International Longshore and Warehouse Union (ILWU) et al v. ICTSI Oregon, Inc.

Filing 122

OPINION and ORDER - ILWU and PMA's joint motion to dismiss ICTSI's counterclaims, Dkts. 65 and 68 , are GRANTED in part and DENIED in part. ICTSI's third counterclaim in its original answer is DISMISSED. ILWU may refile it s motion against ICTSI's first and second counterclaims when the stay is lifted. Within 30 days of the date of this Order, ILWU and PMA may refile their joint motion against ICTSI's amended antitrust counterclaim, so long as that motion is not premised on issues before the NLRB in the related actions. Otherwise, ILWU and PMA may refile their joint motion against ICTSI's antitrust counterclaim when the stay is lifted. ILWU's motion to dismiss the Ports counterclaims, Dkt. 75 , is GRANTED in part and DENIED in part. PMA's motion to dismiss the Port's counterclaims, Dkt. 93 , is GRANTED in part and DENIED in part. The Port's fourth counterclaim for tortious interference with contract is DISMISSED with leave to replead within 14 days of the date of this Order. The final resolution, whether by motion or by trial, of the Port's first, second, and third counterclaims and ICTSI's first and second counterclaims, and ICTSI's repleaded antitrus t counterclaim is STAYED pending resolution of NLRB Case Nos. 19-CC-87504 and 19-CD-87505 and Case Nos. 19-CC-82533 and 19-CC-82744. The parties shall submit joint status reports describing the progress of the NLRB actions every four months during the pendency of this stay, commencing four months from the date of this Order. The parties may conduct discovery during the stay. Signed on 3/15/13 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

INTERNATIONAL LONGSHORE
AND WAREHOUSE UNION and
PACIFIC MARITIME ASSOCIATION,

Case No.: 3:12-cv-01058-SI

OPINION AND ORDER
Plaintiffs,
v.
ICTSI OREGON, INC,
Defendant,
and
PORT OF PORTLAND and IBEW
LOCAL 48,
Intervenor-Defendants.

ICTSI OREGON, INC,
Counterclaim-Plaintiff,
v.
INTERNATIONAL LONGSHORE
AND WAREHOUSE UNION;
PACIFIC MARITIME ASSOCIATION;
INTERNATIONAL LONGSHORE
AND WAREHOUSE UNION Local 8; and
INTERNATIONAL LONGSHORE
AND WAREHOUSE UNION Local 40,
Counterclaim-Defendants.

PORT OF PORTLAND,
Counterclaim-Plaintiff and
Crossclaim-Plaintiff,
v.
PACIFIC MARITIME ASSOCIATION;
INTERNATIONAL LONGSHORE
AND WAREHOUSE UNION; and
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION LOCAL 8,
Counterclaim-Defendants,
and
ICTSI OREGON, INC,
Crossclaim-Defendant.

Jeffrey P. Chicoine, Miller Nash LLP, 3400 U.S. Bancorp Tower, 111 S.W. Fifth Avenue,
Portland, Oregon 97204; Clifford D. Sethness, Morgan, Lewis & Bockius LLP, 300 South
Grand Avenue, 2nd Floor, Los Angeles, California 90071. Attorneys for Pacific Maritime
Association.
Robert Remar, Eleanor Morton, and Emily Maglio, Leonard Carder, LLP, 1188 Franklin Street,
#201, San Francisco, California 94109; Robert Lavitt, Schwerin, Campbell, Barnard, Iglitzin
and Lavitt, LLP, 18 West Mercer Street, Suite 400, Seattle, Washington 98119. Attorneys for
International Longshore and Warehouse Union and International Longshore and Warehouse
Union Local 8.
Michael T. Garone, Thomas M. Triplett, Román D. Hernández, and Amanda T. Gamblin,
Schwabe, Williamson & Wyatt, PC, 1900 Pacwest Center, 1211 S.W. 5th Avenue, Portland,
Oregon 97204. Attorneys for ICTSI Oregon, Inc.
Randolph C. Foster, Jeremy D. Sacks, and Nathan C. Brunette, Stoel Rives LLP, 900 S.W. Fifth
Avenue, Suite 2600, Portland, Oregon 97204; Kathy A. Peck, Williams Zografos & Peck PC,
334 3rd Street, Lake Oswego, Oregon 97034. Attorneys for the Port of Portland.

Page 2 – OPINION AND ORDER

SIMON, District Judge.
INTRODUCTION
This matter is one of six separate but related actions arising from a labor dispute at
Terminal 6 at the Port of Portland. 1 Briefly stated, the dispute concerns who is entitled to
perform the work of plugging in, unplugging, and monitoring refrigerated shipping containers
(the “reefer work”) at Terminal 6. Plaintiffs International Longshore and Warehouse Union
(“ILWU”) and the Pacific Maritime Association (“PMA”) contend that their collective
bargaining agreement—the Pacific Coast Longshore Contract Document (“PCLCD”)—requires
Defendant ICTSI Oregon, Inc. (“ICTSI”), the operator of Terminal 6 and a PMA member, to
assign the reefer work to ILWU members. 2 ICTSI, and Intervenor-Defendants the Port of
Portland (the “Port”) and the International Brotherhood of Electrical Workers (“IBEW”) Local
48, contend that other contracts—including the Terminal 6 Lease Agreement between the Port
and ICTSI and the District Council of Trade Unions (“DCTU”) Agreement between the Port and
IBEW—require that the reefer work be assigned to IBEW members.
In this action, ILWU and PMA have filed a single claim for relief under § 301 of the
Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185, requesting the Court confirm
certain arbitration awards. On December 21, 2012, the Court stayed this claim pending final
1

The other five cases are Pac. Mar. Ass’n v. Int’l Longshore & Warehouse Union Local
8, Case No. 3:12-cv-01100-SI (D. Or.); Int’l Longshore & Warehouse Union v. Port of Portland,
Case No. 3:12-cv-01494-SI (D. Or.); Hooks v. Int’l Longshore & Warehouse Union, Case No.
3:12-cv-1088-SI (D. Or.); Hooks v. Int’l Longshore &Warehouse Union, Case No.
3:12-cv-01691-SI (D. Or.); and Pac. Mar. Ass’n v. N.L.R.B., Case No. 3:12-cv-02179-MO
(D. Or.).
2

The PCLCD covers work performed by ILWU Local 8 longshore workers. PMA and
ILWU are also parties to a collective bargaining agreement called the Pacific Coast Clerks
Contract Document (“PCCCD”), which covers work performed by ILWU Local 40 clerks.
Together, the two collective bargaining agreements are known as the “Pacific Coast Longshore
and Clerks Agreement.” Compl. at ¶ 7.
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adjudication of related proceedings before the National Labor Relations Board (“NLRB”).
Dkt. 110. ICTSI and the Port have filed several counterclaims. Dkts. 32, 60. Presently before the
Court are ILWU and PMA’s motions to dismiss several of those counterclaims. Dkts. 65, 68, 75,
93. In addition, the Court required the parties to provide supplemental briefing addressing
whether the Court should stay any or all of the counterclaims by ICTSI or the Port pending the
related NLRB proceedings. Dkt. 110. ILWU and PMA filed briefing asking the Court to stay the
counterclaims. Dkts. 116, 117. ICTSI and the Port filed briefing urging the Court not to stay the
counterclaims. Dkts. 113, 118.
As more fully described below, the Court grants in part and denies in part ILWU and
PMA’s joint motion to dismiss ICTSI’s counterclaims and grants in part and denies in part PMA
and ILWU’s motions to dismiss the Port’s counterclaims. Finally, the Court stays final resolution
of the Port’s first, second, and third counterclaims and ICTSI’s first, second, and third
counterclaims pending resolution of the related NLRB actions. The parties may, however,
conduct discovery.
BACKGROUND
IBEW-represented employees have performed the reefer work on Terminal 6 since 1974.
Beginning in March 2012, ILWU began filing grievances under the PCLCD’s grievance and
arbitration procedures alleging that ICTSI is “refusing and failing to assign to ILWU longshore
mechanics the” reefer work in violation of the PCLCD. Compl. ¶ 29 (Dkt. 1). In May and June
2012, ILWU and PMA arbitrated ILWU’s grievances. An arbitrator issued two decisions (the
“PCLCD awards”) directing ICTSI to assign the reefer work to ILWU members. In response to
ILWU’s attempts to obtain the reefer work for ILWU-represented employees, ICTSI and the Port
filed several charges with the NLRB.

