Part 10 (1/2)

But the two proposed investigations were good enough to buy the company time. The University of Michigan reinstated its contract just three months after cutting it, pending the outcomes of the ILO and TERI reports. The campaigns at other colleges, meanwhile, lost momentum as administrators adopted a wait-and-see att.i.tude. By August 2006, Potter insisted that the student campaign had ”stalled,” something virtually inconceivable when NYU and Michigan had dumped c.o.ke months earlier. Now he and Isdell sought to press the advantage to get rid of Killer c.o.ke back where the fight began-in court.

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The three years since Judge Martinez had dismissed c.o.ke from the ATCA case in 2003 had not been kind to Terry Collingsworth and Dan Kovalik. Martinez's indifference, if not contempt, for the case was apparent from the get-go. He seemed to take pride in getting details wrong, at points referring to Uraba as ”Bogota or Medellin or wherever the heck it was” and to Isidro Gil as ”Joe Blow.” His spontaneous style might seem refres.h.i.+ng to someone without a case before him, but to SINALTRAINAL's lawyers it was downright infuriating. Each June, he dismissed all pending motions, allowing them to be resubmitted the following year. Finally at a hearing in June 2006, Panamco's lawyer was reciting the judge's history of dismissals when Martinez broke in. ”If you didn't know any better,” he said, ”you would think that I didn't want to have anything to do with this case, wouldn't you?” since Judge Martinez had dismissed c.o.ke from the ATCA case in 2003 had not been kind to Terry Collingsworth and Dan Kovalik. Martinez's indifference, if not contempt, for the case was apparent from the get-go. He seemed to take pride in getting details wrong, at points referring to Uraba as ”Bogota or Medellin or wherever the heck it was” and to Isidro Gil as ”Joe Blow.” His spontaneous style might seem refres.h.i.+ng to someone without a case before him, but to SINALTRAINAL's lawyers it was downright infuriating. Each June, he dismissed all pending motions, allowing them to be resubmitted the following year. Finally at a hearing in June 2006, Panamco's lawyer was reciting the judge's history of dismissals when Martinez broke in. ”If you didn't know any better,” he said, ”you would think that I didn't want to have anything to do with this case, wouldn't you?”

Collingsworth and Kovalik were flabbergasted to hear such disdain expressed openly by a United States judge. A few months later, Martinez proved the point in a ruling that finally dismissed all the bottlers from the case as well. The evidence provided by Collingsworth and Kovalik was just too vague to link plant managers to the paramilitaries, wrote Martinez, adding that it was the duty of the courts to guard against ”unwarranted international fis.h.i.+ng expeditions against corporate ent.i.ties.” Coca-Cola Company spokeswoman Kerry Kerr swiftly responded, saying, ”We hope this decision will now enable us to put this case behind us.” It wouldn't, of course. Collingsworth and Kovalik filed a right to appeal, arguing that the case was wrongly decided when the judge allowed the sample bottling agreement rather than the actual one, thereby denying the union proper discovery to prove its case. ”Put aside Colombia, Coca-Cola, murders, anything. This appeal is about fundamental, inflexible, never can violate legal procedures,” says Collingsworth.

Before the lawyers could file, Collingsworth received a call from Ed Potter, whom he knew through D.C. labor law circles. Now just a year into his position, Potter asked if perhaps there was a way they could work out a settlement. At his insistence, the two sides engaged a retired judge in San Francisco, Daniel Weinstein, to act as a formal mediator in their talks. The two sides drew up a ”term sheet” on August 17, 2006, agreeing they would use their ”best efforts” to finalize a settlement within six weeks. In broad terms, the settlement would include cash compensation for the victims in Colombia along with a new workers' rights policy by the company to prevent future violations. In exchange, the lawyers would call off the dogs, including Ray Rogers's campaign maligning c.o.ke.

Collingsworth told Potter that while he wouldn't be able to curtail campaigning by Rogers while negotiations ensued-or USAS or Srivastava for that matter-he could promise that as an act of good faith SINALTRAINAL would suspend its campaign and refrain from publicly criticizing c.o.ke as they talked out a settlement. That promise was a hasty one-and in the end, a fatal one for the union's case.

