Pomerantz v. International Longshore and Warehouse Union, Local 4, et al

Filing 30

OPINION & ORDER: The Board's Petition (doc. 1 ) and Motion for Order Granting Preliminary Injunctive Relief (doc. 17 ) are GRANTED. Signed on October 15, 2013 by Chief Judge Ann L. Aiken. (eo) Copy sent to U.S. Marshals service.

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

ANNE P. POMERANTZ, Acting
Regional Director of the
Nineteenth Region of the
National Labor Relations Board,
for and on behalf of the
NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 4,
Respondent,
arid
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL S,
Respondent,
and
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION,
Respondent.

1 - OPINION AND ORDER

Case No. 3:13-cv-1676-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Petitioner Anne

Pomerantz,

in

her

capacity as

the Acting

Regional Director of the National Labor Relations ~oard,

Region

19

of the

(the Board), brings this Petition pursuant to

National

Labor

injunctive
and

Relations

relief

Warehouse

Warehouse

against

Union

Union

Act

(the

Act),

Respondents

10 (1)

§

seeking

preliminary

International

Longshore

Local

4,

International

Longshore

and

8,

and

International

Longshore

and

Local

Warehouse Union (collectively, the Union)
The
labor

Board

alleges

that

with

respect

practices

(Tidewater),

as

a

result

the

has

to
the

of

Union's

engaged

Tidewater

Marubeni-Columbia

Grain,

Specifically,

Board asserts

the

Union

Inc.

the

unfair

Lines,

Inc.

dispute

labor

the

(CGI),
that

Barge

in

with

primary

Union has

employer.
engaged in

unlawful secondary picketing of Tidewater barges and moorages on
the

Snake

requiring

and Columbia

Rivers,

Tidewater

cease

to

with
doing

the

intent

business

of

with

forcing

or

CGI

to

or

intercede in the Union's labor dispute with CGI. The Board seeks
preliminary
picketing

injunctive
activities

relief
until

enjoining
the

the

Board

Union's

resolves

unlawful.

Tidewater's

pending charge against the Union.
The Union adamantly disputes the charge and maintains that
its members are
to

free ·speech.

simply exercising their First Amendment
The

2 - OPINION AND ORDER

Union

contends

that

the

National

rights
Labor

Relations Act,

as interpreted by the Supreme Court, does not ban

picketing activity directed at
as

Tidewater,

who

performs

a

neutral

services

secondary party,

such

are

to

that

"essential"

a

primary employer's operations.
On October 10,
for

the

Board,

evidence

and

entitled

to

picketing
Rivers.

the court heard argument from counsel

Tidewater,
arguments

and

the

Union.

presented,

I

After

review

find

that

the

injunctive

relief

that

Tidewater's

facilities

on

Snake

following

constitutes

of

enjoins

preliminary

at

The

2013,

the

the court's

the

Board

is

Union

and Columbia

Findings of

Fact

and Conclusions of Law.
BACKGROUND

Since the
working

in

1930s,

the Union has

Pacific Northwest

represented grain handlers

grain elevators.

Through dispatch

halls in Portland and Vancouver, Locals 4 and 8 hire out members
for

work

grain

Currently,

the

in

Union

the
is

region's

grain

embroiled in a

elevators.

export

labor dispute with CGI

and Mitsui-United Grain Corporation (UGC)
CGI

is

along the
Port

of

facilities)

a

grain

Snake River
Wilma
At

exporter

with

in Central

near

Clarkston,

these

facilities,

grain

Ferry,

elevator

Washington and at
(the

Washington
CGI

facilities

grain

is

the

upriver

loaded

onto

barges and then transported down the Snake and Columbia Rivers
to CGI's grain export terminal at the Port of Portland.
3 - OPINION AND ORDER

Tidewater is a Delaware corporation engaged in the business
of

transporting various

cornmodi ties

up

and

down

the

Snake

and

Columbia Rivers by tug and barge. Tidewater has a transportation
agreement

with

CGI

to

transport

grain

from

CGI's

upriver

facilities to CGI's downriver export terminal in Portland.
Initially,

Tidewater

brings

tie-off

location,

called

upriver

facility.

A spud barge

place by steel pipes the

riverbed.

facility,

After

a

an

"spud
is

empty

barge

barge,"
a

to

floating

from

the

a

nearby

relevant

CGI

dock anchored in

called "spuds" - drilled vertically into

an

empty

barge

is

towed

to

CGI employees load the barge with grain,

is towed back to the spud barge.

the

upriver

and the barge

Tidewater then transports the

loaded barge down the Snake and Columbia Rivers to one of three
spud

barges

River.
export

1

located

near

Hayden

Island

on

the

lower

Columbia

From there,

the loaded barge is towed downriver to CGI's

terminal

the

at

Port

of

Portland.

