by Mark Thomas
Councilman Monserrate’s 2004 report on the Colombian allegations found not only a distinct lack of action by The Coca-Cola Company and the bottlers but an alarming laissez-faire attitude to the charges levelled against them. Although the delegation was denied access to Coke’s bottling plants, Coca-Cola/FEMSA representatives Juan Manuel Alvarez and Juan Carlos Dominguez did meet with them. The delegation asked outright what they had done to investigate the allegations of ties between plant managers and paramilitaries. At first ‘these allegations were vigorously denied,’ the report states, but it continues, ‘Alvarez and Dominguez acknowledged that Coke officials had never undertaken any internal or external investigations into these assertions, nor into any of the hundreds of human rights violations suffered by the company’s workers.’7 That is, the Colombian bottlers themselves admit that these serious allegations were not taken seriously at all.
In his office Councilman Monserrate leans forward, puts one hand in between his legs, grasps the seat of the chair and hauls it closer to the table. ‘Isidro Gil was killed inside the bottling plant. That alone, to me, puts the onus on The Coca-Cola Company to say, “Hey we have a problem here and we have to deal with this problem one way or another”.’ He nods his head and stares at me, like he’s Robert De Niro. ‘There’s a causal relationship between the trade unionists’ deaths and working at Coca-Cola. So at the very least the company in Atlanta has an obligation to try and get to the bottom of it… Coca-Cola, just like any other major corporation, has a responsibility to be responsive corporate neighbours. You can’t just chalk it up to the politics of the country. You’re Coca-Cola and your logo is worldwide and it started here in America.’ His forefinger taps the table pointedly, as if the company is in the room and he is telling it off. ‘I mean we wouldn’t accept it in America. Could you imagine it if in a Coca-Cola plant in the USA, a worker was killed because he was part of the union - what kind of outrage there would be!’ His mobile phone rings, he looks at the caller’s number before pushing it to one side.
And as he sits with his back to the office wall which is covered in honorary degrees, citations, community awards and other such chaff of public office, it dawns on me that it’s the councilman’s patriotism that has put him in the fight with Coca-Cola. American patriotism often entwines love-of-country with love-of-country’s-economic-system. The councilman seems to fall into this category. ‘They do represent American Capitalism,’ he says in such a way as to put capital letters on both words. ‘And American Capitalism should never be about allowing your workers to be subject to violence or death because they are organising to defend their rights. What does it say about America?’
The Carepa murders were the starting point of a new saga of violence and intimidation for the union and though these were the worst cases they were a long way from being the only human rights violations. Sinaltrainal alleged a campaign of murders, intimidation and harassment against trade unionists working at Coke bottling plants across Colombia. But so far The Coca-Cola Company had shown little, if any, interest. So the union responded by doing three things: • They brought a lawsuit against The Coca-Cola Company and its Colombian bottlers in July 2001 in the USA
• They initiated a call for an international boycott of Coca-Cola products in 2003
• They went around the world telling as many people as they could about the first two things
This got the Company’s and the bottlers’ attention. So what did the company do? Was there finally a moment of corporate self-reflection and realisation? No, the bottlers took the union to court claiming that in bringing the US lawsuit the union had libelled and defamed them. I’ll repeat it for those of you who might be distracted picking your jaw from off the ground: the bottlers said the union had libelled them by taking them to court in the US. The bottlers even went after 500 million pesos in damages, until the case was dismissed as being without merit in 2004.8
Councilman Monserrate discussed the case with Coca-Cola FEMSA representatives in Colombia and he reports that one of the men ‘characterised these criminal charges as a “consequence” of the ACTA case [ie, the US lawsuit], which the delegation interpreted to mean that the company intended the charges as a direct reprisal.’9
So according to the bottlers, when the victims of violence and intimidation seek legal remedy they become criminals. Which I would suggest is akin to Union Carbide suing the inhabitants of Bhopal for inhaling their property without permission.
