The opinion of the court was delivered by: PIERCE
This litigation is a private antitrust action. The plaintiff, Harlem River Consumers Cooperative, Inc. [the Co-op], which operates a retail food market, has sued thirty-eight defendants,
involved with various facets of the food industry, charging them with conspiring together in an attempt to drive the Co-op out of business, in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2.
As will be described more fully below, the plaintiff has charged that certain defendants contrived to instigate a strike among the plaintiff's employees which resulted in a picket line being placed in front of the plaintiff's store. The other defendants are alleged to have used or been coerced into using what plaintiff describes as this "sham" labor dispute as a pretext for refusing to supply products and services to the Co-op, in furtherance of the alleged conspiracy.
On August 11-13, 1975, after the plaintiff rested its case, the Court heard argument on motions by all defendants for a directed verdict and for dismissal of the action pursuant to Rules 41(b) and 50(a), Fed. R. Civ. P. On August 27, 1975, the Court rendered an oral decision concluding that, as to thirty-five of the thirty-eight defendants, the motions were to be granted. The instant written opinion embodies, in final form, the decision announced from the bench.
History of the Litigation
Plaintiff filed this action on September 23, 1970, seeking injunctive relief and treble damages against the defendants. On October 8, 1970, plaintiff moved for a preliminary injunction against all of the defendants except certain retail grocery stores. The district court decided to bifurcate those preliminary proceedings, pursuant to Rule 42(b), Fed. R. Civ. P., and after a six-day hearing issued a preliminary injunction, dated November 25, 1970, against ten of the defendants,
directing, inter alia, the cessation of the picketing of the plaintiff's premises. Upon the representation of the remaining supplier defendants, at a subsequent hearing on November 17, 1970, that they were willing to make deliveries and provide service to the Co-op as they had before the strike, no injunction was issued against the supplier defendants.
Plaintiff and the defendants then undertook what has proven to be the lengthy and sometimes tortuous task of litigating this multifaceted case.
The previous opinions of this Court speak for themselves in detailing the various pre-trial hurdles which have been encountered in the effort to bring this case to trial.
There is no need to review these matters here. It suffices to say that there comes a time in the handling of a complex case when it simply becomes necessary to move beyond pre-trial proceedings to the trial of the action itself. See Syracuse Broadcasting Corp. v. Newhouse, 295 F.2d 269, 277 (2d Cir. 1961). In the opinion of this Court that point arrived for this case after the Court's rulings on the various summary judgment motions of the defendants.
Accordingly, beginning May 1, 1975 and continuing concurrently with the jury selection process and the beginnings of the trial, the Court held a series of conferences with all counsel to address such substantive and procedural issues as the use which could be made during the trial of prior court and administrative proceedings related to various facets of the Co-op's struggles, the definition of the conspiracy period as alleged in the complaint, the admissibility of pre- and post-conspiracy period evidence, and whether the action could be allowed to proceed against certain defendants who had filed petitions in bankruptcy.
With these matters determined or under consideration, the plaintiff commenced the presentation of its evidence on May 20, 1975.
On August 8, 1975, with all aspects of the direct case but the reading of three depositions completed, the parties agreed that the plaintiff would rest its case. The three depositions were submitted to the Court along with written objections by the defendants with the understanding of all that the Court would consider the depositions on these motions after making written rulings on the objections. Further, all parties agreed that in the event that some or all of the motions were denied, the plaintiff could reopen its direct case for the limited purpose of reading these depositions to the jury. Thereafter, the Court devoted three days to hearing the arguments of counsel on motions to strike evidence and substantive motions directed to the sufficiency of the evidence. The Court then took the case under advisement.
