The Coke Machine (31 page)

 

 

 

Back in Pittsburgh,
Dan Kovalik had closely followed the burgeoning use of ATCA, contacting Collingsworth in 2001 to ask for his help in bringing a case against Coke. Collingsworth was enthusiastic about the prospect, accompanying Kovalik to Colombia in May 2001 to gather testimony. The two filed suit almost immediately afterward, on July 20, 2001, against the two bottlers, Bebidas y Alimientos and Panamco, as well as Richard Kirby and his son Richard Kirby Kielland, Coca-Cola Colombia, and finally the Coca-Cola Company itself. All of them, it argued, had “hired, contracted with or otherwise directed paramilitary security forces that utilized extreme violence and murdered, tortured, unlawfully detained or otherwise silenced trade union leaders.”

The case was similar to those involving Unocal and ExxonMobil, Collingsworth and Kovalik argued, in that a U.S. company had aided and abetted violence for its own monetary gain—with one important twist. According to the union lawyers, even though Coke didn’t directly conspire with the paramilitary forces that perpetrated the violence, the company worked through its bottlers to do so, which—given the tight control Coke had over the bottlers in other areas—they argued amounted to the same thing.

“There is no way that Coke didn’t know that paramilitaries were infesting their bottling plants down there and killing union leaders,” says Collingsworth. “When the first guy is killed, you could say, ‘Oh my, what a surprise.’ When the second guy is killed, you say, ‘Oh geez, I hope that doesn’t happen again.’ Number three, number four, number eight. At some point you’ve got to say they knew it and they were willing to accept it as the cost of doing business.”

In addition to the bottlers’ agreements that spelled out in detail how they should produce and sell Coke products, the lawyers argued that the Coca-Cola Company’s quarter share in Panamco, and two seats on its board of directors, gave it direct control over the company. As for Bebidas, Coke had so much control it could block the Kirbys from selling it. A year after Gil’s murder, Kirby and his son Kirby Kielland told Colombian investigators, they had tried to sell, even lining up a potential buyer. There was only one problem. “I sought the permission from the international Coca-Cola Company to sell that company,” said Kirby Kielland, “a request that was denied. . . . We could sell the bottling plant, land, trucks, installation, etc., of the bottling plant in Urabá, but we could not guarantee that the franchise contract we have with Coca-Cola would be transferred.”

With that level of control over its bottlers, Collingsworth and Kovalik argued that the situation in Colombia was essentially no different from the one in Guatemala in the 1980s, when Coke intervened directly in Trotter’s franchise agreement after political pressure from the nuns when workers were murdered there. In this case, the lawyers argued that Coke could have curtailed the violence, or, in an extreme case, severed its bottling contract with any company in Colombia it felt was violating its international labor standards. If it didn’t, it was for the same reason that Chiquita stayed in the country for years while paying off the murderous AUC—it was simply making too much profit.

The Coca-Cola Company, of course, vehemently disagreed with that logic. As soon as the suit was filed, a spokesperson in Atlanta dismissed it out of hand, saying that “wherever we operate, we adhere to the highest ethical standards” (a somewhat empty statement, since the same spokesperson then averred that “the Coca-Cola Company does not . . . operate any bottling plants in Colombia”). Panamco and the Kirbys, meanwhile, didn’t deny that paramilitaries targeted workers but vehemently denied any association with them. “You don’t use them, they use you,” said Richard Kirby. “One day they showed up at the plant. They shut it down, put everybody up against the wall, and started shooting. Now it has been turned around so that it’s our fault.”

The two sides first appeared in Miami for a hearing on June 6, 2002. Coke’s lawyer, Marco Jiménez, began by arguing that the acts of violence allegedly committed by the company were not war crimes, and therefore had no business being hauled into U.S. courts as violations of international law. “For all we know [the paramilitaries were] moonlighting to go and take violence or action against union members not for any purpose related to the war, but for a corporate campaign of terror in order to get rid of a union.” It hardly made a difference, responded Collingsworth, whether the paramilitaries were furthering their war against guerrillas or whether the company was simply taking advantage of the war to get rid of the union. “The fact that this war is going on and that leftist trade union leaders can be killed with impunity allowed this to happen, and Coke and Panamco and the Kirby defendants stepped in to take advantage of that.”