In his office in Queens the councilman is flabbergasted. ‘They were facing criminal charges because they filed a lawsuit in the US…this is outrageous! This is ridiculous, this is worse than ridiculous!’
He leans forward in his chair, furrows his brow and purses his lips. With the phone ringing and meetings stacking up around him the councilman has little time, so he seems to be gathering his thoughts and momentum for a final verbal assault. And it comes.
‘My question to The Coca-Cola Company,’ he pauses, ‘is: are you saying this is just the cost of doing business or is this the business that you are in? Which one is it, because either one is not a good choice. Right? Are you saying this is what Coca-Cola does by design or is it just complacent and allowing these things to happen? Either option is bad.’
THE ALIEN TORT CLAIMS ACT AND SINALTRAINAL’S CASE
The legislative spectrum in the USA varies from the progressive - their Freedom of Information Act, for example, is light years ahead of the UK - to the bizarre: in Alabama it is illegal to play dominoes on a Sunday. However, the Alien Tort Claims Act is one of those laws that actually elicits a genuine expression of ‘God Bless America’. This bit of legislation also deserves a further cheer, as President George W Bush tried to ‘reform’ it and failed. Which is always worthy of a quick hurrah!
The Act allows for companies and individuals to be taken to court in the USA for complicity in the crimes of kidnap, torture and murder committed outside of the USA. The Alien Tort Claims Act of 1789 was not widely known or used for that matter until the 1980s when the Filartiga family used the act to sue an Inspector General of Police from Paraguay, who was visiting the USA. They claimed he tortured and killed their seventeen-year-old son Joelito in Paraguay in retaliation for his father’s political activities. The courts found in favour of the Filartiga family and awarded them over $10 million and although the family never received any money they did finally get some form of justice. Their case had been denied in Paraguay and when national legal systems fail to deliver justice then one of the only avenues left is ATCA.
Increasingly, human rights’ advocates are using the Act to bring multinationals to the courts. In 1997 suit was filed against the oil company UNOCAL for alleged human rights abuses in the construction of its oil pipeline in Burma. In 2004 the company went for an out-of-court settlement, paying an undisclosed sum in damages.10
Another case relates to Chinese dissident Wang Xiaoning, who used a Yahoo! email account to post pro-democracy articles anonymously. Yahoo! complied with a request by the Chinese authorities for information on the account which lead to the arrest detention and torture of Wang, the lawsuit filed against the company claimed. Yahoo! also settled for an undisclosed sum out of court.11 Wang Xiaoning remains in custody serving a ten-year sentence.
Currently Firestone, Exxon, Shell and Wal-Mart have suits filed against them under the Alien Tort Claims Act.12
Pro-corporate lobby groups have sought to limit the scope of the law. Senator Dianne Feinstein introduced a bill to do just that. She said her bill was ‘designed to balance the interests of US companies and human rights groups.’ She also received $10,000 that same year for her re-election fund from Chevron13 - another company with a pending case against them. She shortly after had a change of heart, and withdrew her bill, ‘in light of concerns raised by human rights activists’.14
Given that the law can be applied to acts of kidnap, torture and murder, attempts to limit it or reduce the law’s effectiveness in order to balance US interests seems to imply
that US multinationals can’t compete in the global marketplace without the odd incident of complicity in murder, kidnap and torture.
SINALTRAINAL
July 2001, the United Steelworkers of America union and the International Labor Rights Fund filed an Alien Tort Claims Act (ATCA) suit on behalf of Sinaltrainal in the US Federal Court in Miami. The suit, claiming $500 million compensation for the plantiffs, alleges that the bottlers Panamerican Beverages (Panamco) and Bebidas y Alimento ‘contracted with or otherwise directed paramilitary security forces that utilised extreme violence and murdered, tortured, unlawfully detained or otherwise silenced trade union leaders,’ and that The Coca-Cola Company as the parent company bore indirect responsibility. The Colombian bottlers deny the charges.