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A.

The NLRB Proceedings
1.

NLRB Case No. 19-CD-080738

When IBEW learned of ILWU’s grievances, IBEW threatened to picket if ICTSI reassigned the reefer work from IBEW-represented employees to ILWU-represented employees.
On May 10, 2012, ICTSI filed an unfair labor practice charge with the NLRB against IBEW
alleging that IBEW violated § 8(b)(4)(D) of the NLRA, 29 U.S.C. § 158(b)(4)(D), by engaging
in proscribed activity with an object of forcing ICTSI to assign the reefer work to IBEWrepresented employees rather than to ILWU-represented employees. Int’l Bhd. of Elec. Workers,
358 NLRB No. 102, 2012 WL 3306478, at *1 (Aug. 13, 2012). ICTSI’s § 8(b)(4)(D) charge
triggered § 10(k) of the NLRA, 29 U.S.C. § 160(k), which empowers the NLRB to resolve
jurisdictional disputes between unions. In Foley-Wismer & Becker v. National Labor Relations
Board, the Ninth Circuit described the § 10(k) process:
Unfair labor practice charges brought under § 8(b)(4)(D) of the Act are handled in
a way quite different from all other charges that may be brought under the Act. . . . When
a charge is brought under § 8(b)(4)(D), the Regional Director conducts an investigation
and, if appropriate, issues a notice of [a § 10(k)] hearing. 29 C.F.R. § 101.33 (1981). The
hearing is to be within 10 days of the initial filing of charges. If the parties fail to reach a
voluntary resolution of the dispute, a non-adversary hearing is held. The purpose of this
hearing is simply to assemble a full record of the relevant facts. The hearing officer
makes no recommendation as to resolution of the dispute. Id. § 101.35. The record thus
assembled is transmitted to the Board, which either “determines the dispute” by issuing a
§ 10(k) award—an assignment of the disputed work to one of the contending unions—or
ends the proceedings by determining that no jurisdictional dispute exists within the
meaning of § 8(b)(4)(D).
682 F.2d 770, 772 (9th Cir. 1982) (en banc) (internal citations omitted).
The NLRB issued a § 10(k) hearing notice in response to ICTSI’s charge. ILWU
intervened in the action. On May 24, 25, 29, and 30, 2012, the NLRB held a § 10(k) hearing in
which ICTSI, IBEW, and ILWU presented evidence. Int’l Bhd. of Elec. Workers, 2012 WL

Page 5 – OPINION AND ORDER

3306478, at *1. Those parties, as well as the Port as amicus, also presented post-hearing briefing
to the NLRB. Id. On August 13, 2012, the NLRB issued a § 10(k) decision awarding the reefer
work to IBEW-represented employees. Id. at *7.
The NLRB relied on three factors to reach its conclusion: the terms of the collectivebargaining agreements, the employer’s preference, and past practice. Id. at *7. With respect to
the collective bargaining agreements, the NLRB determined that the Port, which is not a party to
the PCLCD, controlled the assignment of the reefer work. Thus, the NLRB found that it was
irrelevant that the PCLCD purportedly requires ICTSI to assign reefer work to ILWUrepresented employees because under the DCTU Agreement and the Terminal 6 Lease
Agreement, the Port, not ICTSI, controls that assignment. The NLRB explained:
Both IBEW and ILWU are party to collective-bargaining agreements that cover
the disputed work. The DCTU Agreement, to which IBEW and the Port are bound, states
in pertinent part that it covers “all construction, demolition, installation and maintenance
assignments which have been historically and consistently performed by employees
covered under this Agreement at all marine cargo handling facilities owned and operated
by the Port, including any marine cargo handling facilities leased and operated by the
Port.” The “scope of [the DCTU Agreement] shall include any marine cargo handling
facilities leased by the Port to an independent contractor to the extent the Port retains the
responsibility for the maintenance or repair of any such leased facility or facilities.” As
the Port retained maintenance and repair responsibilities for terminal 6 under its lease
with ICTSI and as the disputed work has historically been performed by DCTU
employees, the DCTU Agreement covers the disputed work.
[. . .]
As set forth above, ICTSI is bound to the PCLCD. Sections 1.7 and 1.71 of the
PCLCD describe the scope of work and ILWU's jurisdiction as the “maintenance and
repair of containers of any kind” and “maintenance and repair of all stevedore cargo
handling equipment” used by PMA-member companies. However, in jurisdictional
disputes, the relevant collective-bargaining agreement is the one negotiated with the
employer who has ultimate control over the assignment of the disputed work. Elevator
Constructors Local 91 (Ot is Elevator Co.), 340 NLRB 94, 96 (2003). Here, the record
evidence shows that the work in dispute is performed by IBEW-represented Port

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employees pursuant to the terms of the DCTU. The Port’s lease makes clear that ICSTI
cannot perform “at the Terminal any DCTU Work . . . or . . . undertake any action that
would cause the Port to be in violation of the terms of the DCTU Agreement.” Because
ICTSI has no authority to control the disputed work, the PCLCD is not relevant: it applies
only to maintenance and repair work directed or controlled by a PMA-member employer.
We therefore find that the factor of collective-bargaining agreements favors awarding the
disputed work to employees represented by IBEW.
Id. at *5.
Section 10(k) decisions are not final orders and are not directly reviewable by any court.
N. L. R. B. v. Int’l Longshoremen’s & Warehousemen’s Union, Local No. 50, 504 F.2d 1209,
1213 n.1 (9th Cir. 1974). To obtain review of a § 10(k) decision, “a party must fail to comply,
thereby precipitating an ‘unfair labor practice’ proceeding in which the § 10(k) award becomes
important evidence. When that proceeding culminates, as it must, in a final order, the
disappointed party can bring the order into court and challenge the underlying § 10(k)
determination.” J.F. White Contracting Co. v. Local 103 Int’l Bhd. of Elec. Workers, 890 F.2d
528, 531 (1st Cir.1989).
The § 10(k) decision now forms the basis of the Regional Director’s complaint in NLRB
Case Nos. 19-CC-87504 and 19-CD-87505, discussed next. A final order in that case will permit
the “disappointed party” to challenge the § 10(k) decision in an appeal to a federal circuit court
of appeals.
2.

NLRB Case Nos. 19-CC-87504 and 19-CD-87505

In late August 2012, ICTSI filed two new charges with the NLRB alleging that ILWU
was failing to comply with the § 10(k) decision. The Regional Director consolidated the charges
and issued an administrative complaint alleging that ILWU and its Locals, Local 8 and Local 40,
violated §§ 8(b)(4)(ii)(B) and 8(b)(4)(D) of the NLRA, 29 U.S.C. §§ 160(b)(4)(ii)(B) and
160(b)(4)(D), by continuing to maintain this lawsuit and by filing lost work opportunity

Page 7 – OPINION AND ORDER

grievances under the PCLCD against both ICTSI and certain shipping companies that call on
Terminal 6 (the “Carriers”). 3 (Hereinafter, this NLRB administrative action shall be referred to
as the “87504 Proceeding.”)
The Regional Director also petitioned this Court for a preliminary injunction pursuant to
§ 10(l) of the NLRA, 29 U.S.C. § 160(l), to enjoin ILWU and its Locals from continuing to
engage in the conduct alleged in the 87504 Proceeding. On November 21, 2012, this Court
issued a preliminary injunction. Hooks ex rel. N. L. R. B. v. Int’l Longshore & Warehouse Union,
Local 8, No. 3:12-CV-01691-SI, 2012 WL 5877536 (D. Or. Nov. 21, 2012). In issuing this
injunction, the Court found that the Regional Director was likely to prevail on his claims that
ILWU and its Locals had violated both §§ 8(b)(4)(ii)(B) and 8(b)(4)(D).
ILWU conceded one allegation in the Regional Director’s administrative complaint.
ILWU agreed that it violated § 8(b)(4)(D) by continuing to maintain its claim in this action
despite the § 10(k) decision awarding the reefer work to IBEW-represented employees. ILWU
explained that it maintained the lawsuit in order to obtain a final order so that it could appeal the
§ 10(k) determination: “Since issuance of the NLRB’s § 10(k) ruling, Respondent ILWU has not
withdrawn its pending lawsuit against ICTSI in [the present case] . . . . This is because the
statutory scheme of § 10(k) and 8(b)(4)(D) require such refusal in order to perfect an appeal
challenging the merits of the NLRB’s § 10(k) award, which appeal ILWU is seeking.” Hooks,
2012 WL 5877536, at *5 n.5 (quoting ILWU’s briefing).
3

The NLRB has separate adjudicatory and prosecutorial sections. The adjudicatory
section is led by five board members, each appointed by the president to five-year terms. The
NLRB’s General Counsel, who is appointed by the president to a four-year term, leads the
prosecutorial section. The result is “a single enforcement agency with authority divided between
two independent units.” J. Higgins, THE DEVELOPING LABOR LAW 2656–57 (5th ed. 2006); 29
U.S.C. § 153. Regional Director Hooks’ administrative complaint is brought under the authority
of the General Counsel. 29 U.S.C. § 153(d).