The standards by which the motions for a directed verdict must be judged are well known. The Court is "bound to view the evidence in the light most favorable to [the Co-op] and to give it the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn." Continental Ore Co. v. Union Carbide and Carbon Corp., 370 U.S. 690, 696, 8 L. Ed. 2d 777, 82 S. Ct. 1404 (1962). Further, particularly in a case such as this where the plaintiff relies on circumstantial evidence to support a finding of the conspiracy charged, the Court must consider all the evidence as a whole, without compartmentalizing or isolating the facts adduced as to one or another of the defendants or as to a particular aspect of the case. See United Shoppers Exclusive v. Broadway-Hale Stores, Inc., (N.D. Cal. 1965). Of course the Court may not judge the credibility of witnesses in addressing these motions. It is for the jury to weigh conflicting evidence and determine credibility. See Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970); Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en banc).
If, after considering the evidence in accordance with these standards, the Court finds that "there can be but one conclusion as to the verdict that reasonable men could have reached" if presented with the evidence, Simblest v. Maynard, supra, and that that conclusion is opposed to a finding of liability, then it is the duty of the Court to direct a verdict in favor of the prevailing defendant. See Baltimore & O.R.R. v. Groeger, 266 U.S. 521, 524, 69 L. Ed. 419, 45 S. Ct. 169 (1925); Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 661 (9th Cir.), cert. denied, 375 U.S. 922, 11 L. Ed. 2d 165, 84 S. Ct. 267 (1963).
Not unexpectedly for an antitrust case, the plaintiff here has relied almost exclusively on indirect and circumstantial evidence for the proof of its case. The Court recognizes that conspiracies are rarely susceptible of direct proof. See Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 612, 58 L. Ed. 1490, 34 S. Ct. 951 (1914). Consequently, the Court has been liberal in allowing plaintiff to introduce evidence on the representation of its counsel that the relevance thereof would become apparent when the overall picture emerged. The task before the Court, now that plaintiff has rested, is to assess this overall picture to determine as to each defendant whether plaintiff has demonstrated the existence of evidence from which a jury could reasonably conclude that the elements of a conspiracy in violation of the antitrust laws have been proven.
The evidence introduced thus far in the trial, viewed in the light most favorable to the plaintiff, is as follows:
Background. The plaintiff Co-op was incorporated on February 15, 1967. (Ex. 2) An effort to sell shares began prior to the date of incorporation under the direction of the Co-op's first coordinator, Benjamin Armstead. (Allison, 7/24) The sales program under Armstead appears to have been sluggish. In June, 1967, however, the promotional work was placed in new hands and proceeded with markedly improved results. Volunteers were organized to promote the sale of shares throughout the Harlem area and beyond with the promise that the Co-op would sell quality food at a fair price. Clara Allison, among others, sold the shares from the Co-op office. (Allison 7/28) Eventually, by April of 1969, the Co-op had 4,300 shareholders.
During the period before the store opened, the Co-op received its principal organizational and training aid by means of a contract with Supermarkets General Corporation (SGC). By a contract entered into December 12, 1967 (Ex. 87), the Co-op obtained the services of three SGC individuals -- Robert Blythe, Robert Higgins, and Leon Strauss. Blythe and Higgins, in particular, played a major role in selecting and training the Co-op's personnel and preparing for the store's opening. The plaintiff also received some aid from certain companies including Campbell's and from agencies such as the New York City Council for Economic Development. The defendant Mid-Eastern furnished some general promotional materials and films, but by and large the Co-op developed its own promotional literature. Furthermore, despite requests, the Co-op received little or no help from the Federation of Cooperatives or the New York State Food Merchants Association (NYSFMA). (Hildebrand 6/18) It must be noted as to the latter that the plaintiff was unable or unwilling to meet the organization's request for a consulting fee. (Hildebrand 6/18)
June 4, 1968 -- April 21, 1969. The Co-op opened its doors for business on June 4, 1968. Sales for the opening week were over $40,000 (Ex. 30A) and the opening was reported in the general and trade presses as an event of some significance. The Co-op was said to be an unusual store for the Harlem area and one which was capable of doing $1.8-2 million worth of business annually. (Exs. 137-148).
