Pomerantz v. International Longshore and Warehouse Union, Local 4, et al
Filing
78
Opinion and Order. The Petition for Contempt 68 is granted in part and denied in part. See formal order. Signed on 6/24/2014 by Chief Judge Ann L. Aiken. (rh)
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,
and
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 8,
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:
Before the court is Petitioner's Petition for Further Civil
Contempt
(doc.
Petitioner
68) .
seeks
an
finding
order
Respondents International Longshore and Warehouse Union and its
Locals 4 and 8
employees,
(the Union),
attorneys,
as well as their officers,
affiliated
locals,
and
all
agents,
members
persons acting in concert or participation with them,
and
in civil
contempt of the court's order and injunction issued on October
151
2013.
beginning
This
on
petition
April
12,
arises
2014
from
and
the
Union's
continuing
for
conduct
several
days
afterward.
BACKGROUND
On
October
15,
2013,
picketing Tidewater
Barge
the
court
Lines,
enjoined
Inc.
the
(Tidewater)
Union
from
pending
the
resolution of a proceeding before the National Labor Relations
Board
(NLRB).
between
Grain,
The Union's picketing arose from a labor dispute
the
Union
and
two
Inc.
(CGI)
and
Mitsui-United
Tidewater
alleged
that
grain
the
companies:
Union
Grain
was
Marubeni-Columbia
Corporation
engaging
in
(UGC).
unlawful
secondary picketing of Tidewater barges and spud barges on the
Snake River when Tidewater tugboats attempted to transport grain
barges to CGI' s
Union's
picketing
downriver grain facilities.
picketing
under
the
2 - OPINION AND ORDER
likely
National
constituted
Labor
I
agreed that
unlawful
Relations
Act
the
secondary
(NLRA)
and
enjoined
the
Union's
picketing
issued a final decision.
15, 2013); 29
However,
picketing
Tidewater
until
See Opinion and Order
the
(doc.
NRLB
30)
(Oct.
u.s.c. 158 (b) (4).
the Union did not cease its conduct and continued
Tidewater
October 31,
of
2013,
I
barges
and
spud
barges.
Accordingly,
on
found the Union in contempt and imposed a
suspended fine schedule.
Several months later,
in April 2014, members of Respondent
International Longshore and Warehouse Union,
Local 4
(Local
began water-borne picketing at a Tri-Cities Grain (TCG)
4)
facility
in Pasco, Washington. Specifically, on April 12, 2014, a Local 4
picket boat approached the Tidewater tug boat "Captain Bob" as
it attempted to retrieve a loaded Tidewater barge moored at TCG.
Apparently,
for
UGC.
the barge -
Ex.
A.
Barge 83 -
Three
was loaded with grain bound
individuals
on
the
picket
boat
picket signs that said "ILWU" and "UGC Unfair." See Exs.
waved
B,
C.
Captain Bob's crew eventually abandoned its attempt to reach the
barge. See Ex. B.
On Sunday,
attempted
to
April 13,
retrieve
2014,
Barge
83.
the Tidewater tug boat "Chief"
As
the
Chief
approached
barge,
Local 4' s picket boat again resumed picketing.
B,
Three
D.
individuals
waived
the
"ILWU"
and
"UGC
the
See Exs.
Unfair"
picket signs until the tug boat crew abandoned its attempt· to
reach the barge.
3 - OPINION AND ORDER
On Monday,
April 14,
2014,
the Tidewater tug boat "Rebel"
also attempted to retrieve Barge 83, still docked at TCG. Ex. E.
Once again, Local 4's picket boat displayed the signs "ILWU" and
"UGC Unfair" and picketed·the Rebel as it attempted to approach
the
barge.
Ex.
E
(and
video
exhibits) .
Eventually I
the
Rebel
left without the barge.
On Wednesday, April 16, 2014, several Local 4 members stood
near the entrance to Tidewater's
Pasco fuel
terminal,
signs that read "ILWU" and "UGC Unfair." See Ex.
Pasco
fuel
terminal
is
adjacent
to
TCG
and
E.
carrying
Tidewater's
shares
a
common
driveway. Additionally, Tidewater is part-owner of TCG. See Exs.