Instead of the promised six weeks, the negotiations dragged on for the next eighteen months. And once the union's biggest weapon-its voice in the campaign-was taken away, it lost the leverage to make strong demands of the company. The negotiations unfolded under a strict cloak of confidentiality, and both sides' lawyers are still prohibited from revealing what was discussed. Doc.u.ments from the settlement talks, however, reveal the extent of the gap between the union's and c.o.ke's goals-and how aggressively c.o.ke was willing to protect its image.

Whether through misunderstanding or willful disregard for the agreement, SINALTRAINAL resumed criticizing c.o.ke on its website. After all, c.o.ke was destroying the union with its increasing use of contract workers, union leaders reasoned, and the death threats continued to appear at their union halls. If c.o.ke wasn't going to stop the paramilitaries from threatening them, why should they keep their mouths shut? Immediately, c.o.ke's lawyers protested to Judge Weinstein, who blasted back from his BlackBerry that both sides refrain from public statements until he had a draft of the settlement on his desk by the first week of October 2006. Despite a flurry of conference calls and e-mails among Collingsworth, Kovalik, and c.o.ke's lawyers, SINALTRAINAL continued to distribute flyers and post messages to its site about its ongoing campaign, and c.o.ke trolled Web and newspaper reports for even the slightest notice of disparagement that it could use to hold over the union's head with the judge.

As the two sides pushed closer to agreement in October, c.o.ke made clear its goal was to stop the bad publicity against the company, refusing any admission of liability in the torture or murder cases. Furthermore, it insisted SINALTRAINAL agree to never campaign internationally against c.o.ke again. In fact, in a draft of the settlement, it required that the union scrub Internet search engines and archives to get rid of any mention of Killer c.o.ke-as if the campaign never existed. For its part, c.o.ke would pay just over $12 million to the union, including $1 million for Isidro Gil's heirs, and $4 million to be divided among Correa, Galvis, Flores, Garcia, and Gonzalez. The bulk of the rest would go into a $6 million fund for victims of trade union violence, jointly administered by c.o.ke's foundation and the union representatives; Collingsworth and Kovalik would receive $2 million in escrow to cover ”administrative fees” for their part in managing the fund. Finally, the company would agree to a new workers' rights policy-but only for full-time workers, not contract workers-and a confidential ”global forum” four times a year in which c.o.ke would meet to discuss ongoing labor issues.

And then there was one more thing, added by c.o.ke's lawyers: In order for the employees to get their money, they would have to resign from the union.

When the agreement arrived in Colombia, it was met with disbelief by Javier Correa and the rest of SINALTRAINAL's leaders.h.i.+p. If c.o.ke wanted them to stop talking about past cases such as Gil's murder, that was fine, but how could they refrain from criticizing the company for abuses that hadn't occurred yet? And resigning from the union? In their minds, the court case, the campaign, the negotiations-all of it-was an attempt to arrived in Colombia, it was met with disbelief by Javier Correa and the rest of SINALTRAINAL's leaders.h.i.+p. If c.o.ke wanted them to stop talking about past cases such as Gil's murder, that was fine, but how could they refrain from criticizing the company for abuses that hadn't occurred yet? And resigning from the union? In their minds, the court case, the campaign, the negotiations-all of it-was an attempt to save save the union. That requirement would defeat the entire purpose of the agreement. the union. That requirement would defeat the entire purpose of the agreement.

Frustrated with the stalled talks, SINALTRAINAL went on the offensive, sending representatives to partic.i.p.ate in a tour in Germany called, without subtlety, ”c.o.ke Kills.” c.o.ke's lawyers. .h.i.t the roof. ”Every request we made for . . . the immediate cessation of anti-c.o.ke hostilities-was met with an att.i.tude that borders on 'who cares,'” c.o.ke's outside lawyer Faith Gay wrote to Collingsworth in November. ”Obviously this is the primary issue that we do we do care about. Non-disparagement is why we are paying money to your clients.” As far as the company was concerned, she accused the union of not negotiating in good faith. ”To be frank, we believe that plaintiffs are unwilling to disarm for internal political reasons and because they know no other means of interacting with their employer(s).” care about. Non-disparagement is why we are paying money to your clients.” As far as the company was concerned, she accused the union of not negotiating in good faith. ”To be frank, we believe that plaintiffs are unwilling to disarm for internal political reasons and because they know no other means of interacting with their employer(s).”