The Coca-Cola Company argued the Colombian bottlers were separate companies and The Coca-Cola Company had no case to answer, stating ‘We deny any wrongdoing regarding human rights or any other unlawful activities in Colombia or anywhere else in the world’ adding that, ‘The Coca-Cola company do not own or operate any bottling plants in Colombia’.15
The union’s legal team argued The Coca-Cola Company exerted control over its bottlers by way of a legal agreement, called unimaginatively - ‘the bottlers’ agreement’. The argument went thus: The Coca-Cola Company licences the production of their drinks, they provide the syrup with which to make them and dictate the types of bottles, cans, industrial processes, adverts and promotions that the bottlers are to use. Thus they exert a degree of legal and economic control. Furthermore, The Coca-Cola Company not only possessed ‘a controlling 24 per cent interest’ in Panamco’s stock, but had two seats on Panamco’s Board.16 And whilst Bebidas y Alimentos, was owned by US citizen Richard Kirby, the union’s lawyer claimed that The Coca-Cola Company had such an influence on the company that it refused to agree to their request to sell the business in 1997.17
The case is being brought by the International Labor Rights Fund, supported by the United Steelworkers of America on a no-win no-fee basis (though this does not apply to any money settled on for the victims of violence).
March 2003 In an landmark ruling, District Court Judge Martinez ruled that the case against the bottlers Panamco and Bebidas y Alimentos can go ahead - the first time a US judge has allowed a case against a company for alleged human rights violations committed overseas to be heard under the ATCA.18
But the judge dismissed the case against The Coca-Cola Company on the grounds that the ‘bottlers’ agreement’ did not give the Company explicit control of labour issues over the bottler.
2006 District Court Judge Martinez reversed his previous decision and dismissed the case against the bottlers, now arguing that the case can’t be brought in the US because of ‘lack of...jurisdiction’.19
2008 Sinaltrainal lawyers submitted an appeal on both rulings on 31 March 200820 and a result is expected by the lawyers in 2009. If successful it means the case can be heard and Sinaltrainal will have their day in court in the USA with The Coca-Cola Company and their bottlers.
3.5
THE HUSH MONEY THAT DIDN’T STAY QUIET
‘We envisage a world in which …we improve lives in every community [we] touch.’
TCCC Strategic Vision1
Neville Isdell, the Chief Executive Officer (CEO) of The Coca-Cola Company from 2004-2008 and current chairman of the Board of Directors, is a tall balding man whose hair leans to ginger and is cropped short in the way soldiers and men of a certain age prefer. His body is trim but his face is baggy and craggy; its shape is that of Charlie Brown, the Peanuts cartoon character, but with the muscle tone of Keith Richards. In short, he looks like a typical upper management man - and I mean that in a pejorative sense. At the 2005 Annual Meeting of shareholders, Isdell stated, ‘there are no threats or attempts by management to attack or intimidate workers for being affiliated with a union or for being a union organiser or for being a union official.’ He went on to say that, ‘the people employed by our Colombian bottling partners work in facilities where their labor and human rights are respected and protected.’ It was a noteworthy event, as the CEO of the world’s most popular brand felt compelled to defend the company but the true significance of his robust public pronouncements can only be measured by what the company was doing in private.
In Colombia the pressure on Sinaltrainal was immense: the intimidation of workers by the paras was relentless, and the company’s drive to casualise the workforce was driving down union membership. ‘Every time we recruit new workers and members they get sacked,’ said Carlos Olaya, the union’s researcher. Indeed Councilman Monserrate’s delegation claimed that Coca-Cola FEMSA, ‘continually pressured workers to resign their union membership and their contractual guarantees. Since September 2003, they have pressured over 500 workers to give up their union contracts in exchange for a lump-sum payment.’2
Across the world the boycott met with mixed results. In Ireland Trinity College and the University of Dublin voted to ‘Kick Coke off Campus’ and refused to stock their products in student-run facilities. They were joined in the UK by Sussex, Manchester, Middlesex and the School of Oriental and African Studies, and in the USA by New York University and Michigan University. Even though the contracts with US universities are usually worth millions, kicking Coca-Cola off campuses is unlikely to dent the balance sheet of a company that made $5.98 billion profit last year.3 But the accompanying media attention and headlines like ‘Is Coke the new McDonald’s’4 in the Guardian, and The Nation calling Coke ‘the new Nike’5 must surely be part of the reason Coca-Cola has lost billions from their ‘brand value’. Something had to be done.