Page 8 – OPINION AND ORDER

The Regional Director’s administrative complaint is currently pending before the NLRB.
An administrative law judge (“ALJ”) will hold a hearing and issue a decision. 29 C.F.R.
§§ 101.10 and 101.11. The Regional Director, ICTSI, and ILWU will have an opportunity to
appeal the ALJ’s decision to the members of the NLRB. Id. at § 101.12. If any party disagrees
with the NLRB’s decision, that party may appeal the NLRB’s decision to the United States Court
of Appeals for the Ninth Circuit or, at the party’s election, to the United States Court of Appeals
for the District of Columbia Circuit. Id. at § 101.14; 29 U.S.C. § 160(f).
3.

NLRB Case Nos. 19-CC-82533 and 19-CC-82744

In June 2012, shortly before Plaintiffs filed this action, ICTSI and the Port filed charges
with the NLRB alleging that ILWU has engaged in unfair labor practices. In particular, ICTSI
and the Port alleged that ILWU and its Locals, Local 8 and Local 40, threatened ICTSI
management, and engaged in work slowdowns and stoppages at Terminal 6. On June 15, 2012,
Regional Director Hooks consolidated the charges and issued an administrative complaint
alleging that ILWU and its Locals violated §§ 8(b)(4)(i)(B) and 8(b)(4)(ii)(B) of the NLRA, 29
U.S.C. §§ 158(b)(4)(i)(B) and (b)(4)(ii)(B), by threatening ICTSI management and engaging in
work slowdowns and stoppages at Terminal 6. (Hereinafter, this administrative action shall be
referred to as the “82533 Proceeding.”) The conduct complained of in the Regional Director’s
complaint allegedly took place between May 24, 2012, and June 10, 2012. Declaration of
Michael T. Garone at ¶ 5 (Dkt. 114).
Pursuant to §10(l) of the NLRA, Regional Director Hooks petitioned this Court for a
preliminary injunction to enjoin ILWU and its Locals from engaging in the conduct alleged in
the 82533 Proceeding. On July 19, 2012, this Court entered a preliminary injunction proscribing
ILWU and its Locals from engaging in work slowdowns or stoppages at Terminal 6 and from

Page 9 – OPINION AND ORDER

otherwise violating §§ 8(b)(4)(i)(B) and 8(b)(4)(ii)(B). The Regional Director’s administrative
complaint is currently pending before the NLRB. ILWU, ICTSI and the Port participated in a
hearing before an ALJ in August 2012, and filed post-hearing briefing in October 2012. The ALJ
has not yet issued a decision.
Among other issues, the NLRB is expected to decide which party controls assignment of
the reefer work. As noted above, the Port contends that under the DCTU Agreement and the
Terminal 6 Lease Agreement, it controls assignment of the reefer work. During the August
hearing, ILWU argued to the ALJ that the Carriers control the reefer work. Dkt. 114, Ex. A. The
NLRB will likely need to resolve this issue in order to determine whether ILWU’s alleged work
slowdowns and stoppages at Terminal 6 were lawful primary activity, protected by the NLRA, or
unlawful secondary activity prohibited by §§ 8(b)(4)(i)(B) and 8(b)(4)(ii)(B).
As with the Regional Director’s Complaint in the 87504 Proceeding, described above,
after the ALJ issues a decision, the parties may appeal that decision to the NLRB. They may also
appeal the NLRB’s decision to the Ninth Circuit or to the D.C. Circuit.
B.

ICTSI and the Port’s Counterclaims
ICTSI, the Port, and IBEW filed answers to Plaintiffs’ complaint. Dkts. 32, 60, 62. ICTSI

and the Port’s answers each raise several counterclaims. 4 ICTSI’s answer originally raised only
three counterclaims: 5 First, ICTSI seeks a court order, under § 301 of the LMRA, vacating the
arbitration awards. Second, ICTSI brings a claim against ILWU pursuant to § 303 of the LMRA,
4

IBEW also raised a counterclaim in its initial answer. Dkt. 62. On its own motion,
however, IBEW requested that the Court dismiss that counterclaim. Dkt. 83. The Court granted
IBEW’s motion, Dkt. 95, and IBEW filed an amended answer that did not raise a counterclaim.
Dkt. 96.
5

ICTSI filed an amended answer on December 17, 2012, after Plaintiffs filed their
motions to dismiss and after the Court held oral argument on those motions. Dkt. 109. The
amended answer repleads the antitrust counterclaim and adds a fourth counterclaim for breach of
fiduciary duty against PMA.
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29 U.S.C. § 187, for damages resulting from ILWU’s allegedly unfair labor practices. Third,
ICTSI claims that Plaintiffs have violated the Sherman Act, 15 U.S.C. §§ 1 and 2.
The Port raises four counterclaims: First, the Port requests a court order, under § 301,
vacating the arbitration awards. Second, the Port requests a declaration and an injunction
establishing that the Port controls the assignment of the reefer work and prohibiting ICTSI from
assigning the reefer work to ILWU members. Third, the Port brings a claim against ILWU and
Counterclaim-Defendant ILWU Local 8 pursuant to § 303 of the LMRA for damages resulting
from ILWU and ILWU Local 8’s allegedly unfair labor practices. Fourth, the Port claims that
PMA, ILWU, and ILWU Local 8 tortiously interfered with the Port’s contracts with ICTSI and
IBEW.
STANDARDS
A.

Motion to Dismiss
A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir 2011). All reasonable inferences from

Page 11 – OPINION AND ORDER

the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
B.

Stay
The power to stay proceedings is inherent to the court. See Landis v. N. Am. Co., 299

U.S. 248, 254 (1936). “A trial court may, with propriety, find it is efficient for its own docket
and the fairest course for the parties to enter a stay of an action before it, pending resolution of
independent proceedings which bear upon the case. This rule applies whether the separate
proceedings are judicial, administrative, or arbitral in character, and does not require that the
issues in such proceedings are necessarily controlling of the action before the court.” Leyva v.
Certified Grocers of California, Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979). When determining
whether a stay is warranted, the court must balance the hardships to the parties. See Dependable
Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) (balancing
interests between parties).

Page 12 – OPINION AND ORDER

DISCUSSION
Presently before the Court are several motions. First, ILWU moves to dismiss all of
ICTSI’s counterclaims. Dkt. 65. PMA joins in ILWU’s motion with respect to ICTSI’s third
counterclaim. Dkt. 68. Second, ILWU moves to dismiss the Port’s first, second, and fourth
counterclaims. Dkt. 75. Finally, PMA moves to dismiss the Port’s first, second, and fourth
counterclaims. Dkt. 93. In addition, on December 21, 2012, the Court requested that the parties
submit additional briefing addressing whether the Court should stay any or all of the
counterclaims. Dkt. 110. ILWU and PMA submitted briefing urging the Court to stay all the
counterclaims. Dkts. 116, 117. The Port and ICTSI submitted briefing urging the Court not to
stay the counterclaims. Dkts. 113, 118. The Port also submitted a memorandum of additional
authority alerting the Court to the United States Circuit Court of Appeals for the District of
Columbia’s decision in Noel Canning v. National Labor Relations Board, 705 F.3d 490 (D.C.
Cir. 2013). Dkt. 120. ILWU also submitted a brief addressing Canning. Dkt. 121.
For the reasons discussed below, the Court grants in part and denies in part ILWU and
PMA’s joint motion to dismiss ICTSI’s counterclaims. Dkts. 65 and 68. The Court grants in part
and denies in part ILWU and PMA’s motions to dismiss the Port’s counterclaims. Dkts. 75 and
93. Finally, the Court stays final resolution of ICTSI and the Port’s § 301 and § 303
counterclaims, ICTSI’s amended antitrust counterclaim, and the Port’s declaratory and injunctive
relief counterclaim pending finals orders in the related NLRB actions. The parties may conduct
discovery.