After the opening week, as is often the case (Blythe 5/21), the Co-op's sales dropped off, reaching the $40,000 level again only once, during Christmas week of 1968. (Ex. 30dd). During this period the Co-op experienced certain problems concerning personnel and other matters which necessitated continued training and monitoring by the SGC consultants (Higgins). Further, it appears that in the case of the Co-op, the policy of selling "quality food at a fair price" in fact often resulted in the acceptance of the manufacturer's suggested price on pre-priced items and in a mark-up which was, with the exception of a period of a few weeks, actually higher than that which one of plaintiff's expert witnesses described as the industry norm. (Blythe 5/21)
Nevertheless, despite certain difficulties, one could fairly conclude from the evidence introduced that the Co-op operated successfully from June 4, 1968 until April 19, 1969. In fact, plaintiff's consultants, Blythe and Higgins, testified that by the end of 1968 the Co-op had enough money in the bank to expand and it appears that at least one organization sought to loan the Co-op money. It must be noted, with respect to the testimony regarding proposed expansion, that while at least one site was explored, it appears that no definitive decision was made about selecting a particular site during the relevant time period and plaintiff's consultant Blythe cautioned that even though, in his view, adequate capital for expansion was available, the Co-op should be wary of expanding without first developing a sufficient reservoir of trained personnel. (Blythe 5/20) There is no evidence of any expansion discussions taking place later than December, 1968. With the exception of a mention in one news article (Ex. 140) there is no evidence that the previous discussions were made known to the trade or general public.
According to the plaintiff's complaint, it was at or about the time of the store opening that the conspiracy against it began. (Complaint para. 32) Before exploring the evidence with respect to this charge, it may be well to describe some of the persons and organizations which were active in the retail food industry in the Harlem area at the time the Co-op appeared.
Local 338. The Retail, Wholesale and Chain Store Food Employees Union, Local 338 (Local 338 or the Union) was the principal union representing food store employees in the Harlem area. The President of the Union at the time the Co-op commenced its business was Julius Sum. However, the affairs of the Union in Harlem were almost exclusively under the direction of Linwood Joseph Overton (Joseph Overton) who was the union's business agent for Harlem at that time and had been since 1944. (Sum 6/25) Julius Sum testified that Joe Overton had the power to sign contracts for Local 338 as long as they involved the Harlem area.
Also involved with the Union was Lawrence Joseph Overton (Lawrence Overton), Joe's brother. Lawrence Overton had been a union member for eighteen years, a section chairman, a member of the Union Welfare Board, and was a member of the Local 338 Executive Board from June, 1969 until at least July, 1970 at which time he submitted a letter of resignation. Leonard Faust (Faust), named in this action as a nondefendant alleged co-conspirator, was not a member of Local 338 in June, 1968, but had been from 1943 until April, 1968.
CCS. Co-ordinated Community Service, Inc. (CCS) was a promotional organization located in Harlem. The organization sponsored the products of its clients who were manufacturers of national brand products, to wit, White Rock, Borden's (milk and ice cream), ITT Continental Baking Co. (Hostess Cake and Wonder Bread), Ballantine Beer, Ehler's spices, and Sylvania light bulbs. (Exs. 199a, 200, 201a, 202, 203). CCS promoted these products in part by visiting stores, primarily in the Harlem area, with representatives of these companies. The purposes of those visits were twofold. Where the store owner already carried the client's products, the CCS representative would check the shelves and perhaps inquire about acquiring a preferred position or arranging a special promotion or display. Where the client's products were not being stocked, an effort would be made to encourage the store to carry the products. Sometimes the stores to be visited would be chosen by the client's sales personnel and at other times CCS would suggest stores to be visited.