CGI

employees

1

unload

At oral argument, the Board represented that the spud barges and
tie-offs at issue are either owned or leased by Tidewater. The
Union did not dispute this assertion. According to a Vice
President of Tidewater, the moorage near Central Ferry is not
actually a spud barge, but rather two barges tied to the beach.
Pet.'s Ex. 4 at 3. For the sake of brevity, the court refers to
Tidewater's spud barges and tie-off locations collectively as
"spud barges."
Although the Union asserts that Tidewater barges used to
transport the grain are "CGI barges" or "leased" to CGI, it
presents no persuasive evidence to support its assertion.
Compare Mullane Decl. at 2 with Curcio Decl. at 2 (Ex. B to
Pet.' s Reply) .
4 - OPINION AND ORDER

and

store

grain

the

grain

vessels.

and

ultimately

Tidewater

transports

load

it

empty

onto

barges

ocean-bound
back

to ·the

spud barges, and the process is repeated.
Tidewater's Central Ferry and Wilma spud barges are located
approximately one mile from CGI's upriver facilities.
4

at

these

4.

Tidewater

spud barges

has

three

spud

barges

near

Hayden

are between three and five miles

export terminal at the Port of Portland.

Pet.'s Ex.
Island;

from CGI' s

Curcio Decl.

at 3

(Ex.

after

the

B to Pet.' s Reply) .
The

Union

and

CGI's

labor

dispute

began

bargaining agreement between the Union and the Pacific Northwest
Grain Handlers

Association

expired in September 2012.

(of

which CGI

and UGC

are members)

Union-represented employees continued

to work without a contract while a new contract was negotiated.
Contract negotiations between the parties eventually reached an
impasse,

and in February of this year UGC locked out its Union-

represented
terminal;

workforce

in May

Portland export
have

hired

"terminals,
from

from

2013,

CGI

terminal.

replacement
and that

upriver

those

facilities

its

followed

The

Union

workers

load

suit

their

outbound

export

respect

that

CGI

to

its

and UGC

respective

continue to

admits it has no dispute with Tidewater.

5 - OPINION AND ORDER

with

contends

at

facilities
and

Washington

Vancouver,

export

receive grain

ships.

The

Union

In August

2013,

the

Union

CGI's upriver facilities.
or

three

small-craft

feet in length,
out.

recreational

vessels,

with signs stating,

our

water-'-borne

picketing of

The Union picketers rotate between two

Columbia Grain unfair.

Grain Respect

began

Rights.

ILWU";
ILWU";

averaging

for example:

about

"We are' locked

"We are locked out.
and

"An

19

Injury to

Columbia

One

is

an

Injury to all, Local 4." Pet.'s Exs. 3, 4, 11, 14.
Tidewater

tug

(IBU),

would

Union

crews,
not

represented

cross

the

by

the

Union's

Inlandboatmen's

water-borne

picket

lines to "spot" a barge in or out of CGI's upriver facilities.
Accordingly, CGI hired a non-union transport company,
to

tow

the

barges

between

nearby spud barges.
transport

the

CGI's

upriver

From the spud barges,

barges

downriver

to

Hayden

JT Marine,

facilities

and

the

Tidewater intended to
Island per

its

usual

practice and agreement with CGI. CGI had hired another non-union
company to shuttle barges between the Hayden Island spud barges
and CGI's export terminal.
On August 19,
Union

picketers

2013,

followed

the Board alleges that a boat carrying
two

loaded

Tidewater

barges

as

JT

Marine transported them from CGI's Wilma facility to the nearby
spud barge.

When a

Tidewater tugboat approached the spud barge

to pick up the loaded barges, the Union's picketers raised their
signs and attempted to_maneuver their boat between the-Tidewater
tugboat and the loaded barges. ~ventually,
6 - OPINION AND ORDER

the Tidewaier tugboat

left
the

without

the

Union's

loaded

grain

picketing

activity

tugboat passed the spud barge.
The

Board

further

maneuvered

their

moored at

Tidewater's Wilma

up the barge.
the

tugboat

The

from

The

resumed

Board

contends

whenever

a

that

Tidewater

Pet.'s Ex. 3.

alleges

picketers

from its spud barge,

barges.

that

boat

on August

between

fuel

dock,

a

23,

2013,

Union

loaded

grain

barge

approximately

600

yards

and a Tidewater tugboat attempting to pick

Board alleges
picking

up

that

the

Union picketers prevented

barge

after

several

attempts.

