National Labor Relations Board, Region 19 v. International Longshore and Warehouse Union et al

Filing 114

Findings of Fact and Conclusions of Law: Petitioner's motion for an order to show cause and petition for civil contempt (Dkt. 65 ) is GRANTED IN PART AND DENIED IN PART as set forth herein. Signed on 12/16/2014 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RONALD K. HOOKS, Regional Director of
the Nineteenth Region of the National Labor
Relations Board, for and on behalf of the
NATIONAL LABOR RELATIONS BOARD,

Case No. 3:12-cv-01088-SI
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Petitioner,
v.
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 8;
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 40; and
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION,
Respondents.
Anne P. Pomerantz, John H. Fawley, NATIONAL LABOR RELATIONS BOARD, Region 19,
915 Second Avenue, Room 2948, Seattle, WA 98174; Helena A. Fiorianti, NATIONAL LABOR
RELATIONS BOARD, Subregion 36, 1220 SW Third Avenue, Suite 605, Portland, Oregon
97204. Of Attorneys for Petitioner.
Robert Remar, Eleanor Morton, and Emily M. Maglio, LEONARD CARDER, LLP, 1188
Franklin St. #201, San Francisco, CA 94109; Robert Lavitt, SCHWERIN, CAMPBELL,
BARNARD, IGLITZIN AND LAVITT, LLP, 18 West Mercer Street, Suite 400, Seattle, WA
98119-3871. Of Attorneys for Respondents.
Michael Garone, SCHWABE WILLIAMSON & WYATT, PC, 1211 S.W. Fifth Avenue,
Suite 1900, Portland, OR 97204. Of Attorneys for Charging Party ICTSI, Oregon, Inc.
PAGE 1 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Michael H. Simon, District Judge.
This matter is one of five separate but related actions arising from a labor dispute at
Terminal 6 at the Port of Portland. 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 the container facility at Terminal 6 (“Terminal 6”).1 The 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 ICTSI Oregon, Inc. (“ICTSI”), the operator of Terminal 6 and a PMA
member, to assign the reefer work to ILWU members. ICTSI, 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”)2 bargaining agreement with the Port require that
the reefer work be assigned to IBEW members. Petitioner Ronald K. Hooks (“Petitioner”)
brought this action under § 10(l) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 160(l), in response to allegations that ILWU, ILWU Local 8 (“Local 8”), and ILWU Local 40
(“Local 40”) (collectively “Respondents”), were engaging in work slowdowns and stoppages at
Terminal 6.
On July 19, 2012, on Petitioner’s petition, Dkt. 1, the Court issued a preliminary
injunction under § 10(l), enjoining Respondents from engaging in certain work slowdowns and
1

The other four cases are Int’l Longshore & Warehouse Union v. ICTSI Oregon, Inc.,
Case No. 3:12-cv-01058-SI; Pac. Mar. Ass’n v. Int’l Longshore & Warehouse Union Local 8,
Case No. 3:12-cv-01100-SI; Int’l Longshore & Warehouse Union v. Port of Portland, Case No.
3:12-cv-01494-SI; and Hooks v. Int’l Longshore & Warehouse Union, Case No.
3:12-cv-01691-SI.
2

The DCTU is the party to the collective bargaining agreement with the Port that covers
IBEW electricians who perform the reefer work.
PAGE 2 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

stoppages at Terminal 6. Dkt. 50 (“July 19 Injunctive Order”). The Court also ordered
Respondents to notify their members and officials of the preliminary injunction and provide “a
clear written directive to refrain from engaging in any conduct inconsistent with this Order.”
Petitioner alleges that Respondents have continued to engage in work slowdowns and
stoppages from July 20, 2012, in violation of the Court’s preliminary injunction. Petitioner also
alleges that Respondents failed properly to notify their officials and members, as required in the
July 19 Injunctive Order. Before the Court is Petitioner’s motion for an order to show cause and
petition for civil contempt. Dkt. 65. For the reasons stated below, the Court finds that there is
clear and convincing evidence that the ILWU and Local 8 violated the Court’s preliminary
injunction by engaging in unlawful secondary boycott activities from July 20, 2012 through
August 13, 2013. The Court finds that Petitioner fails to meet its burden to show a violation of
the Court’s Injunction Order by Local 40 during any relevant time period, by the ILWU and
Local 8 from August 14, 2013 through September 15, 2014, and by all Respondents with respect
to compliance with that portion of the Court’s order regarding the required notification.
Accordingly, Petitioner’s motion for contempt is granted in part and denied in part.3
FINDINGS OF FACT
The Court has considered the decisions of Administrative Law Judge (“ALJ”) Jeffrey D.
Wedekind and ALJ William L. Schmidt,4 the administrative record before ALJ Wedekind, the
admissible evidence filed with this Court, the arguments and briefs by counsel, and the record in
this case. The Court has considered the admissible portions of the declarations of Petitioner’s
3

Respondents asserted numerous evidentiary objections, which are addressed in a
separate Evidentiary Order filed concurrently with this Opinion and Order.
4

The Court gives special deference to the ALJ’s findings that are based on
determinations of credibility. See Underwriters Labs. Inc v. NLRB, 147 F.3d 1048, 1051 (9th
Cir. 1996); NLRB v. Domsey Trading Corp., 1992 WL 175667, at * 1 (E.D.N.Y. July 14, 1992).
PAGE 3 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

witnesses5 Shawn Ball, Stevedore Manager for ICTSI; Dan Pippenger, General Manager of
Marine Operations for the Port; Kelly Roby, former Assistant Terminal Manager and current
Terminal Manager for ICTSI; Bill Wyatt, Executive Director for the Port; and Brian Yockey,
former Terminal Manager and current Director of Labor Relations for ICTSI. The Court has also
considered the declarations of Respondent’s witnesses Craig Bitz, former lead crane mechanic at
Terminal 6 and member of Local 8; Michael Gardner, longshoreman, crane operator, and
member of Local 8; Steve Hennessy, Senior Vice President of Labor Relations and Chief
Operating Officer for the PMA; Dane Jones, Secretary-Treasurer/Business Agent of Local 40;
John Miken, steady mechanic and member of Local 8; John Mulcahy, longshoreman, crane
operator, and member of Local 8; Michael Palmer, registered walking boss and member of
ILWU Local 92; John Gregory Phillips, steady vessel planner and member of Local 40; Stuart
Strader, longshoreman, crane mechanic, and Labor Relations Committee representative for Local
8; and Leal Sundet, Coast Committeeman of the Coast Longshore Division for the ILWU. The
Court makes the following findings of fact.
A. Procedural Background
1.

On June 18, 2012, Petitioner filed a petition for a temporary restraining order

pursuant to § 10(l) of the NLRA, 29 U.S.C. § 160(l). Dkt. 1. Petitioner claimed that Respondents
were engaging in acts and conduct that violated §§ 8(b)(4)(i) and (ii)(B) of the NLRA, 29 U.S.C.
§§ 158(b)(4)(i) and (ii)(B).
2.

Petitioner alleged that “Respondents have been engaged in a labor dispute with

the Port regarding the performance of the plugging, unplugging and monitoring of refrigerated
containers on the dock at Terminal 6.” Petitioner further alleged that Respondents engaged in

5

Witness declarations are cited herein as “[Last Name] Decl.”

PAGE 4 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

unlawful conduct in support of Respondents’ position in their labor dispute with the Port and to
ensure that the disputed reefer work was assigned to ILWU workers.
3.

On June 21, 2012, Petitioner filed a motion for a preliminary injunction. Dkt. 10.

This motion was based on the same alleged facts and violations of law as described in
Petitioner’s motion for a temporary restraining order.
4.

On July 3, 2012, the Court issued a temporary restraining order. Dkt. 25. The

Court’s Order enjoined Respondents from engaging in work stoppages and slowdowns at
Terminal 6 with an object to force or require ICTSI to stop or cease doing business with the Port.
5.

On July 6, 2012, Petitioner filed a petition for civil contempt, alleging that on

July 4, 2012, Respondents engaged in a work slowdown that violated the temporary restraining
order. Dkt. 26.
6.