To prove they meant business, c.o.ke's lawyers filed a motion with Weinstein demanding he fine SINALTRAINAL $150,000 for breach of the term sheet. Furthermore, it demanded he force Rogers to end his campaign as well. Weinstein didn't go for it, but he did order the union to pay $120,000 in penalties. As frustrated as c.o.ke was getting with the union, Collingsworth was getting just as frustrated. ”Look, don't waste my time,” he told his clients. ”If there is an internal political reason why there's not ever going to be a deal, tell me now.” Correa responded that the union was willing to negotiate-if c.o.ke would give it some a.s.surances that it could stop eroding the union both through use of contract workers and through threats by paramilitaries.

In April 2007, the negotiating team headed to Atlanta to try one last time to strike an agreement. Serving as a translator for the group, Camilo Romero admits to feeling intimidated as he headed down with Collingsworth and Kovalik into the ”lions' den”: the penthouse suite of Atlanta's King & Spalding Building. Accompanying them was the union's team of negotiators: president Javier Correa, international relations head Edgar Paez, and secretary/treasurer Duban Velez. And also along for the ride was Ray Rogers.

Even as the union had begun its protracted talks with c.o.ke, Rogers had not been idle. He was hot on the trail of a contract at the 35,000-student University of Alberta when Collingsworth called to tell him he'd eventually have to end his campaign if negotiations went according to plan. Rogers was fine with that, he said. ”But first, tell me, what did we win?” As he caught wind of the details, he, too, was incredulous. No admission of guilt, no a.s.surances the union would continue, no promise of dealing with subcontracting, and a comparatively minuscule dollar amount by corporate standards. (By comparison, Exxon agreed to pay $5 billion for the Valdez Valdez spill.) Rogers told the lawyer he'd go along with whatever the union leaders decided-but he wanted a chance to talk with them first. spill.) Rogers told the lawyer he'd go along with whatever the union leaders decided-but he wanted a chance to talk with them first.

The night before negotiations started in Atlanta, Romero was put in the awkward position of translating for Rogers as he addressed the Colombians in their hotel room. c.o.ke spent $20 million for a few minutes of advertising during the Super Bowl, he told them. Surely they could afford more than that to compensate victims of torture and murder. ”We don't intend to give up our fight against the company,” answered Correa. ”Nor will we accept that people make money on us as victims”-implying that Rogers was looking for his own cut. Privately, Romero also interpreted Rogers's plea as a personal money grab.

Despite their past clashes over Rogers's campaign tactics, Romero was on the same page in thinking c.o.ke was offering a b.u.m deal that didn't ultimately address any of SINALTRAINAL's key demands. Sitting around the heavy wood conference table overlooking downtown Atlanta, the two groups went over the main points of contention without progress-c.o.ke holding fast to the basic agreement-that SINALTRAINAL and Killer c.o.ke be muzzled in exchange for money, with no other enforceable obligations. Finally Kovalik walked out, followed soon by the Colombian team.

But Collingsworth proposed that he try one last time to personally negotiate with Ed Potter. Early the next morning, Collingsworth called to say he'd had a breakthrough-the company would pay settlement money to end the lawsuit and Rogers's campaign, but SINALTRAINAL would be free to say whatever it wanted in the future.

The Colombians delayed their flight home to meet with c.o.ke's representatives for a handshake, even taking pictures with the Atlanta skyline in the background. They flew back to Bogota thrilled about bringing the arrogant multinational to its knees, even as the union lived to fight another day. When the translation of the agreement finally arrived, their elation turned to dismay as they saw that all of the old language forbidding the union from denouncing the company had remained.