E.g., Pet.'s Exs. 11, 12.
Also

on

August

23,

followed

a

picket

boat

Hayden

Island middle

barges.
between

See Pet.' s
the

2013,

Tidewater

spud barge

Exs.

spud

13-14.

barge

and

approached the spud barge,
toward

the

barges.

The

few hundred

his

"We

fide

picket

line

are
9f

back to the dock.";
Pet.' s
UGC.

Ex.

14.

tugboat
to

alleges
as

retrieve

it

that

a

Union

approached

three

empty

the

grain

A second picket boat was located
the

shoreline.

maintains

feet,

picketing

the

Board

As

the

tugboat

the second picket boat began to move

Board

came within a
bullhorn:

the

ILWU. ";

that

when

the

tugboat

the picketer announced through
these

barges.

"Turn

your

This

tug

is

around

a

bona

and

go

and "Let's run these scabs off our river."

The picketer also specifically mentioned CGI and

Ultimately,

the tugboat headed downriver without the three

empty Tidewater barges.
7 - OPINION AND ORDER

Pet.'s Exs. 13-14.

Finally,

the

Board

alleges

that

on

August

26,

2013,

two

Union picket boats were anchored about 150 feet from Tidewater's
spud barge near Hayden Island upper,
five

empty grain barges.

the

south

barge.

When

boarded
"ILWU

shore

a

near

the

Local

8,

Three more picketers were

Tidewater's

three

23-foot

with one boat anchored near

picketers

saw

a

boat

and

Unfair";

"We

Island

held
are

aluminum

Lockout

Hayden

standing on

up

spud

tugboat,

Tidewater

middle

they

signs

Locked

that

Out.

read:

Columbia

Grain"; and ""ILWU Longshoremen Locked Out." Pet.'s Ex .. 11.
Tidewater

tugboat

crews

continue

to

honor

the

Union's

water-borne pickets at Tidewater spud barges and will not cross
the

picket

Tidewater

lines
has

to

retrieve

filed

a

a

Tidewater

grievance

barge.

alleging

that

As

a

its

result,

employees'

actions violate the IBU/Tidewater labor agreement.
On August 26,
in

Case

Director

2013,

19-CC-111986.
for

the

believe

the

that

The

Region

investigation,

Tidewater filed a charge with the Board
charge

referred

Following

19.

Regional
Union

was

Director

is

a

review

found

engaging

to

in

the

of

Regional

the

reasonable
unlawful

field

cause

to

secondary

picketing of Tidewater.
Accordingly,

on

September

18,

2013,

the

Regional

Director

issued a Complaint alleging that the Union is engaged in unfair
labor practices in violation of §§ 8 (b) (4) (i)
Act.

See 29 U.S.C.

§

8 - OPINION AND ORDER

158 (b) (4).

and

On November 5,

(ii) (B)

2013,

a

of the
hearing

on the

Board's allegations

is

scheduled to

commence before an

Administrative Law Judge_
On September 20, 2013, the Board filed the instant Petition
for Preliminary Injunctive Relief. The Board asserts that it has
established the likelihood that the Union is engaging in unfair
labor

practices,

necessary

to

and

enjoin

that
the

preliminary

ongoing

harm

injunctive
to

relief

Tidewater

and

is

other

neutral parties while the Board's Complaint is pending.
DISCUSSION

The Board filed the instant Petition pursuant to§ 10(1) of
the Act,
behalf

which authorizes
of

the

appropriate

Board,

injunctive

an officer or
to

petition

relief

upon

regional

attorney,

district

a

finding

court

"reasonable

that a charge alleging unfair labor practices is true.
§ 160 (1).

Further,

injunctive

relief

v.

for

cause"

29 U.S.C.

§ 10 (1)

authorizes a district court to grant

that

deemed

is

Avanti Health Systems, LLC,
Overstreet

on

United

"just

and

proper."

661 F. 3d 1180, 1187

Broth.

of

Carpenters

Small

v.

(9th Cir. 2011);

& Joiners

of

Am.,

Local No. 1506, 409 F.3d 1199, 1206 (9th Cir. 2005).
However,
believe

that

the
an

fact

that

unfair

the

labor

Board has

practice

lS

reasonable

cause to

occurring

does

not

necessarily mandate injunctive relief by this court. Rather, the
court

must

proper"

determine

under

whether

traditional

9 - OPINION AND ORDER

the

relief

equitable

sought

criteria.

is

See

"just

and

Small,

661

F.3d at 1187;
must

show

Overstreet,

a

irreparable

likelihood

harm,

and

409 F.3d at 1206-07.
of

that

success
the

on

balance

Thus,

the· merits
of

1187

(citing Winter v.

and

hardships

of

and

the

Small,

661

Council,

555

public interest weigh in favor of the relief sought.
F.3d at

the Board

Natural

Res.

