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

Filing 64

Findings of Fact and Conclusions of Law. Petitioner's motion for an order to show cause and petition for civil contempt, Dkt. 55 , are DENIED, and Respondents' motion to strike, Dkt. 57 , is DENIED as moot. Signed on 12/10/12 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
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-1088-SI

Petitioner,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

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, Mara-Louise Anzalone, National Labor Relations Board, Region 19, 915
Second Avenue, Room 2948, Seattle, Washington 98174; Lisa J. Dunn, National Labor
Relations Board, Subregion 36, 601 SW Second Avenue, Suite 1910, Portland, Oregon 97204.
Of Attorneys for Petitioner.
Robert Remar, Eleanor Morton, and Philip Monrad, Leonard Carder, LLP, 1188 Franklin St.
#201, San Francisco, California 94109; Robert Lavitt, Schwerin, Campbell, Barnard, Iglitzin
and Lavitt, LLP, 18 West Mercer Street, Suite 400, Seattle, Washington 98119-3871. Of
Attorneys for Respondents.

SIMON, District Judge.
This matter is one of five separate 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
Page 1 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 Agreement between the
Port and IBEW—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, and ILWU
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 work slowdowns and
stoppages at Terminal 6. Dkt. 50. The Court’s preliminary injunction also enjoined Respondents
from threatening or coercing any business with the object of forcing that business to cease doing
business with the Port. Id. On August 15, 2012, Respondents sent a letter to each of four
shipping companies (the “Carriers”) that call on the Port. The letters stated that Respondents
planned to prosecute lost work opportunity grievances under the PCLCD against the Carriers for
reefer work assigned to IBEW members. Petitioner alleges that Respondents’ letters are intended

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.
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to force the Carriers to cease doing business with the Port and, as such, violate the Court’s
preliminary injunction. Before the Court is Petitioner’s motion for an order to show cause and
petition for civil contempt. Dkt. 55. For the reasons stated below, the Court finds that there is not
clear and convincing evidence that Respondents violated the Court’s preliminary injunction.
Accordingly, Petitioner’s motion for an order to show cause and petition for civil contempt is
denied. Also before the Court is Respondents’ motion to strike Petitioner’s motion for an order to
show cause and petition for civil contempt. Dkt. 57. Respondents’ motion to strike is denied as
moot.
FINDINGS OF FACT
On July 3, 2012, the Court issued a preliminary injunction pursuant to § 10(l) of the
NLRA, 29 U.S.C. § 160(l). 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[.]
Dkt. 50 at 3.
On August 15, 2012, Respondents sent letters to Hanjin Shipping America, LLC, K Line
America, Inc., Hapag-Lloyd America, Inc., and Cosco North America, Inc. Dkt. 56-1. Each letter
stated that “Locals 8 and 40 will prosecute lost work opportunity grievances against your
company for each refrigerated container for which the work of plugging/unplugging and
monitoring is subcontracted to others outside the [collective bargaining agreement] bargaining
unit.” Id.
Based on those letters, Petitioner petitioned this Court to adjudge Respondents in civil
contempt of the Court’s preliminary injunction. Dkt. 55. Petitioner contends that Respondents’

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August 15, 2012 letters are “in direct violation of” the Court’s preliminary injunction. Pet.’s
Mem. in Support at 3 (Dkt. 56). The letters form the sole basis of Petitioner’s petition for
contempt. 2
CONCLUSIONS OF LAW
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 Transmission Parts Corp., 768 F.2d 1001, 1022 (9th Cir.
1985). 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).
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
2

Petitioner later filed a motion for an expedited hearing. Dkt. 59. In this motion,
Petitioner stated that “Respondents have continued their contumacious conduct by pursuing
numerous additional grievances against neutral employers, as threatened in the letters[.]” Dkt. 59
at 2. Nonetheless, at oral argument counsel for Petitioner made clear that the petition for
contempt was based only on the letters and not on the grievances: “It is not the grievances and
not the arbitrations and not the litigation. It is actually just the letters, the letters that were sent to
the neutrals who were the very subject of the [preliminary injunction].” Transcript at 19
(Dkt. 63).
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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)).
Petitioner has failed to satisfy the third prong of the test for civil contempt because the
evidence does not clearly and convincingly establish that Respondents violated a reasonable and
good faith interpretation of the Court’s preliminary injunction (the “Injunction”). Based on the
context in which the Court issued the Injunction and its specific provisions, Respondents could
have reasonably and in good faith believed that the Injunction did not forbid them from
threatening to pursue collective bargaining agreement grievances against the Carriers.
The text of the Injunction contains both specific restraints based on the allegations in the
Petition for a preliminary injunction (“Petition”), Dkt. 1, and general limitations based on
§ 8(d)(4)(ii)(B) of the NLRA, 29 U.S.C. § 158(b)(4)(ii)(B). In the Petition, Petitioner alleged that
Respondents threatened ICTSI that it would “shut down ICTSI’s operations” and that
Respondents engaged in work slowdowns and stoppages at Terminal 6. Pet. at ¶ 11 (Dkt. 1). The
Injunction was specifically tailored to address these allegations. Thus, the Injunction specifically
enjoins Respondents from “engaging in slowdowns[ and] stoppages.” Dkt. 50 at 3. It also
specifically forbids Respondents from engaging in conduct intended to force ICTSI to stop doing
business with the Port. Id. The text of the Injunction does not expressly and specifically restrain