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A.

Motions to Dismiss
1.

ICTSI and the Port’s Counterclaims to Vacate the Arbitration Awards

ILWU moves to dismiss ICTSI’s first counterclaim to vacate the PCLCD awards. ILWU
and PMA also move to dismiss the Port’s first counterclaim to vacate the PCLCD awards. As
discussed below, the Court stays these § 301 counterclaims. Accordingly, the Court denies
ILWU and PMA’s motions to dismiss these counterclaims, with leave to refile when the stay is
lifted.
2.

ICTSI’s § 303 Counterclaim

ILWU moves to dismiss ICTSI’s § 303 counterclaim. ILWU advances two arguments for
dismissing the § 303 counterclaim. First, ILWU argues that ICTSI’s § 303 counterclaim is
subject to mandatory arbitration under the PCLCD. Second, ILWU argues that it is not liable to
ICTSI under § 303. As discussed below, the Court stays the resolution of ICTSI’s § 303
counterclaim during the pendency of the related NLRB actions, but permits the parties to
conduct discovery during the stay. ILWU’s second argument turns in part on issues that will be
addressed by the NLRB in the related actions. Thus, the Court denies ILWU’s motion to the
extent it is based on the second argument. ILWU may refile its motion on this argument when
the stay is lifted. ILWU’s first argument, however, may be resolved without benefit of the
NLRB’s final orders in the related actions. Accordingly, the Court considers ILWU’s first
argument.
Section 303 “authorizes a private damages action for an employer who has been injured
by a union’s unfair labor practice.” Summit Valley Indus. Inc. v. Local 112, United Broth. of
Carpenters & Joiners of Am., 456 U.S. 717, 722 (1982). Under § 303, “an employer cannot seek
injunctive relief from a secondary boycott under section 303; only damages are available.” San

Page 14 – OPINION AND ORDER

Antonio Cmty. Hosp. v. S. California Dist. Council of Carpenters, 125 F.3d 1230, 1235 (9th Cir.
1997). ILWU argues that ICTSI’s § 303 counterclaim is subject to arbitration because, whether
ICTSI can obtain money damages in an action against ILWU “depends on the language of the
PCLCD, including its arbitral history[.]” ILWU’s Mem. in Support of Mot. to Dismiss at 12
(Dkt. 66). ILWU further argues that the PCLCD does not necessarily require arbitration of all
statutory claims, but it does require the parties to arbitrate whether “ICTSI waived the right to
recover damages.” Transcript at 96:16 (Dkt. 108).
Where a collective bargaining agreement (“CBA”) “contains an arbitration clause, there
is a presumption of arbitrability in the sense that ‘an order to arbitrate the particular grievance
should not be denied unless it may be said with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in
favor of coverage.’” AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643,
650 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582583 (1960)). The presumption in favor of arbitration, however, “does not extend beyond the
reach of the principal rationale that justifies it, which is that arbitrators are in a better position
than courts to interpret the terms of a CBA.” Wright v. Universal Mar. Serv. Corp., 525 U.S. 70,
78 (1998). Accordingly, there is no presumption in favor of arbitration for statutory claims. Id. at
79. The Court, therefore, will not order the parties to arbitrate a statutory claim unless the CBA is
“particularly clear” that statutory claims are subject to arbitration. Id. at 79.
The PCLCD contains an arbitration clause, which provides, in relevant part:
The grievance procedure of this Agreement shall be the exclusive remedy with
respect to any disputes arising between the Union or any person working under this
Agreement or both, on the one hand, and the Association or any employer acting under
this Agreement or both, on the other hand, and no other remedies shall be utilized by any
person with respect to any dispute involving this Agreement until the grievance
procedure has been exhausted.
Page 15 – OPINION AND ORDER

Dkt. 14-1 (“PCLCD”) at § 17.15. This provision does not provide that the parties must arbitrate
statutory claims. Nor does it state that the parties must arbitrate whether damages are available in
statutory claims. Section 17.15’s terms only require that the parties arbitrate “dispute[s]
involving this Agreement [.]” ILWU has not identified any provision of the PCLCD that requires
the parties to arbitrate statutory claims or damages flowing from statutory claims. In fact, § 17.52
expressly limits the power of arbitrators “strictly to the application and interpretation of the
Agreement as written.” PCLCD at § 17.52 (emphasis added).
At least one court has found that a collective bargaining agreement’s arbitration clause
required the parties to arbitrate a § 303 claim. Interstate Brands Corp. v. Bakery Drivers &
Bakery Goods Vending Machines, Local Union No. 550, 167 F.3d 764 (2d Cir. 1999). The
arbitration clause at issue in that case, however, required the parties to arbitrate “any act or
conduct or relation between the parties hereto, directly or indirectly.” Id. at 765 (emphasis
added). The Second Circuit described that arbitration clause as “unusually broad.” Id. The
arbitration clause in the PCLCD is not similarly broad. It does not apply to “any act or conduct.”
Instead, it is expressly limited to disputes “involving this Agreement,” and arbitrators are limited
to applying and interpreting the agreement’s terms. Thus, the Court finds that the PCLCD does
not require ICTSI and ILWU to arbitrate ICTSI’s § 303 counterclaim or the availability of
damages arising from that counterclaim.
Notwithstanding the PCLCD’s express terms, ILWU maintains that an arbitration
decision rendered some years ago provides that “PMA-member companies are precluded from
recovering damages[.]” Transcript at 72:3-4. ILWU also maintains that, under § 24.3 of the
PCLCD, arbitration “decisions from the Coast arbitrators are a part of the contract document.”
Id. at 71:25-72:1; see also id. at 82:4-19. Thus, ILWU argues that even if the PCLCD does not

Page 16 – OPINION AND ORDER

expressly require arbitration of § 303 claims or the availability of damages arising from statutory
claims, an arbitration decision incorporated into the PCLCD requires arbitration.
The Court does not agree with this interpretation. Section 24.3 provides that “arbitration
decisions and rulings of the Labor Relations Committees with respect to provisions of the
Contract that are not changed or modified in this Agreement, remain in effect[.]” Section 24.3
merely provides that an arbitration decision resolving a particular dispute between two parties
remains effective even as new versions of the PCLCD supersede older versions. It does not
provide that arbitration decisions are incorporated into the terms of the PCLCD.
Moreover, even if ILWU were correct, the Court would still have no basis on which to
compel arbitration. ILWU has not submitted a copy of the arbitration decision that purportedly
requires arbitration of damages flowing from statutory claims. Without a copy of that decision,
the Court cannot compare the facts, issues, and interpretations in that decision to the
circumstances in this case.
ILWU also contends that a brief, unpublished Ninth Circuit memorandum opinion, issued
more than a decade ago, suggests that “the PCLCD precludes ICTSI from recovering damages in
this case.” ILWU’s Reply in Support of Mot. to Dismiss ICTSI’s Counterclaims at 4-5 (Dkt. 91).
In Pacific Maritime Association v. International Longshoremen’s and Warehousemen’s Union,
the Ninth Circuit found that “PMA continues to be bound by the permanent Coast Arbitrator’s
1990 ruling, which interpreted the CBA as not allowing recovery of monetary damages for
breaches of the contract’s no-strike clause.” 232 F.3d 895 (9th Cir. 2000) (unpublished). That
case is clearly distinguishable from the present dispute. In the earlier case, PMA brought its
claim under § 301 of the LMRA, which provides a cause of action for “violation of contracts
between an employer and a labor organization.” 29 U.S.C. § 185(a). The PCLCD unambiguously