On July 19, 2012, the Court issued the requested preliminary injunction. The

Court’s preliminary injunction enjoined Respondents from
engaging in slowdowns, stoppages, withholding of services, or
threatening, coercing, or restraining ICTSI Oregon, Inc., or any
other person engaged in commerce . . . where in any case an object
thereof is to force or require ICTSI Oregon, Inc., or any other
person engaged in commerce . . . to cease handling, using, selling,
transporting, or otherwise dealing in the products of, or to cease
doing business with the Port of Portland, or any other person
engaged in commerce . . . or with each other.
Dkt. 50 at 3.
7.

As part of the Court’s Order on July 19, 2012, the Court ordered Respondents to,

“within five (5) days, provide to each of their officers, representatives, employees, agents,
affiliated locals, and members involved with work performed at Terminal 6 a copy of this Order
and a clear written directive to refrain from engaging in any conduct inconsistent with this
Order.” Dkt. 50 at 3.
PAGE 5 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

8.

Also on July 19, 2012, the Court denied Petitioner’s petition for civil contempt

(Dkt. 51) and issued Findings of Fact and Conclusions of Law to that effect on July 20, 2012
(Dkt. 52).
9.

On July 24, 2012, counsel for Respondents filed a declaration stating that he sent

notice of the Court’s preliminary injunction to the ILWU, Local 8, Local 40, and ILWU Local
92. Dkt. 53 at 2. He further stated that, upon information and belief, the notice was posted in key
locations where longshoreman and marine clerks who work at Terminal 6 gather and perform
work, including at locations at Terminal 6 and in the union halls.
10.

No objections or motions were filed in response to the declaration submitted by

ILWU counsel relating to the notice provided to the ILWU and its locals and members.
11.

On August 13, 2012, a three-member panel of the National Labor Relations Board

(“NLRB”) issued a decision pursuant to § 10(k) of the NLRA, 29 U.S.C. § 160(k), concluding
that IBEW members are entitled to perform the reefer work and not ILWU members. Int’l Bd. of
Elec. Workers, 358 NLRB No. 102, 2012 WL 3306478 (Aug. 13, 2012). The ILWU entities
appealed this decision.
12.

Between July 31, 2012 and August 29, 2012, ALJ Schmidt conducted 12 days of

hearings relating to consolidated cases brought before the NLRB alleging that Respondents
engaged in unlawful secondary boycott activity from May 21, 2012 through June 10, 2012.
13.

On August 28, 2013, ALJ Schmidt issued a Decision and Recommended Order,

finding that from May 21, 2012 through June 10, 2012, Respondents engaged in unlawful
secondary boycott activity, including by threatening ICTSI and engaging in unlawful work
stoppages and slowdowns. Dkt. 65-4 at 2-55; also available at Int’l Longshore and Warehouse
Union, AFL-CIO, et al., 2013 WL 4587186 (Aug. 28, 2013).

PAGE 6 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

14.

In November and December 2013, ALJ Wedekind held a 12-day hearing on a

case before the NLRB alleging that Respondents engaged in unlawful secondary boycott activity
from September 2012 through June 2013.
15.

On May 30, 2014, ALJ Wedekind issued a Decision, finding that the ILWU and

Local 8 violated the NLRA by engaging in unlawful secondary boycott activity, including
inciting or encouraging unlawful slowdowns. Dkt. 65-4 at 57-75; also available at Int’l
Longshore and Warehouse Union, AFL-CIO, et al., 2014 WL 2453202 (Aug. 28, 2013). ALJ
Wedekind dismissed the claims against Local 40.
16.

On September 15, 2014, the NLRB filed a petition for an order of civil contempt

with this Court, alleging that Respondents had consistently engaged in unlawful secondary
boycott activities, including work stoppages and slowdowns, since the Court issued the
preliminary injunction. Petitioner alleges that Respondents engaged in the alleged conduct with
an unlawful purpose of causing neutral employers, including ICTSI, to pressure the Port of
Portland to assign its reefer work to Local 8’s members.
17.

On October 21, 2014, the Court held a hearing on the petition. The Court heard

arguments of counsel for Petitioner and Respondents. No party proffered any witnesses at the
hearing. The Court permitted supplemental briefing, which was filed by both parties on
October 31, 2014 and November 7, 2014.
B. Factual Background
18.

For approximately 37 years, the Port, either directly or through a stevedoring

contractor, managed Terminal 6 and hired IBEW members to perform the reefer work at
Terminal 6. In May 2010, ICTSI entered into a lease with the Port to take over management of
the Terminal 6 container facility, beginning on February 12, 2011. For purposes of the July 19
Injunctive Order and the alleged contumacious conduct, the Port is considered the “primary”
PAGE 7 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

employer with respect to the labor dispute over the reefer work and ICTSI and the shipping
carriers are considered “neutrals” in this dispute.6
19.

The productivity of ILWU members at Terminal 6 is measured in gross

productivity, adjusted gross productivity, and net productivity. Gross productivity equals the
total number of moves completed divided by all hours for which workers were paid. Adjusted
gross productivity equals total moves divided by gross hours, minus “exogenous” delays such as
a late vessel or bad weather. Net productivity equals total moves divided by hours actually
worked, meaning adjusted gross productivity minus operations delays such as mechanical or
equipment problems. Dkt. 104-16 at 13. The Court was provided with only gross and net
productivity data for the relevant time period. Because net productivity also incorporates the
“exogenous” delays that are factored in analyzing adjusted gross productivity, the Court
considers gross productivity and net productivity sufficient to analyze the alleged work
stoppages and slowdowns.
20.

Between January 1, 2010, and June 1, 2012, the average gross moves per hour at

Terminal 6 were 23.1 and the average net moves per hour were 27.5. Id.; Yockey Decl. ¶ 4
(Dkt. 83-1 at 4). In April and May 2012, when ICTSI had been managing Terminal 6 for more
than a year, productivity was high. In April 2012, average gross moves per hour were 24.2, and
in May 2012, average gross moves per hour were 24.8. Work stoppages and slowdowns began as
a result of the labor dispute regarding the reefer jobs on June 1, 2012. Dkt. 104-16 at 19.
21.

Beginning in March 2012 and continuing through August 21, 2012, Local 8

members began filing grievances against ICTSI and the shipping carriers seeking lost pay for
6

ALJ Schmidt concluded that the Port has the right to control assignment of the reefer
work, but that conclusion is currently on appeal before the NLRB. This Court has stayed making
a determination of whether the Port or ICTSI has the authority to control assignment of the reefer
work until the NLRB makes a final determination.
PAGE 8 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

longshore workers for each occasion when IBEW workers performed the reefer work. Dkt. 65-4
at 19. An arbitration hearing was scheduled relating to these grievances.
22.

On or about May 21, 2012, ILWU’s Coast Committeemen Sundet threatened

ICTSI’s CEO, Elvis Ganda. Sundet threatened, among other things, that if the reefer work was
not assigned to ILWU members: (1) ICTSI “would pay the price;” (2) ILWU can “fuck” ICTSI;
(3) Sundet “can fuck [ICTSI] badly;” (4) Sundet would make sure that Hanjin Shipping Co. Ltd.
(“Hanjin”), the Port’s largest carrier, did not renew its contract with ICTSI when the then-current
contract expired; and (5) the PMA could fine and expel ICTSI. When Ganda commented that he
felt like the Port had a “gun to his head” based on a clause in the lease agreement requiring the
Port to assign the reefer work and that Sundet had another gun to Ganda’s head, Sundet
responded that Ganda needed to decide “which gun’s got the bigger bullet.” Sundet said that he
did not believe that the Port would react negatively if ICTSI took the position in the NLRB 10(k)
proceeding that ICTSI could assign the reefer work to ILWU members. Sundet added that the
Port “barely” got ICTSI to sign a lease and that the Port had “nobody else out there.” Id. at 22,
24, 46-47.
23.