Def.

request

for

injunctive

u.s. 7, 20 (2008)).
Further,
implicates

given

the

that

Union's

the

First Amendment

rights,

the

relief

Board must

make "particularly strong showings" of the likelihood of success
on the merits
Publ.,

LLC,

and of

irreparable harm.

593 F. 3d 950,

958

McDermott

(9th Cir.

2010);

v.

Ampersand

Overstreet,

409

F.3d at 1208 n.13. The Board maintains that the court should not
utilize
does

not

However,
the

the

protect

need

the

not

Union's

1209).

"'decide

[Union's

does.'" McDermott,
at

the

standard,

because
unlawful

the

First

secondary

Amendment
picketing.

in determining whether the heightened standard applies,

court

protect

heightened

whether

picketing] ,

or

593 F.3d at 959

Instead,

the

court

the
even

First

Amendment
it

probably

(quoting Overstreet,

409 F.3d

"need

whether

does

only

determine

whether

granting the Regional Director's injutiction request would create
'at least some risk that constitutionally protected speech will
be enjoined."' Id.

(quoting Overstreet,

409 F.3d at 1208 n,13).

I find that the requested relief would pose "at least some risk"
to

protected

speech

10 - OPINION AND ORDER

in

this

case

and

apply

the

heightened

standard accordingly.
A.

Likelihood of Success on the Merits
Resolution of the

Board's

Petition rests

in

large part on

whether the Union is engaging in picketing activity directed at
a

primary

employer,

CGI,

or

whether

its

directed at a neutral secondary party,

picketing

Tidewater.

activity

is

If the Union's

picketing is deemed secondary,

the court must determine whether

the

force

picketing

is

intended

to

Tidewater

to

cease

doing

business with CGI or otherwise embroil Tidewater in the Union's
labor dispute with CGI.
Fertinent to this case,
union

to

refuse

to

articles,
or

"induce

materials,

is

selling,

the products"
other

engaged

"fore [e]

is

in
or

engaged

in

handle

commodities,"

handling,

29

renders it unlawful for a

another

otherwise

or

require [e]

commerce
any

to

commerce;

transporting,

of another,

person."

prohibition

to

or

or

another

conduct

using,

encourage"

"transport,

restrain"

such

or

8 (b) ( 4)

§

"threaten,

when

"an

to

goods,
coerce,

object"

any person to

of

cease

or otherwise dealing in

"or to cease doing business with any

U.S.C.

§§

158 (b) (4) (i)

"directed toward what

is

and

(ii) '(B).

known as

the

This

secondary

boycott whose sanctions bear,

not upon the employer who alone is

a

upon

party to

the

dispute,

concern in it." Local 761,
Workers v.

but

some

Int'l Union of Elec.,

Nat' 1 Labor Relations Bd.,

11 - OPINION AND ORDER

third party who

has

no

Radio & Machine

(General Elec.),

366 U.S.

667,

672
In

(1961)
other

"picketing
dispute,
cease

(citation and internal quotation marks omitted).
words,

against

with

doing

an

the

an

Act

prohibits
with

employer

object

business

of

a
it

forcing

with

a

whom
that

primary

labor

union

does

not

secondary

employer"

have

employer

or

to

471

F.3d 399,

omitted) ;

Bd.

v.

402

Local

(2d Cir.

Iron Workers

Int' 1 Broth.

2006)

Dist.

Nat'l Labor Relations Bd.,

3,

of Elec.

a
to

become

involved in the union's dispute with the primary employer.
Labor Relations

from

Nat'l

Workers,

(quotation marks and citation

Council

of

Pac.

913 F.2d 1470, 1475

Nw.,

Local

2 9 v.

(9th Cir. 1990).

The Board cannot and does not contest the Union's right to
picket CGI' s

upriver facilities;

such picketing is "traditional

primary activity" targeting the primary employer.
366 U.S.

at 672,

681.

picketing

activity

secondary

picketing

Rather,
at

the Board alleges that the Union's
spud

Tidewater's

directed

General Elec.,

at

a

neutral

barges

constitutes

secondary

employer.

The Board emphasizes that CGI does not have grain facilities or
operations on Tidewater's spud barges;

thus,

that

could not be directed at

CGI

the Union's picketing activities
and,

instead,

are

intended

to

force

the Board maintains

or

restrain

Tidewater

from doing business with CGI.
Generally,

"[a]

union may

picket

a

primary

employer

at

a

job situs under the control of a secondary employer only if the
picketing

is

primary

12 - OPINION AND ORDER

in

nature."

Nat' 1

Labor

Relations

Bd.

v.

Gen.

Truck Drivers,

Warehousemen,

Contra Costa Cnty., Local No. 315
1021

(9th Cir.