Page 17 – OPINION AND ORDER

requires PMA and ILWU to arbitrate disputes under the PCLCD. PCLCD at § 17.15. ICTSI’s
counterclaim in the present case, however, is brought under § 303 of the LMRA, and it is not
based on any alleged breach of the PCLCD.
ILWU also argues that an unpublished district court decision suggests that arbitration is
required. In Pacific Maritime Association v. International Longshoremen’s and Warehousemen’s
Union, Local 63, the court required the parties to arbitrate whether the PCLCD waived PMA’s
“right to bring a Section 303 lawsuit against the Locals.” No. CV-97-6757 (C.D. Cal. Feb. 6,
1998); Dkt. 87 at 5. That case was decided before the Supreme Court’s decision in Wright, which
requires collective bargaining agreements to be “particularly clear” that statutory claims are
subject to arbitration. As discussed above, the PCLCD does not clearly require the parties to
arbitrate statutory claims. The Court, therefore, finds that Local 63 does not survive Wright. The
PCLCD does not require ICTSI and ILWU to arbitrate whether damages are available for
ICTSI’s § 303 counterclaim. ILWU’s motion to dismiss ICTSI’s § 303 counterclaim on those
grounds is, therefore, denied.
3.

ICTSI’s antitrust counterclaim

In its third counterclaim, ICTSI alleged that PMA and ILWU violated the Sherman Act,
15 U.S.C. § 1, et seq. At oral argument, the parties stipulated that the Court would dismiss this
counterclaim with leave to replead. Transcript at 93:3-16. On December 17, 2012, ICTSI filed an
amended complaint, which repleaded its antitrust counterclaim. ICTSI’s Amended Answer at
¶¶ 58-73 (Dkt. 109). As such, ILWU and PMA’s motions to dismiss the original antitrust
counterclaim are denied as moot. As set forth below, however, the Court stays the resolution of
ICTSI’s amended antitrust counterclaim.

Page 18 – OPINION AND ORDER

4.

The Port’s Declaratory and Injunctive Relief Counterclaim

ILWU and PMA move to dismiss the Port’s second counterclaim, which requests
declaratory and injunctive relief. As discussed below, the Court stays the resolution of this
counterclaim. Accordingly, ILWU and PMA’s motions are denied with leave to refile when the
stay is lifted.
5.

The Port’s Counterclaim for Tortious Interference with Contract

In its fourth counterclaim, the Port asserts that PMA, ILWU, and Local 8 “intentionally
interfered with the Port’s contractual relationship with ICTSI and IBEW Local 48 through
improper means and for an improper purpose.” Port’s Answer at ¶ 69. The Port asserts this
counterclaim in the alternative to its third counterclaim. Id. at ¶ 70. To state a claim for tortious
interference with contract under Oregon law:
there must be pleaded a wrongful interference with a contractual . . . relationship. An
interference is “wrongful” if it is carried out in pursuit of an improper motive or by
improper means. . . . “Improper means” must be independently wrongful by reason of
statutory or common law, beyond the mere fact of the injury complained of.
Thompson v. Tel. & Data Sys., Inc., 130 Or. App. 302, 313, opinion adhered to as modified on
reconsideration, 132 Or. App. 103 (1994).
ILWU and PMA separately argue that the Port’s counterclaim must be dismissed because
it is preempted by the LMRA. Dkt. 76 at 8-9; Dkt. 94 at 10-13. When “resolution of a state-law
claim is substantially dependent upon analysis of the terms of an agreement made between the
parties in a labor contract, that claim must either be treated as a § 301 claim . . . or dismissed as
pre-empted by federal labor-contract law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220
(1985) (internal citation omitted). The “claim is the touchstone for [the preemption] analysis; the
need to interpret the CBA must inhere in the nature of the . . . claim. If the claim is plainly based
Page 19 – OPINION AND ORDER

on state law, § 301 preemption is not mandated simply because the defendant refers to the CBA
in mounting a defense.” Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001).
The Court declines to reach the preemption argument, however, because the Port has
failed to allege sufficient facts to state a claim for tortious interference with contract. The Port’s
counterclaim merely states that PMA, ILWU, and Local 8 had an “improper motive” and used
“improper means.” See PMA’s Mem. at 11 (Dkt. 94). Those conclusory allegations do not state a
plausible claim for relief. Shroyer, 622 F.3d at 1044 (“the court cannot determine from Shroyer’s
barebone allegations that he has stated a plausible claim”). Those allegations also are insufficient
to determine whether the Port’s counterclaim turns on interpretation of a collective bargaining
agreement. If it does, the counterclaim will be precluded by § 301 of the LMRA. If it does not,
and if it is not preempted by another provision of federal labor law, see, e.g., Point Ruston, LLC
v. Pac. Nw. Reg’l Council of the United Broth. of Carpenters & Joiners of Am., 658 F. Supp. 2d
1266, 1276 (W.D. Wash. 2009), a well-pleaded claim may go forward. Accordingly, the Port’s
counterclaim alleging tortious interference with contract is dismissed with leave to replead.
In the event that the Port repleads the counterclaim, and, as repleaded, the counterclaim is
not preempted, the Court will likely stay its final resolution. At least in its current form, the
counterclaim appears to be premised on the contention that the Port—rather than ICTSI or the
Carriers—controls the assignment of the reefer work. As set forth below, the Court is staying
counterclaims that are dependent on that issue until the NLRB issues final orders in the related
NLRB actions.

Page 20 – OPINION AND ORDER

B.

Stay
1.

ICTSI and the Port’s Counterclaims to Vacate the Arbitration Awards

ICTSI and the Port request that the Court vacate the PCLCD awards requiring ICTSI to
re-assign the reefer work to ILWU-represented employees. ICTSI’s Answer at ¶¶ 50-52 (Dkt.
32); ICTSI’s Amended Answer at ¶¶ 50-52 (Dkt. 109); Port’s Answer at ¶¶ 50-52 (Dkt. 60). On
December 21, 2012, the Court stayed Plaintiffs’ claim to confirm the PCLCD awards pending
the resolution of the NLRB and court actions addressing the NLRB’s § 10(k) award. 6 At oral
argument, the Court asked counsel for both ICTSI and the Port if they objected to the Court also
staying the counterclaims to vacate the arbitration awards. Dkt. 108 (“Transcript”) at 63:6-7,
98:19-25. Neither counsel objected. Id. at 63:8-14, 99:1-3. The Court, therefore, stays ICTSI and
the Port’s counterclaim to vacate the arbitration awards. If the § 10(k) award is confirmed in a
final NLRB order, this Court will lack the authority to confirm the arbitration awards. 7 Sheet
Metal Workers Int’l Ass’n v. Murphy Const. Co., 191 F.3d 909, 911 (8th Cir. 1999) (“Given that
the district court will be unable to enforce the arbitration award to Local 36 in the face of a
contrary NLRB [§ 10(k)] decision, we conclude in this instance that appropriate deference to the
jurisdiction and expertise of the NLRB required a stay of judicial proceedings.” (internal
quotation marks, citation, and alterations omitted)). If the NLRB does not adopt a final order
confirming the § 10(k) award, or if the collateral challenge to the NLRB’s jurisdiction is
successful, the Court will lift the stay on Plaintiffs’ claim and on ICTSI and the Port’s
counterclaims and consider the merits.

6

PMA has brought a collateral challenge to the NLRB’s jurisdiction to issue the § 10(k)
decision in a related case pending in this District. Pac. Mar. Ass’n v. N.L.R.B., Case No. 3:12-cv02179-MO (D. Or.).
7

As discussed above, the § 10(k) award is at issue in the 87504 Proceeding.

Page 21 – OPINION AND ORDER

2.