On May 24, 2012, Sundet stated on two separate occasions that ILWU was going

to “shut down” ICTSI’s operations unless ICTSI began using Local 8 members to perform the
reefer work. Sundet also told Terminal Manager Jim Mullen that ICTSI had to assign the reefer
work to ILWU members, even it meant breaking the lease with the Port. When Mullen replied
that he did not see that happening, Sundet replied that “you might as well tell Hanjin and
[Hapag-Lloyd AG, another shipping line] to pack up because we’re going to send them packing.”
According to Mullen, business from Hanjin and Hapag combined account for nearly 98 percent
of ICTSI’s work at Terminal 6. Id. at 24-25, 46-47.

PAGE 9 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

24.

On May 25, 2012, Local 8 President Jeff Smith threatened Ganda that the ILWU

and Local 8 would cause Hanjin to stop doing business at the Port if the reefer work was not
assigned to Local 8 members. Smith stated that the ILWU would put ICTSI out of business and
would run every Hanjin container out of Portland. Id. at 25-26, 46-47.
25.

From June 1, 2012 through July 19, 2012, when the Court issued the preliminary

injunction, work stoppages and slowdowns occurred as a result of the labor dispute over the
reefer jobs and productivity at Terminal 6 dramatically declined, to average gross moves per
hour of 16.9 and average net moves per hour of 19.7. Dkt. 104-16 at 8.
26.

ALJ Schmidt found that in 2012 Respondents “orchestrated a systematic sabotage

of ICTSI’s operations at T6 between June 1 and 10 that also adversely affected the operations of
the carriers.” Dkt. 65-4 at 47. ALJ Schmidt further found that Respondents engaged in conduct
from May 21 through June 10, 2012, that pressured ICTSI and the shipping carriers with an
object “to seek the relinquishment of the Port’s control over the dockside reefer work for the
benefit of the ILWU-represented workers at T6.” Id. ALJ Schmidt concluded that “[b]y engaging
in conduct disruptive of the operations of ICTSI and the carriers at T6 in order to cause the Port
to relinquish its control over the dockside reefer work, Respondents violated Section 8(b)(4)(i)
and (ii)(B) as alleged.” Id. at 48.
27.

ALJ Schmidt also concluded that Respondents violated Section 8(b)(4)(D) by

continuing to file lost pay grievances whenever IBEW electricians performed the reefer work. Id.
28.

ALJ Schmidt issued conclusions of law, including:
4. By threatening or impliedly threatening to shut down or
otherwise disrupt ICTSI’s operations at Terminal 6 in Portland,
Oregon, in order to force or require ICTSI or any other person to
cease doing business with the Port or any other person,
Respondents have engaged in unfair labor practices . . . .

PAGE 10 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

5. By failing and refusing to fulfill ICTSI’s timely requests for the
referral of qualified employees for work at Terminal 6 in accord
with the Pacific Coast Longshore and Clerks Agreement in order to
force or require ICTSI or any other person to cease doing business
with the Port or any other person, Respondents have engaged in
unfair labor practices . . . .
6. By inducing and encouraging employees to withhold their
services, to engage in slowdowns and work stoppages, or to
interfere with the lawful and proper work assignments of other
employee groups that perform services at Terminal 6 in Portland,
Oregon, in order to force or require ICTSI or any other person to
cease doing business with the Port or any other person,
Respondents have engaged in unfair labor practices . . . .
Id. at 50.
a. The time period from July 19, 2012 through August 13, 2013
29.

After the Court issued the July 19 Injunctive Order, a copy of the injunction was

posted in the Local 8 hall. Miken Decl. ¶ 4, Ex. C (Dkt. 78 at 2, 41-42); see also Strader Decl.
¶ 92 (Dkt. 73 at 29). A notice was posted with the copy of the injunction (the “ILWU Injunction
Notice”) that informed ILWU members that the ILWU “strongly believe[s] that the injunction is
legally wrong,” that the ILWU is posting the notice “under protest,” that ICTSI is the “cause of
the problem” by failing to assign the reefer work to ILWU members, that the ILWU “will win
this dispute,” and that “justice will prevail.” Miken Decl. Ex. A (Dkt. 78 at 7). The notice also
stated that “we [ILWU] ask that everyone so involved please read [the July 19 Injunctive Order]
and follow our clear written directive to refrain from engaging in any conduct inconsistent with
the Injunction.” Id.
30.

The ILWU Injunction Notice and copy of the injunction was also posted at

Terminal 6. Bitz Decl. ¶¶ 4-5 (Dkt. 77 at 3).
31.

The fall in productivity at Terminal 6 coincided with the dispute regarding the

assignment of the reefer jobs. It began on June 1, 2012 and although productivity improved after
PAGE 11 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

the July 19 Injunctive Order, productivity was still significantly below pre-June 1, 2012
averages. From July 20, 2012 through August 11, 2013, the average gross moves per hour were
20 and the average net moves per hour were 23.8. Dkt. 104-16 at 8.
32.

The decline in productivity at Terminal 6 is statistically significant and

economically meaningful. Id. at 16-18; Yockey Decl. ¶ 4 (Dkt. 83-1 at 4). The loss of even one
move per hour is significant because ICTSI charges its customers by containers moved. Yockey
Decl. ¶ 4 (Dkt. 83-1 at 4).
33.

Respondents contend that the decline in productivity was caused by poor

management by ICTSI that resulted in equipment shortages and failures, an unsustainable
reduction in labor, a hostile work environment, and extensive turnover of management
personnel.
34.

The expert report of Dr. Bryce Ward concludes that the labor dispute over the

reefer jobs is the most probable explanation for the decline in productivity at Terminal 6 from
June 1, 2012 through August 13, 2013. Dr. Ward analyzed whether other factors could be the
cause, including external factors such as weather, changes in management, changes in labor,
problems with the equipment, and the quantity of equipment, and found that the evidence
showed that these other factors could not explain the decline in productivity. Dkt. 104-16 at 1930.
35.

The vessels involved do not explain the fall in productivity. Approximately 60

percent of the vessels serviced at Terminal 6 also were serviced before the labor dispute began,
yet the average number of moves per vessel shrank by approximately 100. Id. at 20.
36.

Based on Dr. Ward’s regression analysis, other external factors, such as weather,

also do not explain the fall in productivity. Id. at 20-21.

PAGE 12 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

37.

Internal factors also do not explain the fall in productivity. With minor

exceptions, the land and equipment used to move containers did not change from before and after
the fall in productivity, including the layout of the terminal, the cranes, the trucks, the reach
stackers, and the relevant software. Id. at 22.
38.

Reported equipment problems did, however, increase during the time period from

July 19, 2012 through August 13, 2013. For example, equipment operators were 11.1 percent
more likely to report a crane electrical problem, 2.9 percent more likely to report a crane
mechanical problem, and 1.9 percent more likely to report a terminal equipment problem, than
during the period measured from January 1, 2010 through June 1, 2012. Id. This resulted in
increased time lost due to reported equipment problems.
39.

Dr. Ward noted that from the time period between June 1 and July 19, 2012,

reported equipment problems “surged.” Id. at 23. He further noted that reported equipment
problems “collapsed” after the July 19 Injunctive Order, although remained higher than historical
averages. Id. at 8, 23. Dr. Ward concluded that the direct correlation between labor disputes and
increased reports of equipment problems showed that the “elevated propensity for equipment
problems [from July 19, 2012 through August 13, 2013] may be the result of worker efforts to
slow the operation.” Id. at 23.
40.

Even assuming the increased downtime due to equipment problems reflect real

problems with equipment, the equipment problems still do not explain the substantial fall in
productivity. This is demonstrated by evaluating net productivity, which removes from the
calculation the time when equipment is down. The decline in net productivity was nearly
identical to the decline in gross productivity. Id. at 23. Additionally, the fact that gross and net
productivity declined for every crane further suggests that equipment problems do not explain

PAGE 13 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

the fall in productivity. For crane problems to explain the productivity decline, every crane must
have developed problems immediately after June 1, when work stoppages and slowdowns as a
result of the reefer dispute began, and those problems did not cause crane downtime but only
slowed crane operations and were unable to be diagnosed or fixed in nearly a year. Id. at 24.
41.