The union went back on the attack, with renewed calls for a boycott, and c.o.ke again protested the breach in the cease-fire. A frustrated Potter wrote Collingsworth to say, ”It may be time to move on and conclude no agreement is possible and that we were just wasting our time for the last fourteen months.” Twisting the knife, he added: ”We are in a much better position to deal with this dissipating campaign than we were in 2005.” As reluctant as the lawyers were to admit it, Potter was right. Despite continued campaigning by Rogers and Srivastava, the student campaign had peaked with the victories at NYU and Michigan. Since then, the lack of active campaigning by the Colombian workers had thrown the campaign into disarray. For all of c.o.ke's complaints about SINALTRAINAL breaking their agreement, in fact, the union had substantially reduced its public comments and appearances, especially at the schools that formed the backbone of the campaign. When Srivastava went up against the largest Coca-Cola contract in the country-a ten-year, $38 million contract at the University of Minnesota-he learned too late that SINALTRAINAL wouldn't appear to make its case to the administration. c.o.ke, of course, did show up, and the contract was renewed.

The more he saw the campaign slip away, the more livid Rogers became about the botch that the lawyers had made of the negotiations. In the same way the anti-obesity lawyers had given c.o.ke the upper hand when it agreed to hold off bringing a lawsuit, SINALTRAINAL's agreement to suspend campaigning had taken all the fire out of Killer c.o.ke. ”When you do something like that, you're playing into their hands and undermining your own power,” says Rogers. ”When they are feeling the heat, that's when you need to pick up a bigger club.” he saw the campaign slip away, the more livid Rogers became about the botch that the lawyers had made of the negotiations. In the same way the anti-obesity lawyers had given c.o.ke the upper hand when it agreed to hold off bringing a lawsuit, SINALTRAINAL's agreement to suspend campaigning had taken all the fire out of Killer c.o.ke. ”When you do something like that, you're playing into their hands and undermining your own power,” says Rogers. ”When they are feeling the heat, that's when you need to pick up a bigger club.”

It's that att.i.tude that made Rogers the biggest threat to c.o.ke-and the company knew it. In the last draft of the settlement agreement from October 2007, ”Killer c.o.ke” is mentioned repeatedly throughout the text, which spells out in heartless detail exactly what issues can be raised by whom and when. In return for the leniency granted the union in the face of their breach of negotiation terms, SINALTRAINAL was offered even less money-$8 million. And of that, $3 million would go to the lawyers for a ”discretionary fund” to cover their fees and ”ensur[e] that the Killer c.o.ke Campaign is dismantled.” In other words, c.o.ke would get rid of its biggest adversary, all for less money than the $10 million it had paid a year before to establish its Colombian foundation.

Even before the final draft was inked, Correa and his colleagues in Bogota had made up their minds not to go along with it. ”Ladies and Gentlemen of The Coca-Cola Company,” Correa began in a letter sent in September. ”It is not right that . . . SINALTRAINAL remains unprotected and silent, while the company has no restrictions, deactivates the campaign and does not adopt policies which respect the rights of its workers. . . . Given this situation, we have decided to tie ourselves again to the campaign.”

The union demonstrated that in a big way with its next move: filing a complaint with the International Labour Organization alleging paramilitaries were carrying out violent attacks against workers at the same time the company was implementing policies to suppress union representation. c.o.ke demanded the complaint be withdrawn, saying it would ”cause irreparable damage both to [the Coca-Cola Company] itself and to the chances of successfully negotiating an end to the Killerc.o.ke [sic] campaign.” It was a strange att.i.tude to take from a company that had already committed itself to an independent investigation of the very same claims by the very same agency. When the union refused to withdraw it, c.o.ke again appealed to Weinstein for another fine. Collingsworth gave up-faced with a client who had already pulled out of negotiations, in action if not in word, and an adversary ready to pounce on any infraction, he made it official and told Weinstein that the union was pulling out of negotiations and canceling its obligations under the term sheet.

A year and a half after entering negotiations, he and Kovalik had to admit they had little to show for the effort. All the union stood to gain was money-and without promises of protection, even that was a double-edged sword in Colombia, opening them up to the possibility of heightened violence. Meanwhile, whether or not c.o.ke was bargaining in good faith, the delay only helped the company.

Even as the negotiations foundered, Rogers was ready to go back on the attack at the many universities ripe for the picking. At most of them, however, the key student activists who had started the campaigns had graduated. And now, c.o.ke was about to unveil a one-two punch to ensure that no new activists would take their places.