Publicly the company’s attitude to the Colombian issue was not hostile nor was it dismissive, it was both. Coke increasingly described the lawsuit brought by Sinaltrainal as an ‘out of date’ allegation6 or ‘an old story’.7 But this is not the full picture and behind the scenes the Company was involved in negotiations with the union to settle the case.
Timing is everything - from boiling an egg to having sex to deciding it is time to talk with the trade union taking your company to court. The US lawsuit was going nowhere fast but that all changed when District Court Judge Martinez dismissed the case against Coke’s bottlers on 4 October 2006. It might have looked as if the Coca-Cola system had been exonerated in court but the judge had opened up a world of potential pain for the Company. Crucially the court decision was not the hearing of the case itself, instead it was to decide if the US courts were the correct venue for the trial. And once District Court Judge Martinez decreed the US courts did not have jurisdiction this left the union lawyers free to launch their appeal, bringing The Coca-Cola Company back into the dock to face the whole thing one more time.
If the union lawyers were successful in their appeal then the case would go to full trial and The Coca-Cola Company would face the legal procedure of disclosure, forcing them to hand over internal documents detailing their relationship with the bottlers. I can’t speak for the company but I would imagine this prospect was about as appealing as syphilis. Timing is everything - and six weeks before Judge Martinez cleared the way for the union to get the Company back into court The Coca-Cola Company began to negotiate with Sinaltrainal on 19 August 2006.
When I asked The Coca-Cola Company about these talks they portrayed them as ‘fruitful and informative’8 as if remembering the biscuits served. They went on to describe the negotiations as ‘warm and buttery’, ‘sweet and moist’ and ‘chocolaty on the top’.
The purpose of the talks the Company said was ‘to assess whether a mediated resolution of the parties’ differences could be achieved.’9 In short they were looking to settle out of court and with a settlement like this comes money…a lot of money. How much money? A barrow full. Although I can not disclose the exact sum offered to Sinaltrainal and the plaintiffs in the lawsuit it is my understanding that it had six noughts at the end of a dollar sign and a couple of digits in between. For those working in the British coin of the realm it woul
d the same number of noughts but a single digit in front of the pound sign. For those working in the Zimbabwean Dollars, I am afraid the world has run out of noughts.
If the Company was offering money what were the conditions attached to it? I spoke to Ed Potter, The Coca-Cola Company’s Global Workplace Rights Director, a man with intimate knowledge of these negotiations. I said to him that the company had history in this department, ‘financial settlements are reached, but part of that financial settlement is that you don’t criticise us again, you shut up, you go away.’
Ed Potter replied, ‘All I will say as a general matter is we’ve had several different resolutions…you’ve described one of them.’10
Whereas Coke describe the talks as ‘fruitful and informative’, Sinaltrainal use an altogether different set of words. ‘We were in a process that lasted almost a year and a half where we talk and talk and talk with them in order to find a solution to the conflict...and it didn’t give us any result at all,’ said Edgar Paez, the union’s International Officer. He is sitting in his office, by the same table Giraldo and Manco gave their testimonies from. Edgar, is a man prone to smiling, with a touch of a South American George Michael to his unshaven appearance, but throughout our conversation he remains grim-faced. The only reason Coca-Cola negotiated according to him was, ‘because they don’t want us to keep reporting them [campaigning]…What the Company wanted was to buy the silence of the people involved. They give some money to the victims in order not to denounce the problem.’