Changes in management also do not explain the decline in productivity from

July 19, 2012 through August 13, 2013. The people working for ICTSI at the terminal changed
only marginally, with the most noteworthy change being former terminal manager Mullen
transitioning to the new position of Director of Labor Relations. There was one short-term
replacement, Mr. Walter Seidl, who left after a few months for family reasons. Mullen then
returned to the position for a few months until long-time marine manager Yockey was promoted
to terminal manager. The change from Seidle to Mullen and then to Yockey did not change
productivity. Other changes in ICTSI staff in 2013 occurred well after the decline in productivity
began and do not appear to correspond to any changes in productivity. Id. at 25-26.
42.

As analyzed in Dr. Ward’s report, changes in the number and composition of

union jobs also do not explain the decline in productivity from July 19, 2012 through August 13,
2013. Id. at 26-29.
43.

ALJ Wedekind similarly concluded that the ILWU and Local 8 engaged in

deliberate slowdowns with an object of pressuring ICTSI to support Local 8 in its demand for the
reefer work. Dkt. 65-4 at 61-70. ALJ Wedekind found credible the testimony of numerous ICTSI
employees regarding the slowdowns and stoppages. ALJ Wedekind discredited the testimony of
ILWU members that the slowdowns and stoppages were for safety and other reasons. ALJ
Wedekind found persuasive the admission by Local 8 agents Bitz and Steven Cox that ILWU
members were no longer working as productively because they were “upset” with ICTSI and

PAGE 14 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

would no longer “take care of the company.” Id. at 63. ALJ Wedekind also relied on certain
findings by the standing area arbitrator that ILWU members had engaged in deliberate
slowdowns.
44.

ALJ Wedekind also found that Respondents did not provide adequate notice to

ILWU members of the July 19 Injunctive Order and that the ILWU Injunction Notice was
“certainly not drafted to maximize the impact of the court’s orders.” Id. at 68.
45.

ALJ Wedekind issued conclusions of law that
1. By inducing and encouraging, since September 2012,
longshoreman employed by ICTSI Oregon, Inc. at the Port of
Portland to unnecessarily operate cranes and drive trucks in a slow
and nonproductive manner, refuse to hoist cranes in bypass mode,
and refuse to move two 20-foot containers at a time on older carts,
in order to force or require ICTSI and carriers who call at terminal
6 to cease doing business with the Port, Respondents ILWU and
Local 8 have engaged in unfair labor practices . . . .
2. Respondents ILWU and Locals 8 and 40 have not otherwise
violated the Act in the manner alleged in the amended complaint.

Id. at 71-72.
b. The time period from August 14, 2013 through June 30, 2014
46.

No admissible evidence was presented that specifies the gross and net

productivity from August 14, 2013 through June 30, 2014. The parties do not dispute that
productivity remained low during this time period and the Court finds generally that productivity
did not substantially increase during this time period.
47.

ILWU members continued to raise numerous safety and contractual complaints

and these complaints resulted in work stoppages and slowdowns. Petitioner asserts that these
were “gimmicks” and not genuine disputes. Numerous declarations were submitted by ILWU
members and ICTSI employees detailing various specific instances of alleged safety and other
contract violations by ICTSI and alleged improper work slowdowns and stoppages by ILWU
PAGE 15 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

members. There were some standing area arbitration decisions upholding ILWU positions and
some decisions siding with ICTSI. One dispute related to whether it was safe to operate the
cranes in bypass mode. The Occupational Safety and Health Administration (“OSHA”) found
that operating cranes in bypass mode did not violate OSHA regulations. Dkt. 94 at 14-15. This
OSHA decision does not, however, prove that the safety concerns were not legitimate at the time
raised or that there were no violations of the PCLCD.
48.

The decreased productivity at Terminal 6 had a significant negative effect on the

carriers, including Hanjin. In fall 2013, Hanjin indicated that it may stop calling at Terminal 6. In
December 2013, Oregon Governor John Kitzhaber intervened in the dispute and called a
meeting. The Port, DCTU, IBEW, ILWU, and ICTSI all participated in the meeting. As a result
of these efforts, on December 12, 2013, the Port, IBEW, and DCTU entered into a work
assignment agreement. Dkt. 65-6 at 7-9. Per the agreement, the Port would use a contractor
(ultimately, Terminal Maintenance Corporation (“TMC”)) to assign the reefer work to ILWU
members for a temporary period of time. The agreed-upon time period would be from the date of
the agreement through when the Port “believes that there is [a] reasonable prospect of labor
productivity at Terminal 6 returning to and sustained at its historic levels.” Id. at 8. After that
condition was satisfied, the Port would have the option to relinquish its right to control the
disputed work and the DCTU and IBEW would consent to such release. Id. Having the reefer
work performed by ILWU members instead of IBEW members is significantly more expensive.
49.

ICTSI and ILWU offer contradicting accounts, through witness declarations, of

how and why the agreement was reached. Sundet states that he made it clear at the meeting that
the slowdowns and stoppages were caused by ICTSI’s poor management and had nothing to do
with the reefer work. Sundet further states that the Port’s Executive Director, Wyatt, volunteered

PAGE 16 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

that he could likely get IBEW to agree to cede the reefer work to Local 8 members and that
Sundet noted the ILWU would not reject that work but again emphasized that the productivity
issues were unrelated to that work. Sundet states that he did not promise that productivity would
increase if the reefer jobs were reassigned to ILWU members. Sundet Decl. ¶¶ 15-17 (Dkt. 75
at 5-7).
50.

On the other hand, Wyatt states that Sundet assured Wyatt at the meeting that

productivity at Terminal 6 would return to historic levels after the reefer work was assigned to
ILWU members. Wyatt states that Sundet further indicated that, to support ILWU’s litigation
position and reduce the risk of damages, Sundet was concerned about connecting productivity to
the reefer work and thus productivity would not immediately increase. Wyatt states that without
an agreement from Sundet that productivity would increase, Wyatt never would have agreed to
have the reefer work assigned, even for only six months, away from the longstanding and much
less expensive IBEW labor. Wyatt stated that the “deal” was that ILWU members would
immediately be assigned the reefer work, productivity would increase to historic levels after a
reasonable time, and if it stayed at those levels for an extended period of time, the reassignment
would become permanent. Wyatt Decl. ¶ 3 (Dkt. 83-4 at 3).
51.

Productivity at Terminal 6 did not improve as a result of the temporary

reassignment of the reefer work.
52.

At a Port of Portland Commission meeting held on July 9, 2014, the Port

requested additional funds of $525,000 to cover the increased costs of using ILWU labor for the
six-month period. Stanton objected to the proposal and Wyatt stated that he was “assured” by an
officer of ILWU that “conditions would return to some state of normality at Terminal 6 if we
consented to work with the IBEW to give up the [reefer] work” but that productivity had not

PAGE 17 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

improved and had, in fact, gotten worse. Dkt. 75 at 71. Wyatt further noted that he was
“steaming” and “angry” because Sundet had “committed” during the Governor’s mediation and
ILWU had not followed through. Id. at 72. At that same meeting Pippenger stated that the DCTU
gave the Port the right to permanently assign the reefer work to ILWU “upon the Port having the
belief of likely or real improvement and productivity at the terminal.” Id. at 74-75.
53.