1994).

Helpers

Auto.

&

Employees of

(Local No. 315), 20 F.3d 1017,

Picketing at a

secondary employer's site

is considered primary activity if the site is proximate to the
primary employer's premises and the secondary employees provide
"essential" services related to the primary employer's "regular
operations." United Steelworkers of Am.,
Relations Bd.
Elec.,

(Carrier),

376 U.S.

492,

AFL-CIO v.
499-500

Nat' 1 Labor

(1964);

General

366 at 680-81. This rule is commonly known as the related

work doctrine. Local No. 315, 20 F.3d at 1022.
Here,

the

Union

relies

on

the

related

work

doctrine

in

opposing the Board's Petition and request for injunctive relief.
The

Union

services

-

that

argues
the

empty barges -

Tidewater

employees

retrieval of loaded barges

are

performing

and the deli very of

that are essential to CGI's daily operations of

distributing and exporting grain. The Union emphasizes that none
of the picket signs contain statements directed at Tidewater and
instead
maintains

target
that

the

primary

picketing

employer,
Tidewater

CGI.

the

Thus,

employees

Union

engaged

in

transporting barges used for CGI grain; even at Tidewater's spud
barges, constitutes protected primary activity.
Unfortunately for the Union,
related work doctrine

does

not

the Board is correct that the
protect picketing at

site with no primary nexus or presence.
13 - OPINION AND ORDER

a

neutral

See General Elec.,

366

U.S.

at 679-80

(related work doctrine applied to neutral gate on

primary premises);

Local No.

315,

20

F. 3d at

1022.

Granted,

in

Carrier the.Supreme Court extended the related work doctrine to
picketing

on

neutral

property,

a

railroad

spur

adjacent to the primary employer's premises.

track,

However,

located

the Court

emphasized that the spur track essentially served as an entrance
to the primary's premises:
The railroad gate adjoined
fact the railroad entrance
For the purposes of
§ 8 (b)
proximate and related to

company property and was in
gate to the Carrier plant.
( 4) picketing at a situs so

the employer's day-to-day
operations is no more illegal than i f it had occurred
at a gate owned by Carrier.

Carrier,

376 U.S.

primary activity,

at

500

(emphasis

added).

Thus,

to

constitute

the neutral site must afford some nexus to the

primary employer's premises and its daily operations.
Consequently,
work

doctrine

"neither

the

does

owned ·by

Ninth Circuit

not
the

apply

to

primary

has

union

employer

primary employer's premises." Local No.
so

ruling,

that

the

the

Ninth

Ci;rcui t

Union's
at

[neutral

in

the

picketing

on

nor

315,

explained:

activities

held that

property

proximate

to

the

20 F.3d at 1022.

"We

picketing

related

are

not

In

persuaded

irrespective

of

the

I

location

the

permissible primary boycott,

Id.

at

1023.

14 - OPINION AND ORDER

be

deemed

a

just because the neutral employees

perform work necessary to the
employer."

can

property]

Thus,

normal
the

operations
Ninth

of the primary

Circuit

found

that

neutral

gates

neutral

drop-off

proximate"
1024;
798

to

at

a

secbndary

site

one

gate

used

the

see also Indust.
(1979),

doctrine

aff'd

did not

employer's

mile
by

away
the

rail
were

Workers Local No.

659

F.2d 252

not

primary

(D.C.

apply where premises

a

"reasonably

employer.

657,

Cir.

~nd

terminal

Id.

at

245 N.L.R.B 796,

1981)

(related work

of primary employer and

neutral party were "unconnected," "geographically distinct" and
had entrances one-quarter of a mile apart) .
Here,
the

it

spud

is

undisputed that

barges

for

CGI

CGI

grain

employees

operations.

do not

utilize

Further,

it

is

undisputed that Tidewater's Hayden Island spud barges are three
to

five miles

from CGI' s

export terminal,

and its

Snake River

spud barges are approximately one mile from nearby CGI's upriver
facilities.

Thus,

proximity to CGI' s

the

premises,

related work doctrine;
circumstances.
Local No.

spud

are

not

in

and the Union cannot

reasonably
rely on the

it simply "has no application" in these

Local No.

657,

barges

315,

20

245 N.L.R.B at

F.3d at 1022;

798-99.

To

rule

Indust.

Workers

otherwise would

extend the doctrine far beyond its intended parameters.
Alternatively,

the

Union

argues

that

CGI

excessive involvement over Hayden Island upper,
"primary

situs"

to

Hayden

Island

barges

transporting

that

upper

location.

spud
grain

15 - OPINION AND ORDER

barge
from

The
is

CGI

Union

UGC.

asserted

so as to extend
asserts

dedicated
and

has

that

exclusively
The

Union

the
to
also

maintains

that

CGI

owns

the

transport

company

now

shuttling

barges between Hayden Island and its export terminal,

and that

CGI has hired security personnel for Hayden Island upper.