As for the Coca-Cola Company itself, Coke’s lawyer argued that it shouldn’t even be there—since its bottler agreement with the franchise didn’t control labor relations anyway. Frustrated by a lack of specifics about the actual agreement, the judge cut to the chase: “Shouldn’t I have a copy of that?”

“I would like to see one myself,” interjected Collingsworth.

At the judge’s request, Jiménez said that Coke could furnish the bottlers’ agreements with Panamco and Bebidas within a few days.

“Try to get here before five o’clock tomorrow,” concluded the judge, calling an end to the hearing. When Coke’s lawyers came back to the court, however, they claimed they didn’t have time to translate the exact agreements between the company and the bottlers in Colombia. In its place, they submitted a sample bottlers’ agreement, a boilerplate document representing the kinds of agreements it had with its bottlers all over the world.

Even as
the judge deliberated, SINALTRAINAL received news of another murder in Colombia, when Adolfo de Jesús Múnera was shot dead on the doorstep of his mother’s house in the northern seaport city of Barranquilla. Branded as a guerrilla after organizing a successful strike against a Panamco plant, he had come out of hiding for only a brief time to see his family when the paramilitaries caught up with him. It was a brutal reminder, if one was needed, that the workers at the Coca-Cola plants in Colombia still faced daily threats of violence.

In Miami, meanwhile, a new judge had been put on the Coke case: José Martínez. Known for his conservative opinions and his off-the-cuff style, he pleased no one with his ruling in March 2003. Essentially, Judge Martínez found that Gil’s murder wasn’t a war crime, since it hadn’t happened during an open battle—however, it was still a violation of international law given the Colombian government’s close ties to paramilitary forces. Score one for the union.

At the same time, he ruled that the sample bottlers’ agreement backed up Coke’s claims that it had no control over the bottlers. “Nothing in the agreement gives Coke the right, the obligation, much less the duty . . . to control the labor practices or ensure employees’ security at Bebidas,” the judge wrote. Because of that, Martínez dismissed the Coca-Cola Company from the case, at the same time he kept in the local bottlers—Panamco, Bebidas, and the Kirbys.

As Collingsworth and Kovalik celebrated keeping the case alive, they privately fumed that the judge had prematurely dismissed Coke Atlanta without even looking at the actual bottling agreement—or at least giving them the ability to question the Colombian bottlers to see if there were any differences between their agreements and the sample agreement. Frustrated with the mixed ruling in the courts, Collingsworth and Kovalik immediately appealed the case against Coke Atlanta. Procedural rules, however, required them to wait until the case against the bottlers was finished before it could go forward—a process that could take any number of years, depending on how many motions the other side presented. “We needed to figure out a way that Coke sees delay as bad,” says Collingsworth. They found it—and so much more—in an aging labor activist by the name of Ray Rogers.

The attempt to hold Coke accountable in the United States might have died a slow death in fruitless hearings and procedural motions had it not been for Rogers, whom Coke eventually considered the biggest threat to its brand in more than a hundred years—and in some ways more serious than the fight over childhood obesity it was engaged in at the same time. The lawsuit might have made Coke listen, but it was Rogers’s tactics—brash and confrontational—that made Coke actively take steps to defend itself.

 

 

 

The contrast
between Coke’s gleaming headquarters towering over downtown Atlanta and the office from which Ray Rogers has launched his attack to bring down the giant could not be greater. The Manhattan Bridge runs directly outside the window of his ramshackle Brooklyn warehouse space, drowning out all conversation every few minutes as the subway rattles noisily overhead. The dimly lit space overflows with file cabinets piled high with flyers, books, and DVDs, and the air is musty with the smell of the office’s full-time resident, a long-haired crossbreed cat named Melvin.