Neither Sundet nor Wyatt testified live before the Court, so the Court was unable

personally to evaluate the credibility of the witnesses. Looking at the context of the meeting and
its surrounding circumstances, including the work assignment agreement and subsequent actions
of the parties, however, the Court finds Wyatt’s testimony to be more credible. The work
assignment agreement was reached at a meeting that was focused solely on resolving
productivity problems. The only resolution from the meeting was the reassignment of the work
from IBEW members to ILWU members. The work assignment agreement expressly
contemplated that as a result of the reassignment, productivity at Terminal 6 would improve. The
work reassignment resulted in a significantly greater cost for the reefer work, which either had to
be paid by the carriers or the Port. It is not credible that ICTSI would approve the deal and that
DCTU, IBEW, and the Port would agree to transfer the reefer work away from the workers who
had performed it for nearly 40 years, and at a much greater cost, without any corresponding
agreement from ILWU relating to productivity. Additionally, Wyatt and Pippenger’s statements
at the Commission meeting are consistent with Wyatt’s declaration before the Court. Although
productivity did not improve as promised, that fact alone is not sufficient to prove that such a
promise was not made. There are many possible reasons why productivity did not increase after
the work was temporarily reassigned, including a desire to have the work permanently assigned

PAGE 18 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

to ILWU members, a desire to have the Port concede that it never had the right to control the
reefer work, or legal strategy relating to the several pending lawsuits.
54.

In approximately February 2014, Governor Kitzhaber ordered the Port to conduct

an independent study of the equipment and maintenance of the equipment at Terminal 6.
Dkt. 65-6 at 28. In March 2014, the Port hired Cardno TEC, Inc. (“Cardno”) to review the
container crane and rolling stock maintenance practices at Terminal 6. Dkt. 75 at 29. ICTSI and
the Port participated in the review but the ILWU declined to participate. Cardno issued its final
report on June 20, 2014. Id. at 28-57. Cardno concluded that: (1) the inventory of cranes is
adequate; (2) the remaining service life issues need careful monitoring and planned investment;
(3) coordination of major repairs needs improvement; (4) the Port should consider ensuring there
are spare beams for immediate use as needed; (5) beam repair time is longer than industry norms;
(6) the number of qualified mechanical personnel to work on crane beams is inadequate; (7) the
rolling stock inventory is adequate; (8) approximately one-third of rolling stock was down for
repairs; (9) more than half of the Reachstackers were down for maintenance more than 50
percent of the time in the preceding 12 months and repairs took much longer than they should
have taken; (10) “red tag” procedures need centralized control; (11) the shop needs additional
qualified mechanics to bring staffing to a level consistent with that of other similarly-sized West
Coast ports; and (12) ILWU insight and input is critical for the remediation of some of the issues
found by Cardno and all parties should work together or they risk the efficient operation of
Terminal 6 and possibly jeopardizing property or worker safety. Id. at 29.
55.

Petitioner offers no microeconomic or regression analysis regarding the work

stoppages and slowdowns from August 14, 2013 through June 30, 2014. Dr. Ward did not
supplement his expert report to analyze this time period.

PAGE 19 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

c. The time period from July 1, 2014 through September 15, 2014
56.

The PCLCD expired by its own terms on July 1, 2014. Negotiations for a new

labor agreement are ongoing. Lawful primary boycott activities have been and continue to take
place in other West Coast ports in connection with the ongoing labor negotiation.
57.

On August 22, 2014, the Port informed Respondents that it had decided to

terminate the temporary work assignment agreement assigning the reefer work to ILWU
members because the agreement was based on the Port’s expectation that productivity levels at
Terminal 6 would increase, and they have not done so. Dkt. 65-6 at 33-34.
58.

No admissible evidence was presented that specifies the gross and net

productivity from July 1, 2014 through September 15, 2014. The Court finds generally that
productivity did not substantially increase during this time period.
59.

Petitioner offers no microeconomic or regression analysis regarding the work

stoppages and slowdowns from July 1, 2014 through September 15, 2014. Dr. Ward did not
supplement his expert report to analyze this time period.
60.

The parties offer declarations by ILWU members and ICTSI employees

discussing a few specific instances of alleged safety and other contract violations by ICTSI and
alleged improper work slowdowns and stoppages by ILWU members.
CONCLUSIONS OF LAW
A. Laches
1.

Respondents argue that Petitioner’s motion is barred by the equitable doctrine of

2.

The affirmative defense of laches is unavailable against the federal government

laches.

when it undertakes to enforce a public right or protect the public interest. See Heckler v. Comty.
Health Servs. of Crawford County, Inc., 467 U.S. 51, 67 (1984) (Rehnquist, J., concurring)
PAGE 20 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

(noting that as a general rule, laches is no defense to a suit brought by the government to enforce
a public right or to protect a public interest); United States v. Summerlin, 310 U.S. 414, 416
(1940) (“[T]he United States is not . . . subject to the defense of laches in enforcing its rights.”);
S.E.C. v. Silverman, 328 F. App’x 601, 605 (11th Cir. 2009) (finding that the defense of laches is
not available as a defense against the government); United States v. Angell, 292 F.3d 333, 338
(2nd Cir. 2002) (“[L]aches is not available against the federal government when it undertakes to
enforce a public right or protect the public interest.”); Santiago v. Immigration and
Naturalization Service, 526 F.2d 488, 493 n.10 (9th Cir. 1975) (“‘As a general rule laches or
neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a
public right or protect a public interest . . . .’” (quoting Utah Power & Light Co. v. United States,
243 U.S. 389, 409 (1917))).
3.

Respondents argue that Petitioner is not acting to enforce a public right or protect

a public interest because it is acting upon a charge originally filed by a private party, ICTSI. The
parties cite to no decision from either the United States Supreme Court or the U.S. Court of
Appeals for the Ninth Circuit, and the Court has found none, addressing whether the NLRB acts
to enforce a public right or protect the public interest when the NLRB files a petition for civil
contempt for an alleged violation of an injunctive order issued under Section 10(l) of the NLRA,
29 U.S.C. § 160(l). The Ninth Circuit, however, has applied laches when the NLRB files a
petition to enforce an order of the Board under Section 10(e) of the NLRA, 29 U.S.C. § 160(e).
See NLRB v. Searle Auto Glass, Inc., 762 F.2d 769, 772 (9th Cir. 1985) (holding that because
there is no statutory time limit on the filing of applications for enforcement of Board orders
under Section 10(e), laches applies). Because there is no statutory time limit on the filing of
applications for injunctive relief under Section 10(l), similar to Section 10(e), the reasoning for

PAGE 21 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

applying laches in the 10(e) context may apply to an original petition under 10(l). This reasoning
does not, however, necessarily apply to the circumstances in which the Board has already
obtained an injunction under Section 10(l) and later seeks an order of contempt for an alleged
violation of that injunction.
4.

Regardless of whether laches is an available defense in petitions by the NLRB

seeking an order of civil contempt, such defense would fail in the current action. The defense of
laches requires that “[t]he party challenging the timeliness of a petition must show that more
time has elapsed than reasonably necessary and that it was prejudiced by the delay.” Id.
Respondents fail to show either element.
5.

Respondents fail to show that the delay by the NLRB was unreasonable. This is a

complex labor dispute that has involved several cases before the NLRB, significant negotiation
amongst all the parties involved, and involvement by Oregon’s Governor attempting to resolve
the dispute. It was reasonable for the Board to await adjudication by ALJ Wedekind regarding
whether Respondents acted in violation of the NLRA (and, thus, this Court’s injunction).
Although ALJ Wedekind found on May 14, 2014 that ILWU and Local 8 continued to engage in
illegal secondary activity after this Court issued its injunction, it was not unreasonable for the
NLRB to wait approximately three and one-half months to file the pending civil contempt
motion. During that time period, the parties had agreed temporarily to reassign the disputed
reefer work to ILWU members and were waiting to see if productivity would increase and if the
alleged illegal activity would cease. The Court has found credible the testimony that the ILWU
promised slowly to increase the rate of production after the reefer work was reassigned, and
Petitioner’s decision to wait a reasonable time period to see if the promised increase in
productivity would materialize before filing a civil contempt motion was reasonable. See, e.g.,

PAGE 22 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

N.L.R.B. v. Schill Steel Prods., Inc., 480 F.2d 586, 596 (5th Cir. 1973) (finding a two-year delay
not unreasonable and noting that “[w]e do not encourage the N. L. R. B. to come to this court
with contempt petitions as soon as they feel a violation of the order has occurred. This is
especially true in the difficult area of labor relations where the Board may not be able to
determine whether or not a significant violation has occurred until it has already done lengthy
investigation, possibly including a full Board proceeding.”).
6.