Thus,

the Union maintains that Hayden Island upper, as a primary situs
of CGI, is a lawful target of primary picketing.
I

am not persuaded.

Even if Tidewater reserves its Hayden

Island upper spud barge for barges hauling CGI grain,
does not establish CGI's presence at Hayden Island.
Board

insists

that

CGI

neither

owns

the

this fact

Further, the

relevant

transport

company nor employs security personnel at Hayden Island,
Union presents no evidence to support its assertions.

and the

The Union

thus fails to show that Hayden Island upper is an extension of
CGI' s

primary situs.

Accordingly,

the

Board has made

a

str-ong

showing that the Union is engaging in secondary activity.
Even if the Union's picketing is presumptively secondary,
must

whether

determine

secondary."

Local

8 (b) (4) (i) (B),

No.

Union's

the

315,

20

F.3d

"objective

at

1024.

To

was
violate

I

not
§

secondary "[e]mployees must be induced; they must

be induced to engage in a strike or concerted refusal; an object
must be to force or require their employer or another person to
c~ase

doing business with a third person." General Elec.,

673. (citation
secondary
furtherance

omitted).

activity
of

Likewise,

must

the

16 - OPINION AND ORDER

same

be

under

"coercive"

prohibited

§

366 at

8 (b) (4) (ii) (B),
or

object.

"restraining"
Thus,

the
irt

secondary

activity

that

union's

dispute,"

"threaten[s]

is

"designed
Local

neutral

violates §

8(b) (4).

Inc.,

U.S.

456

to

enmesh

No.

parties

315,
with

neutral
20

parties

F. 3d

ruin

or

at

224

(1982)

(internal

the

1025,

substantial

Int'l Longshoremen's Ass'n v.

212,

in

and
loss"

Allied Int'l,

quotation

marks

and

citation omitted)
Here,

Union's

the

recreational-sized
the

Union

maintains

established
cannot

to

that

the

fact

CGI

transport

4,

if not
grain
11-14;

complied

States
that

Thus,

Coast

the

the

to

one

Guard.

Union's

Union's

to

rivers.

with

safety

when

General Elec.,

targets

implies

business

366 U.S.

at

to

the

refuse

with
674

CGI.
("[I]n

the absence of admissions by the union of an illegal intent,
nature

of

acts

performed

shows

the

and citation omitted); Local No. 315,
Notably,
of

the

the

rivers

"publicize"
admittedly

have

holding
dispute

directed

approaching Tidewater
17 -OPINION AND ORDER

up

their

with

their

not

(quotation marks

at

Rather,

CGI.

The

patrolling all

signs

picketing

spud barges.

the

20 F. 3d at 1025.

Union picketers ·are

and

their

intent.")

I

they attempt

conduct

doing

zones

Nonetheless,

Tidewater employees

cease

three

Further,

picketing

spud barges

coerce,
or

of

navigable

has

Tidewater

grain.

CGI
3,

at

consist

public,
it

United

induce,

Pet.'s Exs.

on

the

employees

transport

intent to
to

by

ignore

Tidewater

boats

pickets

at

areas

all .times
the

to

picketers

Tidewater

tugboats

Board contends,

and the

Union

does

not

deny,

that

the

Union. members

cease

picketing

activity when Tidewater tugboats are not present and resume such
activity when a Tidewater tugboat attempts to retrieve a barge.
I

find that the Union has all but conceded that the purpose of

picketing Tidewater

spud barges

is

to

induce Tidewater tugboat

crews to cease transporting CGI grain.
Further,

certain

aspects

of

the

Union's

picketing

likely

fall within conduct deemed "coercive" or "restraining." Indeed,
I

find

troubling

allegedly
tugboats

the

allegations

maneuvered
and barges

picket

their
when

the barges for transport.

that

the

tugs

several
boats

were

Union

picketers

between

attempting

Tidewater
to

Such activity is clearly "restraining"

if not "coercive" and poses a danger to all involved,
the

picketers.

Tidewater -

retrieve

Moreover,

directed

at

with the intent that Tidewater cease,

not CGI -

such

conduct

clearly

is

including

or

at least suspend, its transport of CGI grain.
In

sum,

I

find

that

the

that the Union is violating
by

picketing

encouraging
otherwise

Tidewater's

Tidewater

handle

goods,

Board has

made

§§

8 (b) (4) (i)

and (ii) (B)

spud

employees
materials,

barges,
to

thus

refuse
or

a

to

strong

of the Act

inducing
transport

commodities

coercing or restraining Tidewater employees,

showing

of

CGI,

and
or
or

with "an object" of

forcing or requiring Tidewater to cease handling or transporting
the goods, materials, or commodities of CGI.
18 - OPINION AND ORDER

B.