While Colombia and the negotiations with SINALTRAINAL occupied the forefront of c.o.ke's attention, the villagers in India had pressed on with their battle against the company. In Uttar Pradesh, Nandlal and Srivastava released a devastating report about pollution at a second bottling plant one hundred miles from Mehdiganj, complete with pictures of bags of sludge strewn around the property. Three months later, the franchisee Brindavan Brothers announced it was shuttering its doors because of ”unbearable financial losses.” and the negotiations with SINALTRAINAL occupied the forefront of c.o.ke's attention, the villagers in India had pressed on with their battle against the company. In Uttar Pradesh, Nandlal and Srivastava released a devastating report about pollution at a second bottling plant one hundred miles from Mehdiganj, complete with pictures of bags of sludge strewn around the property. Three months later, the franchisee Brindavan Brothers announced it was shuttering its doors because of ”unbearable financial losses.”

While Coca-Cola was seemingly losing ground, it was planning to outflank activists with the TERI report-the investigation done at the behest of the University of Michigan-which it finally released in January 2008. Surprisingly, given TERI's ties to c.o.ke, the environmental group appeared to support the campaign's demand to close the plant at Kala Dera, saying that ”it is obvious that the area is overexploited and it is highly unlikely that the water situation would improve.” Unless the company could transport water from another location or store it during the rainy season, TERI wrote, the company should shut it down. The report went on to contradict c.o.ke's claims of water neutrality by finding that ”water tables have been depleting in Mehdiganj,” even while it stopped short of recommending that the plant there close.

By contrast, on the issue of pollution, the report supported c.o.ke, saying it ”generally meets the government regulatory standards,” even while it occasionally fell short of the company's own, more stringent, standards. TERI declined to offer an opinion, however, on whether c.o.ke was responsible for groundwater contamination around the plants, saying it was beyond the scope of the report. Finally, on the issue of pesticides, the report concluded they were totally absent in the water used for production, even as it declined to test the actual beverages c.o.ke produced.

Both sides rushed to spin it in a favorable light. ”Enough is enough. Now even Coca-Cola's ally in India has found the company to not be up to the mark,” said Srivastava. c.o.ke soft-pedaled, promising in a letter to the University of Michigan to use the findings to create a new ”community engagement framework” to ”engage with stakeholders” and inst.i.tute new ”global guidelines for operating plants” by early 2008. As for Kala Dera, the company announced it wouldn't be shutting the plant-but would instead step up its rainwater harvesting to help the surrounding community. ”The easiest thing would be to shut down, but the solution is not to run away,” said Atul Singh, CEO of Coca-Cola India. ”If we shut down, Rajasthan is still going to have a water problem.” Even TERI, however, expressed skepticism about the efficacy of rainwater harvesting, upholding the activists' claims that many of the rainwater-harvesting structures were in ”dilapidated condition.”

When the report landed on the desk of administrators in Michigan, however, virtually none of that mattered. It took university vice president Tim Slottow only three days to declare that the university would retain its contract with c.o.ke, for the surprising reason that TERI found no pesticides in the water c.o.ke used for production. Incredibly, that's what the fine print of the Michigan's dispute resolution board had declared would be the standard for decision-making. Groundwater depletion and pollution would be too difficult to accurately measure, the board concluded, despite being the main points of contention in the student activist campaign. And yet TERI didn't even measure whether pesticides were present in c.o.ke beverages.

Even as c.o.ke was able to use the TERI report to blunt the attack from India, the full brilliance of its strategy wasn't revealed until another report landed on a desk at another university.

After the breakdown in negotiations on Colombia, Collingsworth and Kovalik filed their appeal of the ATCA case on March 31, 2008. As they waited for their day in court, everyone else was waiting, too-for the release of c.o.ke's much-vaunted ILO report into the Colombian bottling plants. In fact, the UN agency had slowly made good on its promise to investigate, with six ”senior officials” from Geneva setting up shop in Bogota over the summer of 2008 and meeting with company managers, touring plants, and interviewing workers. In all, they were there twelve days. in negotiations on Colombia, Collingsworth and Kovalik filed their appeal of the ATCA case on March 31, 2008. As they waited for their day in court, everyone else was waiting, too-for the release of c.o.ke's much-vaunted ILO report into the Colombian bottling plants. In fact, the UN agency had slowly made good on its promise to investigate, with six ”senior officials” from Geneva setting up shop in Bogota over the summer of 2008 and meeting with company managers, touring plants, and interviewing workers. In all, they were there twelve days.