Respondents also fail to show that they were prejudiced by the delay. “Mere delay

is not enough to show laches.” N.L.R.B. v. P*I*E Nationwide, Inc., 894 F.2d 887, 894 (7th
Cir. 1990) (citing Gardner v. Panama R.R., 342 U.S. 29 (1951) (per curiam)). The NLRB has not
gained any advantage and the consequences Respondents face are the same now as they would
have been if Petitioner had filed its petition earlier. Thus, Respondents fail to show prejudice.
See, e.g., U.S. Can Co. v. N.L.R.B., 254 F.3d 626, 630 (7th Cir. 2001) (finding no prejudice
where the obligation of the respondent would have been the same had the NLRB filed its petition
for enforcement sooner); Searle, 762 F.2d at 773 (“Thus, by its delay, the NLRB did not gain
any advantage it did not originally have, and the Company suffered no prejudice.”).
7.

The Court declines to apply the defense of laches to the pending petition.

B. Civil Contempt
a. Legal standards
8.

The Court has jurisdiction over the parties and over the subject matter, pursuant to

29 U.S.C. § 160(l). The Court has the authority to issue injunctive relief. 29 U.S.C. § 160(l).
9.

The Court issued a preliminary injunction in this case. The Court “has the power

to adjudge in civil contempt any person who willfully disobeys a specific and definite order of
the court.” Gifford v. Heckler, 741 F.2d 263, 265 (9th Cir. 1984). The “decision to hold a party in
contempt of a court order rests with the sound discretion of the trial court.” Transgo, Inc. v. Ajac
PAGE 23 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Transmission Parts Corp., 768 F.2d 1001, 1022 (9th Cir. 1985). “A person fails to act as ordered
by the court when he fails to take all the reasonable steps within his power to insure compliance
with the court’s order.” Shuffler v. Heritage Bank, 720 F.2d 1141, 1146-47 (9th Cir. 1983)
(internal citations and quotation marks omitted). Despite this broad discretion, however, the
“judicial contempt power is a potent weapon” that must be exercised with care. See Int’l
Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76 (1967).
10.

The “test for civil contempt is whether the alleged contemnor (1) violated a court

order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable
interpretation of the order, (4) by clear and convincing evidence.” Kukui Gardens Corp. v. Holco
Capital Group, Inc., 675 F. Supp. 2d 1016, 1023 (D. Haw. 2009) (citing In re Dual-Deck Video
Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)); see also N.L.R.B. v. San
Francisco Typographical Union No. 21, 465 F.2d 53, 57 (9th Cir. 1972) (applying clear and
convincing standard to allegations of contempt of § 10(l) preliminary injunction). The “moving
party has the burden of showing by clear and convincing evidence that the contemnors violated a
specific and definite order of the court.” Stone v. City & County of San Francisco, 968 F.2d 850,
856 n.9 (9th Cir. 1992). Clear and convincing evidence “requires more than proof by a
preponderance of the evidence and less than proof beyond a reasonable doubt.” Singh v. Holder,
649 F.3d 1161, 1168 (9th Cir. 2011). To meet the clear and convincing standard, “a party must
present sufficient evidence to produce ‘in the ultimate factfinder an abiding conviction that the
truth of its factual contentions are . . . highly probable.’” Sophanthavong v. Palmateer, 378 F.3d
859, 866 (9th Cir. 2004) (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)).
11.

Although the preliminary injunction is broadly worded, the allegations of

improper secondary boycott activities are that Respondents are engaging in the alleged conduct

PAGE 24 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

with a purpose of exerting pressure on ICTSI and the carriers to cease doing business with the
Port in order to force the Port to assign the reefer work to ILWU members or provide ICTSI with
the right to control the assignment of the reefer work. Thus, for Respondents’ alleged
contumacious conduct to violate the Court’s injunction, it must have a purpose related to the
dispute over the reefer work.
b. Allegations of contempt relating the notice requirement
12.

Petitioner argues that Respondents failed properly to post the injunction and the

required notice. Petitioner also argues that the ILWU Injunction Notice violated the injunction
because it did not provide a clear written directive to refrain from engaging in any conduct
inconsistent with the injunction and, to the contrary, stated that the Court’s decision was wrong
and that ILWU would prevail.
13.

The evidence does not clearly and convincingly show that Respondents did not

properly post the notice. Counsel for Respondents provided a copy of the injunction and the
ILWU Injunction Notice to Respondents and both documents were posted at Terminal 6 and
Local 8. Although there is no first-hand testimony that the documents were posted at Local 92 or
Local 40, there is not clear and convincing evidence that they were not posted in those locations.
Further, counsel for Respondents testified that to the best of his knowledge, they were posted at
Local 40 and Local 92.
14.

The Court does not find persuasive the testimony before ALJ Wedekind by a few

ILWU members that, nearly 18 months after the injunction was issued, those members did not
recall seeing the posted injunction and ILWU Injunction Notice. Although that testimony is
credible, the lack of recollection by a few people is not dispositive of whether the documents
were posted. The Court has additional evidence it before it that was not before ALJ Wedekind,

PAGE 25 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

including the declarations of Bitz and Miken and the photographic evidence, and this evidence is
persuasive.
15.

The evidence also does not clearly and convincingly show that Respondents failed

to provide a clear written statement that ILWU members not engage in conduct that violates the
injunctive order. Although the ILWU Injunction Notice states that the ILWU disagrees with the
Court’s injunction, intends to appeal, and believes that the ILWU position will ultimately prevail,
the ILWU Injunction Notice specifically asks that ILWU members refrain from engaging in
conduct prohibited by the injunction.
c. Allegations of contempt relating to alleged work stoppages and slowdowns from
the time period July 19, 2012 through August 13, 2013
16.

The evidence clearly and convincingly shows that during the time period from

July 19, 2012 through August 13, 2013, the ILWU and Local 8 have violated the Court’s order
by inducing and encouraging their members to engage in work stoppages and slowdowns with an
object to coerce ICTSI and the carriers to force the Port to cede the right to control the reefer
work or assign the reefer work to ILWU members. Work stoppages and slowdowns regularly
continued during this time period. Although the dramatic reduction in productivity that began
June 1, 2012 improved after the Court’s injunctive order, it remained lower than the historic
average during the July 19, 2012 through August 13, 2013 time period. Average gross
productivity was 3.1 moves below the pre-June 2012 period and average net productivity was 3.7
moves lower. This reduction in productivity was significant and economically meaningful.
17.

The parties dispute whether that decline in productivity was for a purpose of

forcing the Port to assign the reefer work or was based on primary disputes with ICTSI over
safety concerns, contract disputes, and labor disputes. A violation may be found even if the
alleged purpose is not the sole object of the conduct, as long as it is one of the objectives. See,
PAGE 26 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

e.g., N.L.R.B. v. Denver Bldg. and Construction Trades Council, 341 U.S. 675, 689 (1951);
Roofers Local 30 v. N.L.R.B., 1 F.3d 1419, 1424 (3d Cir. 1993); N.L.R.B. v. Musicians Union,
AFM Local 6, 960 F.2d 842, 845 (9th Cir. 1992). The injunction here prohibited works stoppages
and slowdowns with “an object” of coercing ICTSI or others to cease doing business with the
Port for purposes of obtaining the reefer work. There is substantial evidence that the reefer work
was at least an object of the work stoppages and slowdowns during this time period. First, there
were specific threats made by ILWU and Local 8 members. They threatened that if the reefer
work was not assigned to ILWU members, the ILWU would shut down ICTSI and force Hanjin
not to renew its contract, all to the detriment of the Port, among others. Second, the correlation
between the timing of the labor dispute regarding the reefer work and the work slowdowns is
evidence that the dispute over the reefer work was an object of the slowdowns. This includes the
fact that after ICTSI had been managing Terminal 6 for more than one year productivity was at a
historical high and yet plummeted on June 1, 2010, after the threats relating to the labor dispute
over the reefer jobs. Third, the microeconomic and regression analyses performed by Dr. Ward,
the admissions by Bitz and Steven Cox that ILWU members were not working as productively
anymore because they were “upset” and would not “take care of the company” any more, and the
fact that both ALJ Schmidt and ALJ Wedekind found the testimony from ICTSI witnesses to be
credible and the testimony from ILWU witnesses to be less credible all support this conclusion.
Finally, this Court finds credible Wyatt’s testimony that Sundet promised to increase
productivity at Terminal 6 if the reefer jobs were assigned to ILWU members, which is further
evidence that at least “a purpose” of the slowdowns and stoppages was related to the reefer jobs.
18.