The evidence shows that prior to 1966, CCS (or its predecessor) was owned by Lester Wolf, Harry Taxin, and Irving Hertz. In 1966, the corporation was purchased by Hulan Jack (Jack), Theodore Solomon (Solomon), Harry Rosenblum (Rosenblum), and L. Joseph Overton. (Ex. 394) The shares issued to L. Joseph Overton at the time of purchase were later cancelled and transferred to Emancipation March, Ltd. (EML) (Ex. 394), a corporation in which one could reasonably conclude Linwood Joseph Overton had an interest (Ex. 210), although certain documents were signed by Lawrence J. Overton on behalf of EML. (Exs. 211, 213, 214) Joseph Overton paid for the shares transferred to EML (Jack 6/12). Further, while a restrictive shareholder agreement dated February 11, 1966 was entered into by the parties (Ex. 211), a separate agreement of the same date was executed by them allowing Emancipation March, Ltd. to transfer its shares to L. Joseph Overton without the consent of Solomon, Rosenblum, and Jack. Thereafter, CCS checks were issued to L. Joseph Overton (Ex. 347e) and to a Diner's Club account which a jury could reasonably find belonged to Linwood Joseph Overton (Ex. 347f; Baken, 6/17) which equalled in total amount the dividend checks paid to CCS principals Jack (Ex. 347), Solomon (Ex. 347b), and Rosenblum (Ex. 347a). There is also evidence from which it could be concluded that L. Joseph Overton was initially elected chairman of the CCS Board of Directors (Ex. 193). While there may be some question as to whether the L. Joseph Overton referred to in these various documents was Lawrence or Joseph, the evidence is such that a jury could reasonably find that Linwood Joseph Overton was in effect a 25% owner of CCS, or that he was at least intimately connected with CCS and had a financial stake in its operations.
Lawrence Overton was also connected with CCS. He was a CCS employee and received salary checks from it at the same time that he was active in union activities (Ex. 347c). He served as secretary and Executive Director of CCS. (Lawrence Overton, 6/12). He was also the owner of three grocery stores in Harlem.
As executive director of CCS it was within the scope of Lawrence Overton's duties to conduct the store visits described above, to make reports to the CCS clients, and to meet with the clients to discuss CCS's performance. (Lawrence Overton, 6/12)
Faust was also connected with CCS, working as a field representative and receiving salary checks from CCS between June, 1968 and July, 1970. (Faust, 6/26; Ex. 347d) He succeeded Lawrence Overton as executive director in 1969. (Faust, 6/26)
Thus, the evidence shows an inter-relationship between CCS and the two Overtons and Faust which gave this independent marketing agency a distinctly union-oriented cast. Further, there is evidence from which one could reasonably conclude that CCS used its union connections and influence to its advantage in that clients were aware of the presence of Joseph Overton in the background and believed his union contacts would be beneficial in promoting CCS-sponsored products in the Harlem area. (Cooke, 6/24; Doherty, 6/23) The evidence is clear that the CCS promotional work was not always successful, even in stores where the clerks were 338 members. (Larry Overton, 6/12) Nevertheless, one could also reasonably conclude from the evidence that CCS business improved considerably after the new people took over in 1966, even though according to one of the principals, the basic methods of promoting products did not change. (Solomon dep. at 31)
AGH. Associated Grocers of Harlem, Inc. (AGH) was a trade association made up of the owners of 80-90 Harlem grocery stores. It provided various services for its members, including the negotiation of a union contract with Local 338. (Solomon dep. at 7)
Solomon, of CCS, was executive secretary of AGH when the Co-op opened and had been since 1945. (Solomon dep. at 7) When Solomon visited AGH stores, he would discuss the CCS client's products. Further, there is evidence that CCS products were discussed and promoted at AGH meetings and that AGH members received a monthly rebate from CCS in return for promotional efforts on behalf of the products. In fact, according to Kaufman's deposition testimony, AGH would have been unable to continue operations without these payments.
It is around these organizations -- CCS, AGH, and Local 338 -- and the individuals involved in them that plaintiff claims the conspiracy was formed with the aim of either forcing the plaintiff to do business in a certain manner -- i.e., with its managers and assistant managers included in the coverage of a Local 338 contract -- or of putting the plaintiff's store out of business.