The ILO finally released its report on October 3, 2008, and like the TERI report it was a mixed bag for c.o.ke. The agency criticized the bottler for hostility toward unionization, with managers threatening workers against joining unions, and punis.h.i.+ng them with withheld pay, repeated dismissals, and even a.s.saults if they did. The ILO reserved its highest criticism for the practice of subcontracting, noting that at some plants up to 75 or 80 percent of workers now worked on a temporary or contract basis. Those workers, it found, received lower wages and worked far longer hours than the full-time workers-in some cases even required to work twenty-four-hour s.h.i.+fts.

Despite the harsh a.s.sessment, at no point did the ILO investigate the company's alleged past contact with paramilitaries, or their history of murder, threats, and intimidation. The Killer c.o.ke campaign pounced, throwing back Neville Isdell's comments from the shareholder meetings in which he promised to investigate ”past practices.” But sure enough, that was never what the IUF had asked c.o.ke to do, says Ron Oswald, the general secretary of the international union that formally requested the a.s.sessment. He confirms all along that the a.s.sessment was intended to look only into current working conditions, despite c.o.ke's clearly positioning the report as a response to the student protests at NYU and Michigan. ”We told them very clearly they should not do that,” he says. ”It was never intended to be the response that a number of people continue to ask for and what I think is a legitimate request.”

In fact, such an investigation was beyond the scope of the ILO committee that led the inquiry, says Kari Tapiola, the head of the ILO's Committee on Standards and Fundamental Principles and Rights at Work. ”We said right from the beginning that we can only look into what the situation is currently,” he says, ”we would not start going into an area that is covered by the complaint section of the freedom of a.s.sociation.” The what? ”A separate committee to which trade unions or employers can complain.” As it happens, that's the very ILO committee to which SINALTRAINAL filed its complaint after ending negotiations with c.o.ke, sending the company immediately running to Judge Weinstein for sanctions.

Virtually the only interview granted by the Coca-Cola Company for this book was a forty-minute phone interview with Ed Potter. Asked when the company first discovered that the ILO wouldn't be looking into past practices, Potter equivocates. ”I think there is a little dancing on the head of a pin here,” he says, ”because when you are looking into the present presumptively you are also looking into the past.” But clearly the company ”would never have agreed” to looking into acts of violence that were already subject to court proceedings, he says. ”It was never going to happen.” As with the TERI report, the scope of the report had been seemingly predetermined to support c.o.ke; in no case would it answer the question that NYU had presumably asked it to-whether the company had colluded with paramilitaries to perpetrate violence against its workers.

The question now was whether the university would accept the ILO a.s.sessment as fulfillment of its call for an independent investigation. The university senate held off the vote until February 5, 2009-by coincidence the day after SINALTRAINAL was finally scheduled to get its hearing in Miami on the appeal of the ATCA case. That morning, Collingsworth headed to the twentieth floor of Miami's federal building. Waiting there for him was a panel of three judges, each with a scowl deeper than the last. Collingsworth launched into an argument he'd been rehearsing for the better part of three years-that the case had been wrongly decided when Judge Martinez allowed the sample bottling agreement as the sole item of discovery.

”Who at Coca-Cola wanted Gil murdered-who?” interrupted Judge Bernard Tjoflat. Collingsworth began to answer, ”On an aiding-and-abetting theory . . .”

”Who?” barked Tjoflat.

”We don't know that information yet,” Collingsworth admitted. But the names of plant managers listed in the complaint, he continues, should at least be enough to get them a copy of the actual bottler agreement and a list of those responsible for implementing it.

”Here is the fis.h.i.+ng in this area of the law,” said Tjoflat, referring to Judge Martinez's earlier warning against ”international fis.h.i.+ng expeditions.”