The other explanations provided by Respondents for the stoppages and

slowdowns do not fully explain the conduct, as discussed in Dr. Ward’s expert report.

PAGE 27 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Additionally, Respondents’ argument that many of the work stoppages and slowdowns were
done in response to an action by ICTSI, such as firing an ILWU member or docking pay for late
arrival, is not persuasive. The Court finds such actions by ICTSI to be the byproduct of the labor
dispute over the reefer jobs and not the source of the decline in productivity. See Dkts. 65-4
at 69; 104-16 at 26. As aptly stated by ALJ Wedekind, “[t]o disregard such a connection or
relationship in evaluating the object of union action would ignore industrial realities and
potentially discourage employers from engaging in self-help efforts to prevent or document
continued unlawful conduct.” Dkt. 65-4 at 69-70; see also Hoffman v. Beer Drivers and
Salesmen’s Union Local No. 888, 536 F.2d 1268, 1275 (9th Cir. 1976) (noting that in
considering allegedly contumacious actions, the entire record should be viewed and it not
appropriate to “treat each of the findings of violation as though each particular incident had
happened without any relationship to any of the other incidents which occurred over a period of
time”). Further, even if a few specific instances of work stoppages or slowdowns were motivated
by a legitimate primary purpose, the work stoppages and slowdowns have been ongoing and in
considering the overall record during this time period, the Court finds that at least “an object” of
the slowdowns and work stoppages was to leverage ICTSI and the carriers to force the Port to
cede the right to control the reefer work or to assign the reefer work to ILWU members.
19.

The parties also dispute whether Respondents are responsible for the alleged

conduct. There is direct evidence from May and June 2012 that ILWU and Local 8 agents and
officers specifically threatened to engage in coordinated acts to shut down ICTSI, drive Hanjin
out of the Port, and otherwise attempt to force the Port to assign the reefer work to ILWU
members. There is also direct evidence that Local 8 agents and officers themselves engaged in
work slowdowns and stoppages. Further, there is ample circumstantial evidence that the agents

PAGE 28 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

and officers of the ILWU and Local 8 continued to direct, encourage, or coordinate the work
stoppages and slowdowns during the July 20, 2012 through August 13, 2013 time period.7
Multiple ILWU members engaged in the same conduct, such a driving the “scenic route” around
the yard, engaging in pretextual safety complaints, and deliberately operating cranes more
slowly. Dkt. 65-4 at 70. This is indirect evidence of concerted or coordinated conduct. Further,
Dr. Ward’s statistical analysis shows that the productivity of every crane and nearly every crane
operator remained depressed throughout the entire time period, which would be “a remarkable
coincidence” if it were not a coordinated effort. Dkts. 104-15 at 59, 104-16 at 10. Circumstantial
evidence is sufficient to show responsibility. See, e.g., United Scenic Artists, Local 829, Broth. of
Painters and Allied Trades, AFL-CIO v. N.L.R.B., 762 F.2d 1027, 1035 n.26 (D.C. Cir. 1985);
N.L.R.B. v. Union Nacional de Trabajadores, 540 F.2d 1, 8-9 (1st Cir. 1976); Iron Workers
Local 272 (Presstress Erectors), 172 NLRB 207 (1968), enfd. 427 F.2d 211 (5th Cir. 1970).
20.

Additionally, even if the ILWU and Local 8 did not direct or coordinate the

conduct, there is compelling evidence that they effectively condoned or ratified the conduct and
are thereby properly held accountable. See Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574,
581 (5th Cir. 2000) (holding that a union can be held responsible if it ratifies or condones the
improper conduct and that ratification occurs when the union fails to take measures to stop the
illegal conduct or the union’s efforts to stop the illegal conduct are so minimal that approval or
encouragement can be inferred); Iron Workers Dist. Council of Pac. N.w. v. N.L.R.B., 913 F.2d
7

Although Local 8 members were the ones engaged in the actual conduct, Sundet (from
the ILWU) talked to Local 8 daily, and assisted, advised, and guided it with respect to the work
stoppage and slowdown issues. Dkt. 65-4 at 71; see also Dkt. 104-18 at 60 (minutes from a
January 16, 2013 meeting of various local ILWU members and officers that Sundet attended
noting that “the area needs a cohesive direction to defend the ILWU collectively against ICTSI’s
attempts to undermine our collective bargaining”); Dkt. 104-18 at 65 (minutes from a similar
April 9, 2013 meeting in which Local 8 asked for “continued assistance” in documenting
difficulties with ICTSI).
PAGE 29 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

1470, 1477 (9th Cir. 1990) (noting that a union can be held responsible if it “instigated,
authorized, solicited, ratified, condoned or adopted” the unlawful conduct) (quotation marks and
citation omitted). Here, ILWU and Local 8 knew about the slowdowns and work stoppages,
knew they continued even after the ILWU Injunction Notice was posted, and took no measures
to stop the conduct. Thus, ILWU and Local 8 condoned and ratified the conduct.
21.

The evidence does not, however, clearly and convincingly show that Local 40

violated the Court’s order. Petitioner provides very little evidence of Local 40’s involvement in
the alleged work stoppages and slowdowns. Petitioner does not provide evidence that any
officers or agents of Local 40 threatened ICTSI or engaged in or encouraged work stoppages or
slowdowns or of Local 40 members engaging in any improper conduct during this time period.8
In fact, one of Petitioner’s witnesses states that well before the labor dispute, there was a
problem getting Local 40 registered clerks to work at Terminal 6 because other jobs were
considered more desirable. Yockey Decl. ¶ 39 (Dkt. 83-1 at 25). The Court finds that Petitioner
fails to meet its burden to show that Local 40 violated the Court’s order.
d. Allegations of contempt relating to alleged work stoppages and slowdowns from
the time period August 14, 2013 through June 30, 2014
22.

Petitioner’s argument with respect to the time period of August 14, 2013 through

June 30, 2014, appears to be that because there is sufficient evidence that Respondents engaged
in unlawful secondary boycott activities in violation of the Court’s order from July 20, 2012
through August 13, 2013, the same must be true for this time period. Petitioner offers testimony
through declarations that ILWU members have continued to complain of equipment and safety
problems, have stopped working cooperatively with ICTSI, and have continued to engage in

8

It appears that the only evidence of alleged improper work slowdown or stoppages by a
Local 40 member is from September, 2014. That time period is discussed below.
PAGE 30 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

work stoppages and slowdowns. Petitioner argues that the alleged safety concerns and equipment
problems did not suddenly become valid when they were previously motivated by the reefer
dispute. Although this argument has some appeal, it does not satisfy the clear and convincing
evidentiary standard.
23.

Petitioner offers no admissible evidence of the productivity statistics during this

time period.9 No witnesses testified live before the Court, so the Court has only declarations
from ICTSI employees discussing the alleged improper slowdowns and stoppages, contrasted by
declarations from ILWU members asserting legitimate reasons for those alleged slowdowns and
stoppages. Net productivity numbers might support Petitioner’s argument that equipment issues
were not the cause of the decline in productivity, but Petitioner did not offer any admissible
evidence of net productivity during this time period. Petitioner also offers no microeconomic or
regression analyses demonstrating that the other reasons asserted Respondents were not causing
the alleged stoppages and slowdowns during this time period. For example, Dr. Ward’s analysis
for the July 20, 2012 through August 13, 2013 time period demonstrated that, even assuming all
of the equipment complaints by ILWU members were legitimate, those equipment problems
could not explain the decline in productivity. Dr. Ward performed similar regression analyses for
the other alleged causes of the decline in productivity argued by ILWU. No such analyses,
however, were provided for this time period.
24.