There were, of course, other forces present within the industry at this time including the various product manufacturers and distributors, some of whom are defendants in this action; operators of stores in what plaintiff has defined as the Harlem target area, such as Fedco, Sloan's and Shopwell; and those with other interests in the retail food market in that area. The evidence as to their role in these events will be described later.
Beginning at about the time the plaintiff's supermarket opened, CCS personnel made various overtures to the plaintiff in an effort to persuade it to feature the products of the CCS clients. One of plaintiff's SGC consultants, Blythe, testified that in May, June, or July of 1968, Linwood Joseph Overton approached him and told him the Co-op was carrying the wrong products. According to Blythe, Overton specifically mentioned that the store should be stocking White Rock soda and Ehler's spices. (Blythe, 7/23) Prior to the Co-op's opening, Hulan Jack, the CCS President, sent a letter to Mrs. Cora Walker, coordinator and legal counsel for the Co-op, asking for the opportunity to meet with the Co-op board to discuss placing CCS-sponsored products in the store. (Ex. 188) There is no evidence that such a meeting was ever arranged and Jack turned the promotional efforts with respect to the CCS-sponsored products over to Faust and Lawrence Overton who made their own efforts. (Solomon dep. at 130)
The evidence indicates that during 1968 at least two incidents occurred concerning the stocking by plaintiff of particular CCS-sponsored products, those of ITT Continental and White Rock. Charles Cooke of ITT Continental testified that in May of 1968 he went to the plaintiff's store along with Harry Smalls, the company's merchandising representative, who spoke to someone in the store. Cooke personally made no arrangements to tape the plaintiff's bread shelves, that is, to mark out the portions of the shelves where his company's products would be displayed. According to the testimony of Leonard Faust, of CCS, Faust later went to the store and made arrangements to allow Smalls to tape the Co-op's breadstand for ITT Continental's Wonder Bread.
Smalls was later directed by plaintiff to remove the taping and did so. (Faust, 6/26)
The second "incident" occurred in the fall of 1968 when plaintiff's consultant, Robert Blythe, noticed that White Rock beverages were over-stocked in the store and reported this fact to the appropriate store committee. (Blythe, 5/20) Blythe testified that White Rock had not been in the store when it opened, but that he could not be sure whether or not it had been authorized by the appropriate store committee in the fall of 1968. There was no testimony as to whether any complaint was ever made or any action taken with respect to White Rock.
During this same period of time, the fall of 1968, Local 338 began to negotiate with the plaintiff with respect to the signing of a union contract on behalf of the plaintiff's employees. In November and December of 1968, a series of meetings were held, attended by both Joseph and Lawrence Overton who negotiated on behalf of the union. (Exs. 624-627) Leonard Faust, who was not a member of Local 338 at this time, testified that he attended one of these meetings but only as an observer who happened to be present. (Faust, 6/26) However, there is evidence from which it would be reasonable to conclude that Faust was present at the four sessions which took place during this two month period. (Exs. 624-627) Therefore, in the Court's view, the evidence could support a finding that during this time period, these three CCS-affiliated persons were regularly -- and, in the case of the Overtons, importantly -- involved in the union's negotiations with the plaintiff Co-op.
Events moved quickly after December 1968. On December 20, 1968 an agreement was signed between persons purporting to represent the Co-op and representatives of the Union. The Co-op representatives agreed to convene a board meeting "for the purpose of ratification of the union's contract." In return, the Union representatives agreed there would be "no strikes, no picketing, and no slow up" by the employees. (Ex. 396)
Signing this agreement for the Co-op were Florence Rice, Chairman of the Board and President, Courtney Brown, a board member, and Frank Anastasio, of the Mid-Eastern Co-op; signing for the Union were the two Overtons. Plaintiff's witnesses testified that none of those persons signing the agreement for the Co-op had been authorized by the Board to do so, and further, that none of them reported to the Board about either the meeting or the agreement.