Page 5 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Respondents from taking any actions toward the Carriers. 3 There is no doubt that Respondents’
letters to the Carriers do not violate the express and specific provisions of the Injunction targeted
to address the allegations in the Petition.
In addition to the express and specific terms designed to address the allegations in the
Petition, the Injunction also contains more general terms patterned after § 8(d)(4)(ii)(B) of the
NLRA. Section 8(d)(4)(ii)(B) proscribes a union from “threaten[ing], coerc[ing], or restrain[ing]
any person engaged in commerce” where an object of the union’s conduct is to force or require
“any person to ... cease doing business with any other person.” 29 U.S.C. § 158(b)(4)(ii)(B).
Based on this provision, the Injunction generally forbids Respondents from “threatening,
coercing, or restraining . . . any . . . person engaged in commerce where in any case an object
thereof is to force or require . . . any . . . person engaged in commerce . . . to cease doing business
with the Port or any other person engaged in commerce[.]” Dkt. 50 at 3.
Respondents could have reasonably and in good faith believed that sending the letters to
the Carriers did not violate the more general injunctive terms that were based on § 8(b)(4)(ii)(B).
To find that Respondents violated the more general injunctive terms, the Court would essentially
have to find that Respondents violated § 8(b)(4)(ii)(B). Whether sending letters to the Carriers
violates § 8(b)(4)(ii)(B) is, however, a complex legal question subject to reasonable differences
of opinion. In fact, the issue is, in part, the subject of a separate § 10(l) case, Hooks v. Int’l
Longshore & Warehouse Union, Case No. 3:12-cv-01691-SI (D. Or.), pending in this Court. In
that action, this Court determined, inter alia, that the NLRB would likely find that grievances
filed by ILWU against the Carriers violated § 8(b)(4)(ii)(B). The Court made that determination,

3

The Injunction does require that Respondents send a notice to the Carriers, among
many others, informing them that Respondents intend to comply with the Injunction and the
NLRA.
Page 6 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

however, only after a long and careful consideration of the circumstances and case law. The
answer was not obvious. For the same reasons, the answer is not obvious here, either. While
Respondents could have understood the Injunction to forbid sending letters to the Carriers,
Respondents could have also reasonably and in good faith interpreted the Injunction such that it
did not forbid sending letters to the Carriers. 4
Where a party’s conduct “appears to be based on a good faith and reasonable
interpretation of the court’s order, he should not be held in contempt.” Vertex Distrib., Inc. v.
Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982) (internal quotation marks,
parentheses, and citation omitted); see also Kukui Gardens Corp., 675 F. Supp. 2d at 1025
(declining to hold parties in contempt where court’s order could be reasonably interpreted not to
forbid parties’ conduct); Latino Officers Ass’n City of New York, Inc. v. City of New York, 558
F.3d 159, 164 (2d Cir. 2009) (finding of contempt is “inappropriate if there is a fair ground of
doubt as to the wrongfulness of the defendant’s conduct” (internal quotation marks and citation
omitted)). The Court, therefore, declines to hold Respondents in contempt.
MOTION TO STRIKE
Instead of filing a response to Petitioner’s petition for civil contempt, Dkt. 55,
Respondents filed a motion to strike. Dkt. 57. Respondents contend that Petitioner’s petition for
contempt should “be stricken and/or denied outright[.]” Mot. to Strike at 1. In light of the Court’s
decision denying the petition for contempt, Respondents’ motion to strike is denied as moot.

4

Respondents could have reasonably and in good faith believed that sending letters to
the Carriers did not violate the Injunction in this case. On November 21, 2012, this Court entered
a new injunction in Hooks v. Int’l Longshore & Warehouse Union, Case No. 3:12-cv-01691-SI
(D. Or.). If Respondents were to send the same letters to the Carriers in the future, the letters
would likely violate the injunction entered in that case.
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CONCLUSION
Petitioner’s motion for an order to show cause and petition for civil contempt, Dkt. 55, is
DENIED, and Respondents’ motion to strike, Dkt. 57, is DENIED as moot.
IT IS SO ORDERED.
Dated this 10th day of December, 2012.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

Page 8 – FINDINGS OF FACT AND CONCLUSIONS OF LAW