A, B. According to Petitioner and Tidewater, neither UGC nor CGI
has any affiliation,
presence,
or employees at or near the TCG
facility in Pasco.
When the Union discovered Tidewater's ownership interest in
TCG, the picketing ceased as of April 17, 2014. Until that time,
Barge
83
remained
preventing
at
Tidewater
position at TCG's dock.
TCG' s
dock
from
moving
See Ex. A.
to unload any grain from Saturday,
and
Tidewater
barges
was
downriver
unable
to
to
other
due
to
Local
another
empty
Consequently,
April
transport
customers.
4' s
picketing,
barge
into
TCG was unable
12 through April 17,
seven
additional
Tidewater
grain
allegedly
experienced a net loss of approximately $10,500 for each barge
that was not shipped downriver.
4 - OPINION AND ORDER
On April
18,
2014,
Petitioner moved for
an
order finding
the Union in contempt,
lifting the fine suspension, and awarding
fees
Tidewater
and
conduct
damages
in
petition,
to
October
2013
Petitioner
and
for
the
April
informed
the
Union's
2014.
court
contemptuous
Subsequent
that
an
to
in
ALJ
its
the
underlying NLRB proceeding had ruled against the Union and found
it had engaged in unlawful secondary picketing of Tidewater in
violation of
8 (b) ( 4)
§
of the NLRA. See Status Update
(doc.
7 3) .
A final decision is pending before the NLRB.
DISCUSSION
A
party
moving
violation of a
evidence.
Union, . 721
F. 3d
v.
Inc.
civil
contempt
specific and definite
convincing
Ass'n,
for
must
demonstrate
a
court order by clear and
Ahearn
v.
Int'l
1122,
1129
(9th
Cir.
McCord,
452
F.3d
1126,
Longshore
2013);
& Warehouse
Reno
1130
Racing
Cir.
(9th
Air
2006).
While the contempt "need not be willful," a party should not be
held in contempt if the contemptuous conduct is "based on a good
faith and reasonable interpretation of the court's order." Reno
Air Racing,
district
452 F.3d at 1130
court
generally
(citations omitted).
must
necessary
to
secure
discretion
to
establish appropriate
San
compliance,
impose
Cnty.
of
Francisco,
2012)
(citations omitted).
5 - OPINION AND ORDER
868
F.
the
the
minimum
district
sanctions."
Supp.
2d
"Although the
928,
sanction
court
Lam v.
939
retains
City
(N.D.
&
Cal.
Petitioner
contends
that
the
Union
violated
order by picketing Tidewater at the TCG facility,
not
affiliated
with
UGC.
the
a neutral site
emphasizes
Petitioner
court's
the
that
injunction prohibited the Union's picketing of Tidewater if the
purpose of such picketing was
to coerce or restrain Tidewater
from
providing
doing
business
another company.
with
or
services
for
CGI
or
In response, the Union argues that Petitioner's
interpretation of the court's injunction expands its purpose and
scope
and
would
facilities.
point
of
prohibit
The Union's
the
lawful,
argument
Petitioner's
primary
is
initial
picketing
not well taken.
petition
and
at
UGC
The whole
this
court's
injunction was to enjoin the Union's picketing of Tidewater at
neutral,
secondary locations,
and the injunction was entered in
that context. Opinion and Order at 13-18. Regardless,
does not
Petitioner
seek to expand the injunction's prohibitions;
Petitioner
seeks
to
enjoin the
Union's
rather,
continued picketing of
Tidewater at neutral sites.
The
violate
Union
the
specifically
directed
at
next
argues
that
Local
court's
injunction,
prohibits
picketing
the
Union's
labor
4's
conduct
because
at
dispute
did
not
the
injunction
Tidewater
facilities
with
The
CGI.
Union
emphasizes that the April picketing did not occur at a Tidewater
f,acility
and
addressed
Further,
the Union contends that it was unaware of Tidewater's
6 - OPINION AND ORDER
the
labor
dispute
with
UGC,
not
CGI.
ownership interest
in TCG until April
16 or
17,
when Local
4
immediately ceased picketing.