Irreparable Harm
The

Union's

Board

maintains

actions

business

operations

emphasizes
currently

have

that

at

"locked

grain

fleet.

Pet.' s

other

neutral

barge
the

and

up"

about

by

and

absent

will

impede

least

representing

affected

that

to

16.

Union's

of

harm

The

the

active

contends

no

connection

picketing,

as

their

that

Board

are

picketing,

Tidewater's
Board

Board

barges

unlawful

of

the

Tidewater's

Tidewater's

percent

with

relief,

commerce.

Union's

Further,

operations

to

interstate

the

thirty-five
Ex.

continue

twenty-two

due

injunctive

to

that

CGI

barges

are

are
also

"held hostage." 2
The

Union

responds

the

cannot

likelihood of irreparable harm for two reasons.
maintains

that

grievance

it

Tidewater

filed

under

has

adequate

its

collective

establish

First,

remedies

the Union

through

bargaining

a

the

agreement

with IBU; the Union asserts that the grievance procedure affords
Tidewater

the

opportunity

to

compel

its

employees

from honoring Union picket lines and to seek damages.

to

refrain

The Union

also argues that Tidewater may file a civil suit under the Labor
Management Relations Act and seek damages for the alleged unfair
2

While the Union asserted in briefing that the spud barges at
issue are used exclusively for barges transporting CGI grain;
the Board and Tidewater cl~rified at oral argument that the spud
barges are also used for barges carrying non-CGI products. In
fact, it is Tidewater's practice to string several barges
together for downriver transport, including barges which do not
contain CGI grain.
19 - OPINION AND ORDER

labor

practices.

Second,

the

Union

contends

harm to Tidewater is exclusively economic,

that

the

alleged

and that Tidewater's

potential lost business and economic injury does not constitute
irreparable
available.
The

harm

adequate

compensatory

relief

is

Ninth

Circuit
presume

labor

established

has

irreparable

practices

if

a

explained

likely

"while

injury with

generally,
unfair

that

a

irreparable

labor

likely not be cured by later relief."
1334,

prim~rily

and

1362

economic,

results

from

under the Act.
to

(9th

Cir.

2011)

practice

shown

Further,

retrieve barges

activity

is

along

HTH Corp.,

Tidewater's

that

is

that would

the economic loss is present,
secondary

likely

injury

is

Frankl v.

Although

district

regard to

with a present or impending deleterious effect

F.3d

otherwise

I disagree.

court may not
unfair

if

harm

650
is

"deleterious,"

likely

unlawful

Tidewater represents that its inability

is causing harm to

its

reputation and could

result in the permanent loss of business and jobs.
Accordingly,
showing of the
other neutral

I

find

that

likelihood of
parties

in

the

the

Board

has

made

a

strong

irreparable harm to Tidewater and
absence

of preliminary

in]uncti ve

relief.
C.

Balance of Hardships and Public Interest
When

court must

"considering
take

the

balance

into account

20 - OPINION AND ORDER

of

hardships,

the

district

the probability that declining to

issue

the

practice

injunction

to

reach

Board's

remedial

omitted)

Thus,

tips

in

its

will

fruition

permit
and

authority."

given

Small,

that

alleged

thereby

the Board argues

favor,

the

unfair

labor

render meaningless

661

F.3d at

1196

the

(citation

that the balance of hardships

the

eventual

resolution

of

the

Board's complaint will not remedy the ongoing harm to Tidewater.
The

Board

also

maintains

that

the

public

interest

advanced if the court grants injunctive relief,
is

intended

interstate

to

protect

commerce,

against

including

unlawful

secondary

will

be

because the Act

interference

picketing

of

with

neutral

parties.
The Union maintains that

the balance of hardships tips

in

its favor because the relief sought by the Board would undermine
the

Union's

ability

to

picket

in

dispute with CGI.

The Union argues

Amendment

outweighs

furtherance

rights

any

that
harm

the

Board's Complaint.

contends

interest

the

public

favors

its

risk to

suffered

pending resolution of the
that

of

by

primary

its

Tidewater

The Union

protecting

First

a

further
union's

right to picket.
For the reasons explained above,

I find that the balance of

hardships and the public interest tip in favor of the Board and
Tidewater.
will

If the Union's picketing is

continue

Union's

likely

to

suffer

unlawful

21 - OPINION AND ORDER

significant
secondary

not

enjoined,

economic

activity,

Tidewater

harm
as

well

from

the

as

the

potential permanent ·loss of business and jobs.