Without a supplemental expert report by Dr. Ward or other similar evidence,

Petitioner fails to show by clear and convincing evidence that the reefer dispute, versus the
numerous other reasons argued by the ILWU, was at least an object of the decline in
9

The Court excluded a productivity chart purportedly prepared by Dr. Ward because it
failed to comply with Federal Rule of Evidence 1006 and was not properly authenticated. For the
same reasons, the Court excluded a chart purportedly prepared by Randy Fischer.
PAGE 31 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

productivity. The report by Cardno is insufficient evidence because although it concludes that
there is an adequate inventory of cranes, it also concludes that repairs are taking much longer
than they should, that the number of qualified mechanics is inadequate, and that coordination of
major repairs needs improvement. Most importantly, the report does not perform a regression
analysis to determine whether the crane problems can explain the decline in productivity.
25.

Although it may appear incongruous that conduct on August 13, 2013 can be

considered in violation of the July 19 Injunctive Order and the same conduct on August 14, 2013
would not be, such a result is necessary based on the high evidentiary burden on Petitioner and
the lack of admissible evidence relating to the decline in productivity and its causation provided
to the Court for the time period after August 13, 2013.
e. Allegations of contempt relating to alleged work stoppages and slowdowns from
the time period July 1, 2014 through September 15, 2014.
26.

The allegations of contempt for the time period of July 1, 2014 through

September 15, 2014 suffer from the same evidentiary flaws as those from August 14, 2013
through June 30, 2014. In addition, the allegations relating to the time period after July 1, 2014,
ignore the critical fact that the PCLCD expired on July 1, 2014. The ILWU is now involved in
labor negotiations for a new contract, and that may be an intervening and superseding cause for
primary boycott activity. The NLRB recognizes that an intervening or superseding cause may
arise in labor disputes that affect the causation analysis. See, e.g., Case Farms of N. Carolina,
Inc. and Western N. Carolina Workers Center, 353 NLRB 257, 279 (2008); Pilot Freight
Carriers, Inc., 265 NLRB 129, 132 (1982). Thus, during the time that labor negotiations are
ongoing, Petitioner must show by clear and convincing evidence that any alleged work stoppages
and slowdowns are not motivated by the intervening primary labor dispute, which affects all

PAGE 32 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

aspects of longshoremen employment along the entire West Coast, and that the dispute over two
reefer jobs at Terminal 6 remains an object of the alleged conduct. Petitioner fails to do so.
f. Remedy
27.

Petitioner seeks as a compensatory remedy its costs and expenses in pursuing the

civil contempt motion. Petitioner also seeks a prospective fine schedule with significant initial
and daily fines for any future noncompliance.
28.

Petitioner also seeks a purgation order requiring Respondents to: (1) fully comply

with the July 19 Injunctive Order; (2) sign a notice within 24 hours, to be approved by the Court
prior to distribution, stating that Respondents were found in contempt of the July 19 Injunctive
Order, denouncing that conduct, explaining the terms of the July 19 Injunctive Order, directing
Respondents and their officers, agents, employees, attorneys, and members to refrain from
similar conduct, and stating that any previous communications that Respondents may have made
inducing or encouraging such conduct are withdrawn and disavowed; (3) distribute the notice
within 48 hours without any accompanying notices, letters, or disclaimers of any kind; (4) file
affidavits of compliance with the Court within three days of distributing the notice; and
(5) distribute the notice for six months at all union gatherings.
29.

The purpose of a civil contempt order can be coercive (to promote future

compliance with the court’s order) or remedial (to compensate for the costs of the contumacious
conduct), or both. See N.L.R.B. v. Int’l Longshore and Warehouse Union, Locals 21 and 4, 721
F.3d 1122, 1129-30 (9th Cir. 2013). “Respondents who are found in civil contempt ‘are
commonly required to pay . . . the expenses incurred by the Board in the investigation,
preparation and presentation of contempt proceedings.’” N.L.R.B. v. James Troutman & Assocs.,
1994 WL 397338, at *8 (9th Cir. 1994) (quoting N.L.R.B. v. Crown Laundry & Dry Cleaners,
Inc., 437 F.2d 290, 295 (5th Cir. 1971)).
PAGE 33 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

30.

The U.S. Court of Appeals for the Ninth Circuit has found that requiring parties

found in contempt to mail the contempt adjudication and the Board notice outlining the contempt
findings to all employees or agents is an appropriate remedial action. See, e.g., James Troutman
& Assocs., 1994 WL 397338, at *7; NLRB v. Sequoia Dist. Council of Carpenters, AFL-CIO,
568 F.2d 628, 631 (9th Cir. 1977).
31.

Because Petitioner has only met its burden to prove contempt for the time period

from July 20, 2012 through August 13, 2013, and because the Court is cognizant of the effect
that the termination of the PCLCD has created with respect to the labor dispute, the Court
declines at this time to impose a prospective fine schedule and ORDERS as follows:
a.

Respondents shall conduct themselves in all respects consistent with the

July 19 Injunctive Order and not in any way, by action or inaction, conduct, engage in, induce,
encourage, permit, ratify, or condone any violation of that Order.
b.

Within seven (7) days, Respondents shall distribute and post copies of this

contempt adjudication along with an appropriate notice, in the form prescribed by Petitioner and
signed by an appropriate officer on behalf of the ILWU and Local 8. This notice shall state that
the ILWU and Local 8 have been adjudged in civil contempt for violating and disobeying the
Court’s July 19 Injunctive Order for the time period from July 20, 2012 through August 13, 2013
by engaging in work stoppages and slowdowns with an object of coercing ICTSI or the carriers
to force the Port to assign the reefer work to ILWU members or to cede control over the
assignment of the reefer work and that the ILWU and Local will undertake the actions directed
by this Court. The notice shall also remind ILWU member of the July 19 Injunctive Order and
provide another clear written directive to refrain from engaging in any conduct inconsistent with

PAGE 34 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

that Order. The Court shall resolve any objections by Respondents to the form of order
prescribed by Petitioner.
c.

Respondents shall cause a copy of the notice and contempt adjudication to

be mailed or emailed, at Respondents’ election, individually to all members of Local 8, Local 40,
and Local 92 and shall submit a list of such members to the Regional Director of the NLRB, with
proof of mailing or emailing. Respondents shall also cause a copy of the notice and contempt
adjudication to be provided to the officers and agents of the ILWU, Local 8, Local 40, and
Local 92, and to the PMA and all the entities set forth in Exhibit A to the July 19 Injunctive
Order.
d.

Respondents also shall cause the notice and contempt adjudication to be

posted in conspicuous places where notices to employees and members are customarily posted at
the union halls and Terminal 6. The notice and the copies of the contempt adjudication shall be
maintained in clearly legible condition for a period of not less than ninety (90) days and shall not
be defaced, altered, or covered by any other material.
e.

The notice shall be read, by an appropriate officer, at the next three

regularly scheduled meetings of the membership of Local 8, Local 40, and Local 92.
f.

Within fourteen (14) days, Respondents shall file with the Court sworn

affidavit(s) from a responsible official(s) with personal knowledge that describes with specificity
how Respondents have complied with the notice requirements of this contempt adjudication.
g.

Respondents shall pay to Petitioner all reasonable costs and expenses,

including reasonable attorney’s fees or salaries, incurred by Petitioner in the investigation,
preparation, presentation, and final disposition of this proceeding. Petitioner shall file within
sixty (60) days a certified statement of such costs and expenses and serve a copy of such

PAGE 35 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

statement on Respondents. Respondents may respond within thirty (30) days after service, and
Petitioner may reply within fourteen (14) days thereafter.
CONCLUSION
Petitioner’s motion for an order to show cause and petition for civil contempt (Dkt. 65) is
GRANTED IN PART AND DENIED IN PART as set forth herein.
IT IS SO ORDERED.
DATED this 16th day of December 2014.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 36 – FINDINGS OF FACT AND CONCLUSIONS OF LAW