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International Longshore and Warehouse Union v. ICTSI Oregon, Inc.

United States District Court, D. Oregon

January 17, 2019

INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, Plaintiff,
v.
ICTSI OREGON, INC., Defendant. ICTSI OREGON, INC., Counterclaim-Plaintiff,
v.
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION; INTERNATIONAL LONGSHORE AND WAREHOUSE UNION Local 8; and INTERNATIONAL LONGSHORE AND WAREHOUSE UNION Local 40, Counterclaim-Defendant.

          OPINION AND ORDER

          Michael H. Simon, District Judge.

         Before the Court is a motion for partial summary judgment filed by ICTSI Oregon, Inc. (“ICTSI”) against several affirmative defenses alleged by International Longshore and Warehouse Union (“ILWU”), International Longshore and Warehouse Union Local 8 (“Local 8”), and International Longshore and Warehouse Union Local 40 (“Local 40”) (collectively, the “ILWU Entities”). ICTSI also seeks partial summary judgment based on issue preclusion, arising out of the earlier opinions of this Court and the decisions of the National Labor Relations Board (“NLRB”), affirmed by the United States Court of Appeals for the D.C. Circuit. For the reasons discussed below, ICTSI's motion is granted in part and denied in part.

         LEGAL STANDARDS

         A. Summary Judgment

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         B. Issue Preclusion

         Issue preclusion, also known as collateral estoppel, “is designed to ‘bar [ ] successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination.'” Paulo v. Holder, 669 F.3d 911, 918 (9th Cir. 2011) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)); see also Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (“The doctrine of issue preclusion prevents relitigation of all issues of fact or law that were actually litigated and necessarily decided in a prior proceeding. . . . The issue must have been actually decided after a full and fair opportunity for litigation.” (quotation marks and citations omitted)). Thus, the party asserting issue preclusion must demonstrate: (1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessarily decided, also described as necessary or essential to the judgment.[1] Howard v. City of Coos Bay, 871 F.3d 1032, 1041 (9th Cir. 2017).

         “[I]ssue preclusion, ‘is not limited to those situations in which the same issue is before two courts. Rather, where a single issue is before a court and an administrative agency, preclusion also often applies.'” Pauma v. Nat'l Labor Relations Bd., 888 F.3d 1066, 1072 (9th Cir. 2018) (quoting B & B Hardware v. Hargis Indus., __U.S.__, 135 S.Ct. 1293, 1303 (2015)). The Ninth Circuit “has held that preclusion ‘doctrines apply to administrative determinations . . . of the [National Labor Relations] Board.'” Id. (alterations in original) (quoting Bldg. Materials & Constr. Teamsters v. Granite Rock Co., 851 F.2d 1190, 1195 (9th Cir. 1988)). “Generally speaking, so long as an administrative agency is acting in a judicial capacity and resolv[ing] disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the federal common law rules of preclusion . . . extend to . . . administrative adjudications of legal as well as factual issues, even if unreviewed.” Id. (alterations in original) (quotation marks and citations omitted); see also Airline Prof'ls Ass'n of the IBT, Local No. 1224 v. Allegiant Air, LLC, 788 F.3d 1080, 1089 (9th Cir. 2015) (holding that administrative agency findings are entitled to preclusive effect “when made in proceedings that satisfy due process and when the findings were supported by substantial evidence”).

         BACKGROUND

         This lawsuit is the last remaining active case out of six separate actions that were filed in 2012 arising from a labor dispute at Terminal 6 (“T6”) at the Port of Portland (“Port”).[2]Briefly stated, the dispute concerns who is entitled to perform two jobs of plugging, unplugging, and monitoring refrigerated shipping containers (the “reefer” jobs) at ¶ 6. This case was originally filed by the ILWU and Pacific Maritime Association (“PMA”). They alleged that their collective bargaining agreement-the Pacific Coast Longshore and Clerks Agreement[3](“PCL&CA”)-required ICTSI, the then-operator of T6 and a PMA member, to assign the reefer jobs to ILWU members. ICTSI, the Port of Portland (the “Port”), and the International Brotherhood of Electrical Workers (“IBEW”) Local 48 contended that other contracts- including the T6 Lease Agreement between the Port and ICTSI and the District Council of Trade Unions Agreement (“DCTU Agreement”) between the Port and IBEW-required that the reefer jobs be assigned to IBEW members.

         Beginning in March 2012, ILWU began filing grievances under the PCL&CA grievance and arbitration procedures, alleging that ICTSI was refusing to assign the reefer jobs to ILWU members in violation of the PCL&CA. In May and June 2012, ILWU and PMA arbitrated ILWU's grievances. An arbitrator issued two decisions directing ICTSI to assign the reefer work to ILWU members. In response to ILWU's attempts to obtain the reefer work for ILWU-represented employees, ICTSI and the Port filed several charges with the NLRB.