No Local 338 contract was signed within the time specified in the December 20, 1968 agreement. However, various facets of the proposed union contract were discussed at Board meetings in January, 1969. (Higgins, 6/2) Then, at a meeting with Co-op representatives on January 20, 1969, at which both Overtons again were present, a document purporting to be a contract between the Co-op and the Union was signed. Plaintiff's witnesses, including Board members who claimed to have first heard about the signing of the contract when it was reported in the newspaper, testified, however, that the Board had not authorized anyone to sign a contract for the Co-op.
On February 23, 1969, a meeting of the Co-op's shareholders was held. The shareholders voted out the old Board of Directors in its entirety, voted in a new Board, and voted "to invalidate the contract that was signed by the old Board." (Strong, 6/3; Local 338 Ex. R-1)
Following the February 23, 1969 shareholders' meeting, several meetings were held between the Co-op's employees and the Co-op personnel committee at which petitions were presented and grievances were aired. (Local 338 Ex. T) A chaotic meeting at which Joseph Overton was present, was held on April 19, 1969. No resolution was reached on the various issues about which the employees and the Co-op were in disagreement. Another meeting, chaired by Marjorie Strong, who had been elected to plaintiff's Board of Directors on February 23, 1969, was held on Sunday, April 20, 1969. At that meeting Strong told the employees that the Board would take its next step with respect to a contract as soon as it was able to do so. She asked the employees to bear with the Board. Strong asked one employee, Vivian Dixon, if the employees were going to strike and Dixon said "No." (Strong, 6/4) The next day, April 21, 1969, the employees went out on strike.
April 21, 1969 -- September 23, 1970
With the start of the strike, the plaintiff dispatched Mrs. Venus Harris (Harris), from her position as a staff worker in the Co-op office to the store to serve as store co-ordinator and do whatever she could to keep the store open. Mrs. Harris testified that her principal responsibility in this regard was to get merchandise for the store. According to her testimony, the Co-op still had plenty of customers. (Harris, 7/9) Mrs. Harris testified that in order to obtain merchandise, beginning in May, 1969, she called all of the Co-op's authorized suppliers, including, with one or two exceptions, the supplier-defendants in this action.
Telescoped considerably, the essence of Mrs. Harris' testimony and that of Mrs. Sadie Badon (Badon), who also worked as co-ordinator for several months during the strike, was that calls were made regularly to each supplier between May of 1969 and May of 1970 asking for deliveries to the Co-op, or deliveries at some other place such as the Co-op office or to a street corner, or for permission to pick up the merchandise at the supplier's warehouse or plant. In most instances, neither Harris nor Badon could remember to whom she spoke, or how many times she called, or exactly what she said, but each testified that for the most part, the defendant-suppliers did not take orders and that, in those few instances where they did, deliveries were not received. According to these witnesses, often the suppliers did not even give the caller a chance to place an order, once she had identified herself as calling from the Harlem Co-op. Those witnesses also testified that in an effort to get merchandise, the Co-op had rented a truck which was available to go "anywhere" for supplies, that volunteers used their cars to pick up groceries on street corners at night and bring them to the store, and that throughout this period the store had plenty of customers -- there was no consumer boycott of the store. (Allison, 7/23)
During this entire period, and indeed through September 23, 1970, while the picket line remained outside the plaintiff's store, the defendant-suppliers continued to sell to other stores which plaintiff describes as its competitors. There is no evidence that any of the suppliers stopped selling to other stores in the Harlem area during this time -- though there is also no evidence any other store had a picket line in front of it. The refusal of the various suppliers to sell to the plaintiff continued, despite the Co-op's efforts by means including a newspaper advertisement and a letter to suppliers, to inform the public and the suppliers of the Co-op's urgent need for goods and of the nature of the strike. (Ex. 486).
The conduct of the strike deserves some comment. While there is no direct evidence as to how the strike came about, the evidence at the end of the plaintiff's case is such that a jury could reasonably conclude it was called by Joseph Overton. He, himself, stated at his deposition that he "maintained" the strike, he had broad powers with respect to union affairs in Harlem (Sum, 6/25), and the Executive Board minutes of Local 338 indicated that the Union had backed Joseph Overton on this strike.