ICTSI and the Port’s Counterclaims for Damages under § 303 of the LMRA

When an employer believes that a labor organization has committed an unfair labor
practice, as defined in § 8(b)(4) of the NLRA, it may pursue two courses of actions. First, the
employer may file a charge with the NLRB, as provided in § 10 of the NLRA, 29 U.S.C. § 160.
After a charge has been filed, the NLRB “is provided with statutory authority under section
10(a), 29 U.S.C. § 160(a), to adjudicate and remedy unfair labor practices.” Ad Art, Inc. v. N. L.
R. B., 645 F.2d 669, 674 (9th Cir. 1980). To remedy an unfair labor practice, the NLRB may
issue “an order requiring such person to cease and desist from such unfair labor practice, and to
take such affirmative action . . . , as will effectuate the policies of” the NLRA. 29 U.S.C.
§ 160(c); see Sure-Tan, Inc. v. N. L. R. B., 467 U.S. 883, 900 (1984) (“Under § 10(c), the
Board’s authority to remedy unfair labor practices is expressly limited by the requirement that its
orders effectuate the policies of the Act.” (internal quotation marks omitted)). Second, the
employer may also file an action for damages in a United States district court under § 303 of the
LMRA, 29 U.S.C. § 187. As noted above, § 303 “authorizes a private damages action for an
employer who has been injured by a union’s unfair labor practice.” Summit Valley Indus. Inc.,
456 U.S. at 722.
Thus, “Congress intended to provide two remedies—one directed to ending unfair labor
practices [a § 8(b)(4) proceeding before the NLRB], the other to providing for recovery of
damages [a § 303 suit in federal court].” Butchers’ Union, Local No. 498, United Food &
Commercial Workers v. SDC Inv., Inc., 631 F. Supp. 1001, 1006 (E.D. Cal. 1986) (internal
citation and quotation marks omitted; brackets in original); Int’l Longshoremen’s &
Warehousemens’s Union v. Juneau Spruce Corp., 342 U.S. 237, 243-44 (1952) (“Section
8(b)(4)(D) gives rise to an administrative finding; [§ 303] to a judgment for damages. The fact

Page 22 – OPINION AND ORDER

that the two sections have an identity of language and yet specify two different remedies is
strong confirmation of our conclusion that the remedies provided were to be independent of each
other.” (internal footnote omitted)). Neither the NLRB nor the courts are vested with exclusive
jurisdiction to determine whether a labor organization has committed an unfair labor practice:
The “determination of whether a union’s conduct violates section 8(b)(4) may be made either by
the [NLRB] . . . or by the court in a suit under section 303.” Mead v. Retail Clerks Int’l Ass’n,
Local Union No. 839, AFL-CIO, 523 F.2d 1371, 1381 (9th Cir. 1975).
Notwithstanding the concurrent jurisdiction between the courts and the NLRB, when
confronted with a § 303 claim that is based on the same or similar facts alleged in a parallel
proceeding before the NLRB, some courts have recommended staying the § 303 claim pending
resolution of the NLRB action. Consol. Exp., Inc. v. New York Shipping Ass’n, Inc., 641 F.2d 90,
94 (3d Cir. 1981) (“Connex”) (staying § 303 and antitrust claims during pendency of parallel
NLRB unfair labor practice proceeding); Penn. Truck Lines, Inc. v. Int’l Broth. of Teamsters,
Chauffeurs, Warehousemen & Helpers of Am., No. CIV.A. 88-6968, 1990 WL 59305 (E.D. Pa.
May 4, 1990) (staying § 303 claim during pendency of parallel NLRB unfair labor practice
proceedings). In Connex, the Third Circuit identified three reasons to stay the employer’s § 303
and antitrust claims during the pendency of a parallel NLRB unfair labor practice action. First,
the Third Circuit found that where both actions “will involve, to a large extent, the same
evidence,” pursuing each at the same time would result in an “obvious duplication of effort.” Id.
at 94; see also Wickham Contracting Co., Inc. v. Bd. of Educ. of City of New York, 715 F.2d 21,
26 (2d Cir. 1983) (“the judicial and other resources consumed in relitigating [a § 303 claim after
resolution of an NLRB unfair labor practice action] is pure waste”). Second, the Third Circuit
noted that “initial deference” to the NLRB was appropriate because the NLRB has primary

Page 23 – OPINION AND ORDER

responsibility for resolving issues arising under the NLRA. Id.; see also N. Cal. Dist. Council of
Hod Carriers, Bldg. & Const. Laborers, AFL-CIO v. Opinski, 673 F.2d 1074, 1075 (9th Cir.
1982) (“Appropriate deference to the jurisdiction and expertise of the agency often will require a
stay of judicial proceedings.”). Last, the Third Circuit recognized that “there is the distinct
possibility that if both cases go forward simultaneously they may wind up before this court, or
before two separate courts of appeals, with conflicting factual determinations, subject to differing
standards of appellate review.” Id. at 94-95.
In the present case, ICTSI and the Port’s § 303 counterclaims mirror the Regional
Director’s unfair labor practice complaint pending in the 82533 Proceeding. In fact, as discussed
above, the Regional Director’s administrative complaint in the 82533 Proceeding is based on
unfair labor practice charges brought by ICTSI and the Port. Given that substantially similar
factual and legal questions will be decided by the NLRB in that proceeding, the three factors
identified by the Third Circuit in Connex favor staying ICTSI and the Port’s § 303 counterclaims
in this proceeding. First, because the § 303 counterclaims and the NLRB action both allege that
ILWU’s conduct at Terminal 6 violated § 8(b)(4)(B) of the NLRA, litigating ILWU’s liability in
both this forum and the NLRB will result in an “obvious duplication of effort.” The NLRB’s
findings with respect to liability will likely preclude relitigating the ILWU’s liability for the
same conduct here. Int’l Ass’n of Machinists & Aerospace Workers, Dist. Lodge No. 93 v.
Stevens Pontiac-GMC-Honda, Inc., 945 F.2d 409 (9th Cir. 1991) (unpublished) (“The law is
clear that a party is foreclosed from relitigating in federal court those issues that were material to
a proceeding before the NLRB and resulted in a final order of the NLRB.”). Second, this Court
will benefit from availing itself of “the NLRB’s expertise in dealing with unfair labor practice
disputes.” Penn. Truck Lines, 1990 WL 59305, at *8. Finally, by allowing the NLRB to decide

Page 24 – OPINION AND ORDER

the question of ILWU’s liability first, the court obviates the possibility of conflicting decisions
between this Court and the NLRB, and separate appeals addressing the same question before
different courts of appeals.
Nevertheless, both ICTSI and the Port argue that a stay is not warranted because the
conduct alleged in their § 303 counterclaims covers a longer period of time than the conduct
alleged in the NLRB action. Dkt. 118 at 14; Dkt. 113 at 7, 12. In support of this argument, the
Port contends that the NLRB action “is limited to the ILWU’s conduct over a span of about 10
days.” Dkt. 118 at 14. In contrast, ICTSI and the Port’s § 303 counterclaims cover conduct
ranging from May 2012 “to the present.” Dkt. 113 at 7. As such, ICTSI and the Port argue that
“there is no compelling reason to stay the Section 303 claims.” Dkt. 118 at 14.
For two reasons, the Court disagrees. First, even if the Regional Director’s complaint
only alleges violations occurring during a 10-day period, the NLRB’s findings and order may
cover conduct broader than that alleged in the complaint. Hartman Bros. Heating & Air
Conditioning, Inc. v. N. L. R. B., 280 F.3d 1110, 1114 (7th Cir. 2002) (There is no “reason to
hold the Board to the letter of the complaint unless there is prejudice to the employer or to
whoever else is the respondent in the proceeding.”); N. L. R. B. v. Duncan Foundry & Mach.
Works, Inc., 435 F.2d 612, 615 (7th Cir. 1970) (“Even where a complaint is devoid of notice of
the unfair labor practice found, due process is satisfied by full litigation of the issues.”). Thus the
NLRB could issue findings covering conduct up until the hearing that occurred in August.
Second, even if the NLRB’s decision only addresses the 10-day period described in the Regional
Director’s complaint, the NLRB will nevertheless decide a crucial legal issue that is uniquely
within its expertise. ILWU contends that its work slowdowns and stoppages at Terminal 6 were
primary activity protected by the NLRA. The Regional Director, on the other hand, contends that

