference there in April 2005. To dissuade it from doing so, the Union unsuccessfully wrote letters and telephoned NCAUR asking it to cancel the contract. Then, it very publicly delivered what the Union called a " cow pie valentine" to AgLab offices in Peoria, Illinois. On February 10, 2005, a five-member delegation arrived at the office in Peoria and handed the receptionist a heart-shaped candy box filled with dry cow manure. The delegation

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asked the receptionist to deliver it to the NCAUR meeting planner and say it was from the Union. The Union had announced its plans with a press release days earlier, and news media outlets accompanied the delegation when it delivered the " valentine." The press release stated that NCAUR's plan to cross the Union's picket line would " hurt [the Union's] efforts to win back quality healthcare." (The Union and the Hotel disagree about what the Union intended the " valentine" to accomplish.) Word of the stunt got back to Chicago, and " people were talking about it all over the hotel."

NCAUR did not cancel its contract, which included a block of 190 " room nights" from April 10 to 13, 2005. It held the conference as planned at the Hotel. However, the entire room block that had been reserved was not booked by individual attendees, who were responsible for making their own arrangements. The Hotel says that for the two days of the convention, there was a less-than-75% booking rate. The Hotel attributes the " reduced anticipated bookings" to the cow-manure stunt and the attendant publicity.

b. Chicago International Film Festival

Cinema/Chicago, which sponsors the Chicago International Film Festival, agreed to provide 100 room nights for the annual festival in 2005. A Union official wrote to organizers and participants in the festival, asking that they cancel the room block reservation and stating: " It is not unlikely that strikers and supporters might be present outside the Chicago Theater on Oct. 6 during the opening gala in order to publicize this injustice with leaflets and bullhorns."

Sophia Wong Boccio of Cinema/Chicago was concerned about " negative publicity" and " embarrassment to the Film Festival." On September 29, 2005, Boccio sent a letter to the Hotel terminating the sponsorship agreement and canceling the reserved room block. This was primarily due to Boccio's fear of " something that might be bad" happening on the festival's opening night.

c. America's Next Top Model

Anisa Productions contracted with the Hotel to rent event space on September 5-8, 2008, to hold a casting call for the program " America's Next Top Model" (" ANTM" ). On September 3 and 4, Union Research Director Lars Negstad and Boycott Coordinator Jessica Lawlor sent emails to groups of 18 and 26 supporters requesting that they telephone and email executives of Cover Girl, which sponsors ANTM, and Proctor & Gamble (which owns Cover Girl), urging them to convince ANTM not to cross the Union's picket line and hold the casting call at the Hotel. The emails provided telephone numbers and email addresses for the executives. Negstad later reported to supporters that the Cover Girl executive's voice mail box was full, and urged them to keep emailing instead of calling.

On September 4, 2008, the Union sent a press release to Chicago media outlets declaring: " Union to picket Congress Hotel during 'America's Next Top Model.'" The statement advised that picket signs would contain such colorful slogans as " American's Next Top Strikebreaker" and " Who wants a model covered in SCABS?"

Lawlor also contacted an official in a television performers' union, David Bresbis, and asked if he could assist with convincing ANTM to move its casting call. Bresbis in turn emailed Jeff Tobler or CW Network, which broadcasts ANTM, informing him of the " longstanding labor dispute at the Congress Hotel" and asking whether the casting call's venue had been changed. Bresbis informed Tobler that, through a third party, Bresbis had contacted

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Tyra Banks, the host of ANTM, and advised her of the labor dispute.

As of September 4, 2008, ANTM had decided not to hold its casting call at the Hotel; it selected another venue instead. The Union issued a press release stating that the event had been moved from the Hotel after its " coordinated extensive outreach" to affiliates of the program; it referred to " a swarm of concerned phone calls and emails."

d. Midwest Clinic

The Midwest Clinic is an annual band and orchestra conference for music educators. Before 2009, the Midwest Clinic was held at a Hilton hotel, with the Hotel serving as the secondary site for conference events and lodging of participants. Since 2009, the Midwest Clinic has been held at McCormick Place in Chicago.

The Union contacted Midwest Clinic Executive Director Kelly Jocius several times to persuade him not to use the Hotel during the Clinic. Sometime between 2004 and 2006, Mr. Jocius had a long, confrontational telephone call with Union Boycott Coordinator Teran Loeppke. During the animated call, both parties raised their voices. Loeppke insisted that the Clinic honor the strike and move its business from the Hotel.

Sometime thereafter, on three separate occasions, Loeppke came to the Midwest Clinic's office unannounced. Jocius refused to meet with him, and each time he was turned away at the door by staff members. Loeppke and Jocius exchanged emails that Jocius characterized as " more civil and professional" than the telephone call had been. In 2008, Jocius received three letters from the Union asking that Midwest Clinic not use the Hotel.

