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Pomerantz v. International Longshore and Warehouse Union

United States District Court, D. Oregon

June 24, 2014

ANNE P. POMERANTZ, 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.

OPINION AND ORDER

ANN AIKEN, District Judge.

Before the court is Petitioner's Petition for Further Civil Contempt (doc. 68). Petitioner seeks an order finding Respondents International Longshore and Warehouse Union and its Locals 4 and 8 (the Union), as well as their officers, agents, employees, attorneys, affiliated locals, and all members and persons acting in concert or participation with them, in civil contempt of the court's order and injunction issued on October 15, 2013. This petition arises from the Union's conduct beginning on April 12, 2014 and continuing for several days afterward.

BACKGROUND

On October 15, 2013, the court enjoined the Union from picketing Tidewater Barge Lines, Inc. (Tidewater) pending the resolution of a proceeding before the National Labor Relations Board (NLRB). The Union's picketing arose from a labor dispute between the Union and two grain companies: Marubeni-Columbia Grain, Inc. (CGI) and Mitsui-United Grain Corporation (UGC). Tidewater alleged that the Union was engaging in unlawful secondary picketing of Tidewater barges and spud barges on the Snake River when Tidewater tugboats attempted to transport grain barges to CGI's downriver grain facilities. I agreed that the Union's picketing likely constituted unlawful secondary picketing under the National Labor Relations Act (NLRA) and enjoined the Union's picketing of Tidewater until the NRLB issued a final decision. See Opinion and Order (doc. 30) (Oct. 15, 2013); 29 U.S.C. 158 (b) (4).

However, the Union did not cease its conduct and continued picketing Tidewater barges and spud barges. Accordingly, on October 31, 2013, I 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 4) began water-borne picketing at a Tri-Cities Grain (TCG) 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, the barge - Barge 83 - was loaded with grain bound for UGC. Ex. A. Three individuals on the picket boat waved picket signs that said "ILWU" and "UGC Unfair." See Exs. B, C. Captain Bob's crew eventually abandoned its attempt to reach the barge. See Ex. B.

On Sunday, April 13, 2014, the Tidewater tug boat "Chief" attempted to retrieve Barge 83. As the Chief approached the barge, Local 4's picket boat again resumed picketing. See Exs. B, D. Three individuals waived the "ILWU" and "UGC Unfair" picket signs until the tug boat crew abandoned its attempt to reach the barge.

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, 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, carrying signs that read "ILWU" and "UGC Unfair." See Ex. E. Tidewater's Pasco fuel terminal is adjacent to TCG and 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 at TCG's dock due to Local 4's picketing, preventing Tidewater from moving another empty barge into position at TCG's dock. See Ex. A. Consequently, TCG was unable to unload any grain from Saturday, April 12 through April 17, and Tidewater was unable to transport seven additional grain barges downriver to other customers. Tidewater allegedly experienced a net loss of approximately $10, 500 for each barge that was not shipped downriver.

On April 18, 2014, Petitioner moved for an order finding the Union in contempt, lifting the fine suspension, and awarding fees and damages to Tidewater for the Union's contemptuous conduct in October 2013 and April 2014. Subsequent to its petition, Petitioner informed the court that an ALJ in the underlying NLRB proceeding had ruled against the Union and found it had engaged in unlawful secondary picketing of Tidewater in violation of ยง 8 (b) (4) of the NLRA. See Status Update (doc. 73). A final decision is pending before the NLRB.

DISCUSSION

A party moving for civil contempt must demonstrate a violation of a specific and definite court order by clear and convincing evidence. Ahearn v. Int'l Longshore & Warehouse Union , 721 F.3d 1122, 1129 (9th Cir. 2013); Reno Air Racing Ass'n, Inc. v. McCord , 452 F.3d 1126, 1130 (9th Cir. 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 , 452 F.3d at 1130 (citations omitted). "Although the district court generally must impose the minimum sanction necessary to secure compliance, the district court retains discretion to establish appropriate sanctions." Lam v. City & Cnty. of San Francisco , 868 F.Supp.2d 928, 939 (N.D. Cal. 2012) (citations omitted).

Petitioner contends that the Union violated the court's order by picketing Tidewater at the TCG facility, a neutral site not affiliated with UGC. Petitioner emphasizes that the injunction prohibited the Union's picketing of Tidewater if the purpose of such picketing was to coerce or restrain Tidewater from doing business with or providing services for CGI or another company. In response, the Union argues that Petitioner's interpretation of the court's injunction expands its purpose and scope and would prohibit lawful, primary picketing at UGC facilities. The Union's argument is not well taken. The whole point of the Petitioner's initial petition and this court's injunction was to enjoin the Union's picketing of Tidewater at neutral, secondary locations, and the injunction was entered in that ...


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