Page 25 – OPINION AND ORDER

ILWU’s work slowdowns and stoppages were illegal secondary activity. ILWU’s liability in
both the NLRB proceeding and this action depends on the answer to this dispute. The Court will
benefit from the NLRB’s analysis. Moreover, because neither ICTSI nor the Port contends that
ILWU’s conduct after the 10-day period was substantially different than ILWU’s conduct during
the 10-day period, the NLRB’s decision will streamline this Court’s resolution of the § 303
counterclaims even if they address a longer period of time than the NLRB’s decision.
ICTSI and the Port also argue that “many years will likely elapse before a final decision
by the NLRB.” Dkt. 113 at 8. ICTSI cites evidence showing that the median time between an
ALJ decision and an NLRB decision on review is 362 days. Id. (citing 51 Wayne L. Rev. 107,
123 (2005)). The Court is cognizant that resolution of the NLRB proceedings could take some
time and that courts should generally avoid staying litigation for long periods. See Landis v. N.
Am. Co., 299 U.S. 248, 256-57 (1936). Nonetheless, in this case, ICTSI and the Port are
protected in two respects from the potentially deleterious effects of this stay. First, ILWU is
currently subject to two preliminary injunctions. Hooks v. Int’l Longshore & Warehouse Union,
Case No. 3:12-cv-1088-SI (D. Or.); Hooks v. Int’l Longshore & Warehouse Union, Local 8, No.
3:12-CV-01691-SI, 2012 WL 5877536 (D. Or. Nov. 21, 2012). These injunctions prohibit ILWU
from filing grievances under the PCLCD against ICTSI and the Carriers and enjoin ILWU from
engaging in work slowdowns and stoppages at Terminal 6. 8 Second, as described below, the

8

ICTSI asserts that ILWU has continued to engage in “slowdowns, threats of
slowdowns, safety gimmicks, hard-timing and other similar conduct” despite this Court’s
preliminary injunction. Dkt. 113 at 12. The Port contends that “[p]reliminary injunctive relief has
not proven an effective remedy in this case.” Dkt. 118 at 6. The Court reminds the parties that it
“takes its orders very seriously,” Hooks v. Int’l Longshore & Warehouse Union, Local 8, No.
3:12-CV-1088-SI, 2012 WL 2994056 (D. Or. July 20, 2012), and it has the power to find any
party that violates its § 10(l) injunctions in civil or criminal contempt. See Muniz v. Hoffman,
422 U.S. 454 (1975).
Page 26 – OPINION AND ORDER

Court will allow discovery to proceed on ICTSI and the Port’s §303 counterclaims. As such,
there is little danger that those claims will grow stale during the pendency of the NLRB action.
On balance, the benefits of staying final resolution of the § 303 counterclaims outweigh
the harms of declining to issue a stay. The Court and the parties will avoid the waste of
duplicating their efforts in more than one forum and avoid the possibility of conflicting decisions
in separate courts of appeal. Further, the Court will be able to rely on the NLRB’s expertise in
interpreting the NLRA when deciding this case.
3.

The Port’s Declaratory and Injunctive Relief Counterclaim

In its second counterclaim, the Port asks the Court to resolve which party—the Port or
ICTSI—controls the assignment of reefer work at Terminal 6. The Port alleges that the reefer
work “was expressly reserved to the Port and its employees under the terms of the Terminal 6
Lease, and ICTSI is contractually obliged to use the Port to perform such work.” Port’s Answer
at ¶ 56. Based on this allegation, the Port requests that the Court declare “that ICTSI is obliged to
honor the Terminal 6 Lease’s requirement that ICTSI use the Port’s services in connection with
the plugging, unplugging, and monitoring of reefers at Terminal 6 and that ICTSI may not assign
that work to ICTSI’s ILWU Loca18 employees without the Port’s express approval.” Id. at ¶ 60.
The Port also requests that the Court enjoin Plaintiffs from taking “any action” to enforce the
arbitration awards. Id. at ¶ 61.
To resolve which party controls the reefer work, an adjudicator must interpret the DCTU
Agreement, the PCLCD, and the Terminal 6 Lease Agreement. Ordinarily, courts are “the
principal sources of contract interpretation[.]” N. L. R. B. v. Strong, 393 U.S. 357, 360-61 (1969).
The NLRB, however, may, “if necessary to adjudicate an unfair labor practice, interpret and give
effect to the terms of a collective bargaining contract.” Id. at 361. Where, as here, a question of

Page 27 – OPINION AND ORDER

contract interpretation “is closely related to an unfair labor practice charge the employer has
already presented to the NLRB, the district court must exercise its discretion to determine
whether proceedings should be stayed until final disposition of the NLRB proceeding.” Opinski,
673 F.2d at 1075; Cent. Valley Typographical Union No. 46 v. McClatchy Newspapers, 762 F.2d
741, 746 (9th Cir. 1985) (“McClatchy”), abrogated on other grounds by Cortez Byrd Chips, Inc.
v. Bill Harbert Const. Co., 529 U.S. 193 (2000) (same).
In McClatchy, the Ninth Circuit identified several factors that a court should consider
when deciding whether to stay a question of contract interpretation pending a related unfair labor
practice proceeding. First, the Court must “consider whether and to what extent the contractual
interpretation issue presented to the ALJ was bound up with the determination of” the unfair
labor practice issue. 762 F.2d at 748. Second, the Court “must consider whether the ALJ’s
decision, if adopted [by the NLRB], presents a likelihood of preclusion.” Id. Third, the Court
must weigh the equities. Id.
These factors favor staying the question of which party controls assignment of the reefer
work. First, the question of which party controls the reefer work is inextricably tied to all of the
NLRB proceedings. In NLRB Case No. 19-CD-080738, a hearings officer held a four-day
evidentiary hearing and the NLRB issued a § 10(k) decision that addressed in detail the DCTU
Agreement, the PCLCD, and the Terminal 6 Lease Agreement. A portion of the NLRB’s written
decision, quoted in part above, explained each of those agreements and concluded that the Port
controls assignment of the reefer work. In the 87504 Proceeding, the NLRB will decide whether
ILWU violated §§ 8(b)(4)(ii)(B) and (D) when it maintained this lawsuit and continued to file
lost work grievances against the Carriers, despite the NLRB’s § 10(k) decision. In doing so, the
NLRB will either confirm or abrogate the § 10(k) decision. Finally, in the 82533 Proceeding the

Page 28 – OPINION AND ORDER

question of which party controls the reefer work is crucial to determining whether ILWU
engaged in lawful primary activity protected by the NLRA or unlawful secondary activity
constituting an unfair labor practice.
Under the second McClatchy factor the Court must consider whether the NLRB’s final
orders will present a likelihood of preclusion. Issue preclusion “bars relitigation of issues
adjudicated in an earlier proceeding if three requirements are met: (1) the issue necessarily
decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the
first proceeding ended with a final judgment on the merits; and (3) the party against whom
collateral estoppel is asserted was a party or in privity with a party at the first proceeding.” 9
Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir. 2006) (internal quotation
marks and citation omitted); see also Int’l Ass’n of Machinists & Aerospace Workers, Dist.
Lodge No. 93 v. Stevens Pontiac-GMC-Honda, Inc., 945 F.2d 409 (9th Cir. 1991) (unpublished)
(“The law is clear that a party is foreclosed from relitigating in federal court those issues that
were material to a proceeding before the NLRB and resulted in a final order of the NLRB.”).
Each of these requirements will likely be satisfied here. First, the issue that will be
decided in the NLRB proceedings is identical to the issue here. As explained above, that issue of
which party—ICTSI, the Carriers, or the Port—controls the reefer work was before the NLRB in
NLRB Case No. 19-CD-080738, and formed part of the basis of the § 10(k) decision. The
§ 10(k) decision, in turn, is an essential component of the Regional Director’s complaint in the
87504 Proceeding. Moreover, whether ILWU is liable for unfair labor practices in the 82533