Sitting amid the confusion this Saturday morning, Rogers is wearing a navy blue sweatshirt and matching sweatpants, as if he’s just returned from the gym. At age sixty-five, he has a shock of white hair and the physique of a longshoreman, a fact he attributes to his earliest education as an activist. “One of the best things to happen to me was when I was beat up in the third grade,” he says. After the incident, he took up weight-lifting and boxing, and the next time someone picked a fight with him, he gave as good as he got. “I never liked the bully syndrome,” he says. Only these days, he’s the one picking fights—as a self-described corporate-thug buster. “There is tremendous imbalance of power, with corporations having far too much of it,” he says. “What we want to do is equalize that balance.”

Rather than use legislation or the courts, however, Rogers’s favored tactics have been loud and contentious activist campaigns that target companies’ financial connections and corporate image. In 2003, he was gearing up for his most ambitious campaign yet—an attempt to take on ExxonMobil over its failure to pay for the
Exxon Valdez
oil spill. Knowing Collingsworth had himself sued ExxonMobil in the past, he sent him an e-mail asking for help. Instead, Collingsworth called him with a very different proposal: developing a campaign against Coke. “Look, we’ve got a very serious life-and-death situation,” he said. “But we don’t have any money.” Rogers didn’t hesitate. He knew that he couldn’t build a campaign against ExxonMobil without a boatload of cash. But Coke was different. “I said, you know, we could really try to build from scratch. There are some good elements that make it vulnerable.”

Rogers should know. He coined the term “corporate campaign,” now in common usage among activists, back in the late 1970s. The son of two union factory workers, he began working as a union organizer after college, including a stint with César Chávez’s Farm Workers Association, whose members popularized the idea of product boycotts to pressure agriculture companies. In 1976, Rogers was working with the Amalgamated Clothing and Textile Workers Union (ACTWU) in their fight to unionize at North Carolina textile giant J. P. Stevens. He quickly ruled out a boycott, since few of the company’s products were sold retail. At a loss one day, he drew a big circle in the middle of a chart and said, “That’s J. P. Stevens.” Then, getting more and more excited, he began drawing arrows representing all of its business and financial interests. With some research, he developed a list of banking and insurance companies, each with interlocking members on their boards of directors, who could all be subject to personal pressure.

He launched his new “corporate campaign” with a big punch at the company’s 1977 shareholder meeting, when six hundred textile workers attended, bringing the meeting to a standstill as one by one they stood up to denounce the company, threatening that anyone involved with them be held accountable. Thus putting them on notice, Rogers moved against one bank where two Stevens board members served as directors, threatening to pull out millions of dollars of union money if it didn’t dump the two executives. The bank blinked, and the two directors stepped down. Only emboldened, Rogers moved against insurance giant MetLife, which did a huge business insuring union pension funds. In a panic over the prospect of negative publicity, MetLife’s president cleared his schedule to meet with the union, and eventually pressured Stevens to come to the bargaining table. The contract eventually signed on October 1980 ensured the unions’ rights to organize, but only if they agreed to never “engage in any ‘corporate campaign’ against the company.” Stevens employees dubbed it the “Ray Rogers clause.”

Business advocates spared no criticism for Rogers’s tactics, which they saw as little more than extortion. “Because Stevens can’t be beaten in a fair and square stand-up fight, Amalgamated has now resorted to terrorizing businessmen who do business with Stevens,” wrote
The Wall Street Journal
in an editorial. And they weren’t the only ones who took issue with Rogers. Some union leaders as well derided his scorched-earth tactics as overly confrontational, leaving little room to negotiate. Throughout the campaign, Rogers constantly ran afoul of the ACTWU’s own lawyers, who feared a countersuit on defamation charges. Rogers pushed ahead regardless, leaking information to the media behind the lawyers’ backs. “What the labor movement has done that I really criticize is they have turned more and more to lawyers to fight their battles,” he said at the time. “You can’t confront powerful institutions and expect to gain any meaningful concessions unless you’re backed by significant force and power yourself.”