However, the Order specifically enjoined the Union from
threatening, coercing, or restraining Tidewater Barge
Lines r Inc.
in any manner or by any means,
including picketing,
where in any case an object
thereof is to force or require Tidewater Barge Linesr
Inc.
to refuse to perform services and/ or cease
handling r transporting r or otherwise dealing in the
products ofr or to cease doing business with MarubeniCol umbia Grain r
Inc.
(CGI) r
or any other person
engaged in commerce,
or in an industry affecting
commerce, or with each other.
Opinion and Order at 22-23
injunction
was
not
(emphasis added).
limited
the
to
Thus,
Union's
the court's
Tidewater's spud barges or its labor dispute with CGI.
Instead,
the order enjoined all secondary picketing of Tidewater,
when
the purpose
of
such picketing was
to
at
picketing
"force
or
i.e.,
require"
Tidewater to "refuse" or "cease" doing business with CGI "or any
other
person
violated the
TCG
engaged
court's
facility,
otherwise,
the
a
in
commerce."
Id.
Accordingly,
Local
injunction by picketing Tidewater at
neutral
evidence
site.
Although
submitted makes
the
clear
Union
that
4
the
argues
Local
4's
picketing was targeted at Tidewater tugs attempting to retrieve
Barge 83 from TCG's dock. Exs. B-E.
Again,
understand
I find it difficult to accept that the Union did not
that
the
court's
order
prohibited
the
Union
from
picketing Tidewater at a neutral site, regardless of whether the
7 - OPINION AND ORDER
site was a "Tidewater location."
preceding
the
Conclusion
and
Indeed,
Order
the entire discussion
discussed
and
analyzed
whether the Union was engaging in unlawful secondary picketing
of
Tidewater
at
a
neutral
site.
Opinion
and
Order
at
11-18.
Given that UGC is not affiliated with TCG and has no presence at
the TCG Pasco facility, the TCG dock is a neutral site. Although
the Union suggests that TCG was an "agent" of UGC by storing UGC
grain,
the Union proffers no persuasive argument or evidence to
support that assertion.
That
said,
award damages.
intended
to
I
decline
Significantly,
"coerc[e]
"compensat[e]
to
rescind
the
sanctions
compliance
fine
for
with
suspension
civil contempt
a
court
the prevailing party." Ahearn,
721
order"
or
are
and
F.3d at 1128.
Though I do not find the Union's interpretation of the court's
order
reasonable,
I
recognize
that
the
"Notice"
of
contempt
distributed by the Union -
and not objected to by this Court,
Petitioner,
prohibited the Union from picketing
or Tidewater -
"any Tidewater location."
the
Union's
picketing
within several days,
interest
in
TCG.
was
See,
e.g.,
doc.
short-lived
and
59,
Ex.
ceased
A.
Further,
voluntarily
after it learned of Tidewater's ownership
More
than
five
months
had
passed
incident since the contempt finding on October 31,
2013,
without
and no
further violations of the injunction have been reported. Thus,
8 - OPINION AND ORDER
I
do not find that the fines or an award of damages are necessary
to coerce the Union's continued compliance.
With
action
respect
against
Relations
to
the
compensation,
Union
(LMRA)
Act
under
and
303
§
seeks
of
the
damages
unlawful
Inc.
Int' 1
Longshore
&
(Oct.
2,
In that proceeding,
01758-AA
damages
caused
2013).
by
the
picketing.
Warehouse
Union's
has
Labor
Tidewater
Union,
picketing
the
case
that
administrative
independent
a
Section
enforcement
avenues
for
303
Case
Section
of
a
party
President Lines, Ltd.
Warehouse Union,
F. 3d 1147,
Plumbers
&
Fitters,
F.2d 1054,
is
"not
recognize
conduct,
721
721
1057
that
Local 7 61 v.
(9th Cir.
dependent
1156
1969)
on prior
this
court
v.
(9th Cir.
Matt J.
the
Lines,
3: 13-cv-
a
2014,
thus
"It has
the
long
pursuit
of
coexist
union's
as
unfair
Int'l Longshore &
2013);
Zaich Constr.
see also
Co.,
418
(an "action under section 303"
administrative
may
and
by
labor practices." Am.
from
No.