9

“Issue preclusion” is the preferred term for this doctrine, replacing “collateral
estoppel.” Taylor v. Sturgell, 553 U.S. 880, 892 n.5 (2008) (“issue preclusion encompasses the
doctrines once known as ‘collateral estoppel’ and ‘direct estoppel.’”).
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Proceeding will depend in part on establishing which party controlled the reefer work. Second,
the 87504 and 82533 Proceedings will likely result in final judgments on the merits.
Finally, the party against whom issue preclusion will be asserted will be a party to the
NLRB actions or in privity with a party to the NLRB actions. ILWU and ICTSI are both party to
all of the NLRB actions. Although PMA is not party to any of the NLRB actions, ILWU and
PMA’s interests in this litigation are bound together by the PCLCD. This contractual relationship
is likely sufficient to establish privity between ILWU and PMA: “Privity has traditionally been
understood as referring to the existence of a substantive legal relationship, such as by contract,
from which it was deemed appropriate to bind one of the contracting parties to the results of the
other party’s participation in litigation.” Nationwide Mut. Fire Ins. Co. v. George V. Hamilton,
Inc., 571 F.3d 299, 310-11 (3d Cir. 2009) (citing Taylor v. Sturgell, 553 U.S. 880, 894 n.8
(2008)). Thus, it is likely that the results of the NLRB actions will preclude relitigation of the
issue of which party controls the reefer work in this court. 10
The last McClatchy factor requires this Court to consider the equities. The equities, on
balance, weigh in favor of a stay. ICTSI and the Port initially faced a choice of whether to file
charges with the NLRB or to file suit in a district court. They chose to invoke the NLRB’s
jurisdiction by filing charges. The NLRB has already held several hearings and ICTSI, the Port,
and ILWU have already produced documents and witnesses and filed briefing in the various
actions. In addition, the Connex factors also suggest that a stay is wise. The issue of which party
10

In its briefing, the Port cited several cases in which courts declined to find that an
NLRB decision precluded consideration of certain questions. Dkt. 118 at 11-12; Pantex Towing
Corp. v. Glidewell, 763 F.2d 1241 (11th Cir. 1985); O’Hare v. Gen. Marine Transp. Corp., 740
F.2d 160 (2d Cir. 1984); Glaziers & Glassworkers Local Union No. 767 v. Custom Auto Glass
Distributors, 689 F.2d 1339 (9th Cir. 1982). In each of these cases, however, the court found that
the issue before the court differed in some material respect from the issue before the NLRB. The
same is not true here. The issue of whether the Port, the Carriers, or ICTSI controls the reefer
work is squarely before both the NLRB and this Court.

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controls the reefer work has already been the subject of § 10(k) hearing and briefing to the
NLRB. Relitigation of that issue in this Court would result in a duplication of effort. It would
also create the potential for conflicting decisions, both between this Court and the NLRB and
between several courts of appeal. 11 On balance, the “judicial process will benefit significantly
from the result of avoiding retrial of issues already decided.” Connex, 641 F.2d at 95.
4.

ICTSI’s Antitrust Counterclaim

In its third counterclaim, as repleaded in its Amended Answer, ICTSI alleges that PMA
and ILWU have violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. 1 and 2. ICTSI’s Amended
Answer at ¶¶ 58-73. This counterclaim is partially dependent on resolution of several issues
pending before the NLRB. For example, ICTSI alleges that after the NLRB issued its § 10(k)
decision, ILWU “engaged in slowdowns, work stoppages, safety gimmicks and . . . prosecuted
numerous grievances against both ICTSI and ocean carriers calling on Portland in an effort to
force ICTSI to assign the disputed work to the ILWU.” ICTSI’s Amended Answer at ¶ 69(G).
ICTSI also alleges that “PMA and the ILWU have refused to dismiss their claim in this case to
confirm the Committee determinations and resulting arbitrations, notwithstanding the clear and
unambiguous mandate of the law that the Section 10(k) award supersedes any prior grievance
and arbitration awards.” Id. at ¶ 69(I). The extent to which ILWU engaged in conduct that
illegally contravened the § 10(k) decision is before the NLRB in the 87504 Proceeding. In
addition, ICTSI alleges that PMA and ILWU have attempted “to compel ICTSI . . . to breach

11

The Port argues that there is “no likely conflict because the court’s preliminary
conclusions regarding the Port’s rights to the [reefer work] are consistent with the NLRB’s
§ 10(k) determination.” Dkt. 118 at 8. The Port’s argument begs the question. It is, of course,
possible that the Court would find that the Port controls the reefer work. The Court cannot,
however, assume that it would reach that conclusion in order to justify addressing the question in
the first place. See Ungar v. Dunkin' Donuts of Am., Inc., 531 F.2d 1211, 1225 (3d Cir. 1976)
(“The ‘proof’ assumes the answer rather than proving it.”).
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ICTSI’s contractual obligations to the Port.” Id. at ¶ 69(J). This allegation is predicated on the
assumption that under the Terminal 6 Lease Agreement and the DCTU Agreement the Port
controls assignment of the reefer work.
The NLRB will not decide whether Plaintiffs have violated the Sherman Act. The NLRB
will, however, resolve these predicate issues. As such, it is appropriate to stay final resolution of
ICTSI’s antitrust counterclaim while the NLRB actions are pending. See Connex, 641 F.2d at 94
(“While the court owes no particular deference to the Board’s antitrust views, its own views on
the reach of the antitrust laws cannot but be enlightened by the Board’s opinion” on the scope of
labor law); Wickham Contracting Co., Inc. v. Bd. of Educ. of City of New York, 715 F.2d 21, 27
(2d Cir. 1983) (“the relitigation of issues adjudicated by the NLRB is precluded in the antitrust
action by the doctrine of collateral estoppel to the extent that the issues are identical and their
resolution was essential to the NLRB's decision”).
5.

ICTSI’s Fiduciary Duty Counterclaim

ICTSI’s fourth counterclaim, raised for the first time in its Amended Answer, alleges that
PMA breached its fiduciary duty to ICTSI. No party has moved against this counterclaim. It is,
therefore, not stayed.
6.

Discovery

ILWU argues that the Court should also stay discovery: “Staying discovery of the
counterclaims at issue here would protect against unnecessary costs and burden and promote the
Court’s and parties’ goal of efficiency by potentially avoiding the expenditure of associated
costs, hassle, time, and burden until and unless necessary.” Dkt. 117 at 9. The Court agrees in
part and disagrees in part. Some of ICTSI and the Port’s counterclaims are broader than the
charges before the NLRB. Staying discovery during the pendency of the NLRB actions “would

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increase the danger of prejudice resulting from the loss of evidence, including the inability of
witnesses to recall specific facts, or the possible death of a party.” Clinton v. Jones, 520 U.S.
681, 707-08 (1997). Discovery may, therefore, proceed. See Connex, 641 F.2d at 95 (staying
§ 303 and antitrust claims, but permitting district court to determine whether “discovery should
go forward”); Hill v. PeopleSoft USA, Inc., 341 F. Supp. 2d 559, 561 (D. Md. 2004) (staying trial
and summary judgment motions, but permitting parties to continue discovery and amend
pleadings during interlocutory appeal).
CONCLUSION
ILWU and PMA’s joint motion to dismiss ICTSI’s counterclaims, Dkts. 65 and 68, is
GRANTED in part and DENIED in part. ICTSI’s third counterclaim in its original answer is
DISMISSED. ILWU may refile its motion against ICTSI’s first and second counterclaims when
the stay is lifted. Within 30 days of the date of this Order, ILWU and PMA may refile their joint
motion against ICTSI’s amended antitrust counterclaim, so long as that motion is not premised
on issues before the NLRB in the related actions. Otherwise, ILWU and PMA may refile their
joint motion against ICTSI’s antitrust counterclaim when the stay is lifted. ILWU’s motion to
dismiss the Port’s counterclaims, Dkt. 75, is GRANTED in part and DENIED in part. PMA’s
motion to dismiss the Port’s counterclaims, Dkt. 93, is GRANTED in part and DENIED in part.
The Port’s fourth counterclaim for tortious interference with contract is DISMISSED with leave
to replead within 14 days of the date of this Order.
The final resolution, whether by motion or by trial, of the Port’s first, second, and third
counterclaims and ICTSI’s first and second counterclaims, and ICTSI’s repleaded antitrust
counterclaim is STAYED pending resolution of NLRB Case Nos. 19-CC-87504 and 19-CD87505 and Case Nos. 19-CC-82533 and 19-CC-82744. The parties shall submit joint status

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reports describing the progress of the NLRB actions every four months during the pendency of
this stay, commencing four months from the date of this Order. The parties may conduct
discovery during the stay.
IT IS SO ORDERED.
Dated this 15th day of March, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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