United States District Court, D. 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, Petitioner,
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 8; INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 40; and INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, Respondents
For Petitioner: Anne P. Pomerantz, John H. Fawley, NATIONAL LABOR RELATIONS BOARD, Region 19, Seattle, WA; Helena A. Fiorianti, NATIONAL LABOR RELATIONS BOARD, Portland, Oregon.
For Respondents: Robert Remar, Eleanor Morton, and Emily M. Maglio, LEONARD CARDER, LLP, San Francisco, CA; Robert Lavitt, SCHWERIN, CAMPBELL, BARNARD, IGLITZIN AND LAVITT, LLP, Seattle, WA.
For Charging Party ICTSI, Oregon, Inc: Michael Garone, SCHWABE WILLIAMSON & WYATT, PC, Portland, OR.
Michael H. Simon, United States District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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" ). 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" ) 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 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.
FINDINGS OF FACT
The Court has considered the decisions of Administrative Law Judge (" ALJ" ) Jeffrey D. Wedekind and ALJ William L. Schmidt, 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 witnesses 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 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.
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).
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" employer with respect to the labor dispute over the reefer work and ICTSI and the shipping carriers are considered " neutrals" in this dispute.
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 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.
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 ...