In contrast,

if

the Union is enjoined from picketing at Tidewater spud barges,
its members may still picket CGI's grain facilities or otherwise
engage in lawful primary picketing. Thus,

injunctive relief will

not prohibit the Union from publicizing its dispute with CGI.
CONCLUSION

For reasons explained above,· the Board's Petition
and

Motion

for

Order

Granting

Preliminary

(doc.

Injunctive

1)

Relief

(doc. 17) are GRANTED. Accordingly, IT IS HEREBY ORDERED:
Pending
proceedings

final

adjudication

before

International

the

and

International

Longshore

and

International

Longshore

and

employees,

Lines,

Inc.

or

person

require

engaged

commerce,

Relations
Union

Union

Warehouse

Board,

Local

Local

Union,

agents,

them are

hereby

or

any other person

affecting

or

Warehouse

coercing,

commerce,

including picketing,
force

Labor

administrative

and

8,

their

4'

the

officers,

affiliated

locals,

attorneys and all persons acting on their behalf or

threatening,

industry

pending

Warehouse

supervisors,

in participation with
from

the

National

Longshore

representatives,

of

restraining

restrained

Tidewater

engaged in commerce
any

manner

or

by

or

any

Barge
in an
means,

where in any case an object thereof is to

Tidewater
in

in

en'j oined and

Barge

commerce,

or

Lines,
in

an

Inc~,

or

industry

any

other

affecting

to refuse to perform services and/ or cease handling,

22 - OPINION AND ORDER

transporting,
cease
or

doing

any

or

otherwise

business

other

dealing

in

the

products

with Marubeni-Columbia

person

engaged

ln

of,
Inc.

or

commerce,

Grain,

an

or

in

to

(CGI),

industry

affecting commerce, or with each other.
Further,
4,

International Longshore

and Warehouse Union Local

International Longshore and Warehouse Union Local 8,

International

Longshore

and

Warehouse

Union

shall

and the

take

the

following affirmative action:
Provide

1.

each

their

of

officers,

supervisors,

agents,

affiliated locals,

all

acting

on

persons

them,

with

directive

a
to

copy

of

refrain

their
this

behalf

Court's

from engaging

representatives,

employees,
or

in

order

attorneys and

participation

and

a

clear

in any conduct

with

written

inconsistent

with this Order;
2.

Provide Tidewater Barge Lines,

Petition

and

with

a

copy

of

this

Inc.,

with a copy of the

Court's

Order

Granting

Petitioner's Request for Preliminary Injunctive Relief;
Provide

3.
notice
Granting

that

Tidew-ater

Respondents

Barge

will

Petitioner's Request

Lines,

comply
for

with

Inc.,

with

the

Court's

written
Order

Preliminary Injunctive Relief

and specifically will not engage in any conduct prohibited by
8

(b) (4) (i)

to,

and

engaging

(ii) (B)
in

of

the

picketing

restraining Tidewater,
23 - OPINION AND ORDER

Act,
or

including,
threatening,

but

not

§§

limited

coercing

or

or any other person engaged in commerce,

or

in

an

object

industry

thereof

person

engaged

commerce,

to

to

force

in

or

or

in

or

require
or

to perform

otherwise

doing business

commerce,

commerce,

commerce,

refuse

transporting,
cease

is

affecting

an

CGI,

industry

an

services

or

in
any

affecting

in

any

Tidewater,

in

dealing

with

where

or

industry

and/ or
the

cease

products

other

any

an

other

affecting
handling,
of,

or

or

to

engaged

person

commerce,

case

in

with

each

other; and
4.

Within twenty

( 20)

days of the issuance of this Order,

file with the District Court and serve a copy upon the Regional
Director

of

Region

responsible
with

19

officials

of
of

the
each

Board,
of

specificity how each of the

the

terms

of

the

Respondents

and

how

and

this

decree,

whom

Respondents

including

Respondents

sworn

Respondents

posted the materials

to

a

the

affidavit
which

has

exact

describes

complied with

locations

required under

have

from

distributed

this
the

where
Order

Court's

Order and directive.
IT

IS

FURTHER ORDERED that,

Court's Order,
take

those

to

assure

compliance with the

the United States Marshals Service IS DIRECTED to

actions

and prohibitions. set

deemed
forth

necessary

to

enforce

in this Order.

the

provisions

A copy of this Order

shall be served upon the United States Marshal for the District
of Oregon.
IT IS SO ORDERED.
24 - OPINION AND ORDER

DATED this

~
J'~. day of

October, 2013.

Ann Aiken
United States District Judge

25 - OPINION AND ORDER