A mass email and telephone campaign also took place. The Union circulated a list of names and telephone numbers, including some home telephone numbers, of board members of Midwest Clinic and performers at the Clinic. It also sent letters, which typically included requests to call Mr. Jocius, to cancel contracts with the Hotel, and to honor the picket line at the Hotel. Mr. Jocius heard " in waves" from board members about the Union's outreach. The clinic's exhibitors and a presenter also heard from the Union with solicitations not to use the Hotel. Ultimately, in 2009, the Clinic was moved from the Hilton, and it no longer used the Hotel for overflow bookings.

e. International Housewares Association

The International Housewares Association (IHA) conducts an annual consumer housewares trade show at McCormick Place in Chicago. IHA contracted with the Hotel to reserve room blocks from 2008 to 2011, but in February 2009, it canceled the 2009 booking, and in April 2009, it canceled the bookings for 2010 and 2011. IHA Vice President of Trade Shows Mia Rampersand and Vice President of Finance Dean Kurtis were the IHA's decision makers when it came to canceling the contracts.

In early 2009, Union Boycott Coordinator Jessica Lawlor had telephoned Rampersand and urged her to cancel the IHA's agreement with the Hotel, but Rampersand refused. In that or another telephone call, Lawlor told Rampersand that the Union had gone to the offices of IHA members, retailers, a trade publication, and a restaurant, and advised her that " it would not stop" as long as the IHA had a contract with the Hotel. The Union did not picket at McCormick Place or any other location in connection with its efforts to compel the IHA to cease its business with Hotel. Nevertheless, Rampersand believes that Lawlor " mentioned the word 'picket'" during their conversation. Lawlor told Rampersand that the Union " had the ability" to go to McCormick Place.

Page 868

Lawlor also sent delegations to IHA's offices to ask IHA to cancel the room block. In late January or early February 2009, a delegation of five or six Union officials aggressively pushed their way through the IHA reception area into an office and refused to leave until the police were called. On a following visit, IHA president Brandl met with a delegation of about six to eight Union members or supporters in a cafeteria.

Lawlor organized a phone bank to call various individuals believed to be affiliated with the IHA show. These people were not responsible for IHA's contracts with the Hotel. Phone bankers made numerous calls to each individual on a list of names they were given and were directed to read off of a script that urged them to contact Phil Brandl and tell him that IHA should not use the Hotel; individuals were also asked not to stay at the Hotel themselves. Lawlor also sent in-person delegations to various people affiliated with the IHA show during early 2009, to ask them to call Brandl and ask him to cancel IHA's reserved room block at the Hotel.

One such individual was celebrity chef Rick Bayless, who conducts cooking demonstrations at the IHA show. The Union sent three delegations to his restaurant to try to speak to management before organizing a fourth that distributed fliers. The Union hoped to get a meeting with Bayless and persuade him to contact IHA officials about the use of the Hotel; it wanted to get his attention with the leaflet. The leaflet contained four quotations from health inspections of Bayless's restaurants that Lawlor had obtained through requests for public records. The quotations pertained to food safety violations without further context, for example, without noting that the restaurants had passed their health inspections and were in substantial compliance with the health code. The leaflet did not suggest or ask for a boycott of the restaurants. The leaflet did not explain the Union's dispute with the Hotel; it did provide the web address of the Union's Congress Hotel Strike website, without elaboration, and it clearly stated that the leaflet was " Produced by members of UNITE HERE Local 1." Bayless reacted with " horror" to the leaflets and said that publicizing food safety violations " could possibly hurt" the restaurants. He alerted IHA and faxed the leaflet to them; on the same day, IHA informed Lawlor that it had canceled its 2009 contract with the Hotel.

Rampersand and Kurtis both testified that they canceled 2009 booking because of the Union's activities. Rampersand believed that the Union was " harassing" IHA and the participants in its housewares show. Kurtis was concerned that the Union's activities would escalate to picketing exhibitors.

At the time they canceled the 2009 contract, Kurtis and Rampersand were also aware that a Union delegation had gone to the headquarters of Ace Hardware in Oak Brook and requested that Ace solicit IHA to cancel its contract with the Hotel. Kurtis recalled being aware of several unidentified exhibitors, as well as an IHA board member, and one potential attendee. Both were aware of the Bayless incident.

There are numerous other examples of delegations at other businesses or organizations with a connection to the IHA show; however, the Union has cited testimony to the effect that those involved in the decision to cancel IHA's contract with the Hotel were not aware of these incidents before making the decision. The Hotel does not rebut this ...


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