April
8 (b) ( 4)
wronged
Management
Tidewater may seek
in
lawsuit
pending
Barge
providing Tidewater with a means of compensation.
been
a
resulting
Union's
v.
secondary
Tidewater
award
determinations.") .
damages
for
I
contemptuous
regardless of the remedy available under § 303. Ahearn,
F.3d at
of this case,
1128-29.
However,
given the
specific circumstances
I find it more appropriate to determine damages in
the context of Tidewater's §
a finding of contempt.
9 - OPINION AND ORDER
303 action rather than pursuant to
Nonetheless,
fees
incurred
petition
for
opposition.
I
by
exercise my
Petitioner
further
Even
if
discretion
and
contempt
and
Tidewater
and
individual
in
responding
Union
award
attorney
bringing
to
the
members
the
Union's
could
have
misunderstood the injunction's scope in light of the Notice,
the
Union's attorneys and/or officers should not have operated under
such
a
misapprehension.
Tidewater's
4' s
counsel
Accordingly,
provided the
It did not,
unnecessary
Petitioner's
Union with notice
conduct violated the injunction,
ceased.
once
that
and
Local
the picketing should have
and Petitioner and Tidewater thus incurred
attorney
fees
in
bringing
the
petition
and
of
attorney
fees
responding to the Union's opposition.
In
sum,
I
find
that
the
imposition
combined with the specter of greater damages in Tidewater's LMRA
action provides adequate deterrence against future violations of
the court's order and injunction. I further clarify the scope of
the original injunction, as set forth below.
CONCLUSION
The Petition for Contempt
(doc.
68)
is GRANTED in part and
DENIED in part, as set forth below:
IT IS HEREBY ORDERED that Respondent Local 4,
attorneys
and
participating
members
are
adjudged
contempt of the court's Order dated October 15,
10 - OPINION AND ORDER
its officers,
in
civil
2014 based on
Respondent's
conduct occurring from April
12 through April
17,
2014, and that:
(1)
All Respondents fully comply with all the terms of the
Order,
the
Civil
Contempt
Order,
in that all Respondents
tugboats, barges,
Order,
as
well
as
this
Opinion
and
shall cease picketing Tidewater
and spud barges when located at neutral sites
or locations unaffiliated with UGC or CGI;
(2)
Respondents,
("Notice") ,
notice
distribution,
further
to
of
that
the
Respondents'
twenty-four
approved
the
explaining
directing
be
stating
contempt
conduct,
within
by
Respondent
Order,
terms
this
Local
the
hours,
Court
4
denouncing
of
officers,
(24)
to
found
in
contumacious
court's
agents,
a
prior
was
the
sign
Orders,
employees,
and
attorneys,
affiliated locals, and all members and persons acting in concert
or participation with them to refrain from similar conduct;
( 3)
said
Respondents,
Notice
employees,
work
to
Columbia
each
agents,
performed,
Rivers
within forty-eight
of
their
activities
to
distribute
representatives,
and members involved with
taking
and proximate
hours,
officers,
affiliated locals,
or
( 4 8)
place,
Tidewater
on
the
or
its
Snake
and
facilities,
including those in Pasco, Washington;
(4)
Respondents,
affidavits
of
simultaneously
within
compliance
with
three
with
Petitioner,
11 - OPINION AND ORDER
the
(3)
days,
Court,
stating
shall
with
with
each
copies
file
served
specificity
how
each of Respondents have complied with this Order, including how
and
to
whom
copies
of
the
Notice
and
this
Order
have
been
provided; and
(5)
Respondents
shall
reimburse
Petitioner
and
Tidewater
their reasonable attorney fees incurred in association with the
petition
order,
for
further
and after
Tidewater shall
The
Union may
contempt.
Within twenty-one
conferral with Union counsel,
days
of
Petitioner
this
and
submit affidavits in support of attorney fees.
file
objections
within
fourteen
submission of affidavits.
IT IS SO ORDERED.
DATED this
of June, 2014.
Ann Aiken
United States District Judge
12 - OPINION AND ORDER
days
after
the
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