Joseph Overton himself was present at the strike scene about three days a week. Lawrence Overton also walked the line to a certain extent, at least between May, 1969 and October, 1969, and possibly through January, 1970. (Lawrence Overton, 6/16) Leonard Faust, although not a member of Local 338 at the time of the strike, also walked the picket line.
The evidence introduced on the plaintiff's case points to an overall picture of a "peaceful" and "harmonious" strike. This is not to say that it was not considered important by the Union. The strike, Local 338's first in twenty years, was well supported by the Union. According to Local 338's own records, the Union allocated $140,000 of its expenses between May, 1969 and December, 1970 to the Co-op strike. (Ex. 577) The expenses included rental of a mobile home which was parked in front of the store, was supplied with TV and air-conditioning, and which was used to provide the pickets with food, beverages, and a place to relax. The strike was well supplied with pickets, many of whom were not and had not ever been employees of the plaintiff. (Rosenblum) And, the fact is inescapable that the strike did last for nineteen months. Nevertheless, with the exception of two incidents testified to on cross-examination by Mrs. Allison -- neither involving a defendant in this action -- the plaintiff's evidence shows no violence occurring on the line with respect to either customers or suppliers. Lawrence Overton testified that he never saw a supplier threatened. (Lawrence Overton, 6/16) While Clara Allison said she often walked the pavement outside the store during the strike, she stated this was to serve as a "welcoming committee" and was not necessary to coax customers into the store or "to protect" them.
Negotiations aimed at settling the strike and arriving at an acceptable union contract were conducted during the course of the strike with the plaintiff being represented by Harold Young (Young), a labor lawyer retained by the Co-op in June, 1969. First a series of seven sessions were held at the Commodore Hotel in June and July of 1969. These were followed by three sessions with the Federal Mediation Service, contacted by Young, in August of 1969. After these sessions, there was a private meeting between Young and Cora Walker, representing the plaintiff, and Julius Sum and Joseph Overton, representing the Union. This meeting was followed in turn by the submission by the plaintiff of a final offer to the Union. The Union never responded to this final offer. (Young, 8/4)
During these discussions a number of different issues were raised and the positions of the parties were reflected in various written proposals. These issues included the length of the probationary or training period for new employees, the wage scales to be paid, payments by the Co-op to employee benefits programs, overtime pay, issues relating to the circumstances under which plaintiff could fire its employees, and whether or not managers and assistant managers would be covered by the Local 338 contract. (Local 338 Ex. Y-2; Linwood Joseph Overton Ex. G) During the course of these negotiations, in which Local 338 was represented by Joseph Overton and its attorney, Arthur Garfinkle, Overton offered to submit the issues to binding arbitration. Young testified that he advised the plaintiff against accepting arbitration since he did not believe in a third party writing a contract for either the union or management. (Young, 6/3) He testified further that it was his recollection that wages, benefits, and other economic matters were not major points of dispute by the end of the negotiating sessions. Finally, he testified that at the last negotiating session in November of 1969, the first meeting attended by Julius Sum since the beginning of the strike, Sum stated that he could not get Joseph Overton to accept certain terms in the contract; that this was Joe's area and that Joe was the person who was responsible for the negotiations. (Young, 6/3) Although Sum testified at trial that he had told Joseph Overton, Florence Rice, and Cora Walker that he would be willing to exempt the Co-op's managers from the contract if that would be necessary in order to settle the strike, there is no evidence that this offer, if made, was ever followed up in the negotiating sessions, at least not in terms of exempting these employees by position. Nor, is there evidence of any further negotiations after this November, 1969 meeting. One year later, plaintiff filed the present lawsuit.
Just as there was a background against which plaintiff made its entry into the food industry, there were a number of events which occurred during the alleged conspiracy period to which plaintiff attaches significance in its analysis of the evidence it has presented on its direct case. These can be noted at this point ...