         When IBEW learned of ILWU's grievances, IBEW threatened to picket if ICTSI reassigned the reefer work from IBEW-represented employees to ILWU-represented employees. On May 10, 2012, ICTSI filed an unfair labor practice charge with the NLRB against IBEW, alleging that IBEW violated the National Labor Relations Act (“NLRA”) by engaging in proscribed activity with an object of forcing ICTSI to assign the reefer work to IBEW-represented employees rather than to ILWU-represented employees. Int'l Bhd. of Elec. Workers, 358 NLRB No. 102, 2012 WL 3306478 (Aug. 13, 2012). The NLRB considered ICTSI's charge to trigger § 10(k) of the NLRA, 29 U.S.C. § 160(k), which empowers the NLRB to resolve jurisdictional disputes between unions.

         The NLRB held a § 10(k) hearing in which ICTSI, IBEW, and ILWU presented evidence. Int'l Bhd. of Elec. Workers, 2012 WL 3306478, at *1. Those parties, as well as the Port as amicus, also presented post-hearing briefing to the NLRB. Id. While that proceeding was pending before the NLRB, the ILWU and PMA brought this action on June 13, 2012, under § 301 of the LMRA, 29 U.S.C. § 185, to enforce the two arbitration awards issued by arbitrators pursuant to the PCL&CA assigning the reefer jobs to ILWU members. After the ILWU and PMA filed their complaint, the Port and the IBEW intervened as defendants. The Port and ICTSI filed counterclaims against the ILWU Entities. The Port also filed crossclaims against ICTSI.

         The NLRB also filed an action in this Court, on June 18, 2012, requesting a temporary restraining order and preliminary injunctive relief to enjoin the ILWU Entities from engaging in alleged improper secondary boycott activity under the NLRA. Hooks v. Int'l Longshore & Warehouse Union, No. 3:12-cv-1088-SI. The NLRB alleged that the ILWU Entities had engaged and were continuing to engage in work slowdowns, stoppages, withholding of services, threats, coercion and restraint of persons engaged in commerce or in an industry affecting commerce, in violation of 29 U.S.C. § 8(b)(4)(i) and (ii)(B). The Court held a hearing on June 22 and 29 and July 3, 2012, and issued a temporary restraining order on July 3, 2012. The Court held another hearing on July 19, 2012, which included witness testimony, and issued its preliminary injunction that same day. The Court held that the ILWU Entities “have engaged in, and are engaging in, acts and conduct in violation of 29 U.S.C. §§ 158 (b)(4)(i) and (ii)(B) and affecting commerce within the meaning of 29 U.S.C. §§ 152(6) and (7), and that such acts and conduct will likely be repeated or continued unless enjoined.” Hooks, No. 3:12-cv-1088-SI, ECF 50 at 2. Neither the temporary restraining order or the preliminary injunction were based on the § 10(k) charges or proceeding.

         On August 13, 2012, the NLRB issued its § 10(k) decision and awarded the reefer work to IBEW-represented employees. Int'l Bhd. of Elec. Workers, 2012 WL 3306478, at *7. The NLRB relied on three factors to reach its conclusion: the terms of the collective-bargaining agreements, the employer's preference, and past practices. Id. at *7. With respect to the collective bargaining agreements, the NLRB determined that the Port, which is not a party to the PCL&CA, controlled the assignment of the reefer work. Thus, the NLRB found that it was irrelevant that the PCL&CA purportedly requires ICTSI to assign reefer work to ILWU-represented employees because under the DCTU Agreement and the T6 Lease Agreement, the Port, not ICTSI, controls that assignment.[4]

         In late August 2012, ICTSI filed two new unfair labor practice charges with the NLRB against the ILWU entities. The NLRB Regional Director consolidated the charges and issued an administrative complaint alleging that ILWU and its Locals, Local 8 and Local 40, violated § 8(b)(4)(B) and (D) of the NLRA, 29 U.S.C. § 158(b)(4)(i), (ii)(B) and (D), by continuing to maintain this lawsuit and by filing lost work opportunity grievances under the PCLCD against both ICTSI and certain shipping companies that call on T6 (the “Carriers”).

         The Regional Director also petitioned this Court for a preliminary injunction pursuant to § 10(1) of the NLRA, 29 U.S.C. § 160(1), to enjoin ILWU and its Locals from continuing to engage in the conduct alleged in the NLRB administrative proceeding. On November 21, 2012, this Court issued the requested preliminary injunction. Hooks v. Int'l Longshore & Warehouse Union, 2012 WL 5877536 (D. Or. Nov. 21, 2012). In issuing this injunction, the Court found that the Regional Director was likely to prevail on his claims that ILWU and its Locals had and were continuing to violate 29 U.S.C. § 158(b)(4)(i), (ii)(B) and (D).

         ILWU conceded one allegation in the Regional Director's administrative complaint. ILWU agreed that it violated § 8(b)(4)(D) by continuing to maintain its claim in this action despite the § 10(k) decision awarding the reefer work to IBEW-represented employees. ILWU explained that it maintained the lawsuit in order to obtain a final order so that it could appeal the § 10(k) determination: “Since issuance of the NLRB's § 10(k) ruling, Respondent ILWU has not withdrawn its pending lawsuit against ICTSI in [the present case] . . . . This is because the statutory scheme of § 10(k) and 8(b)(4)(D) require such refusal in order to perfect an appeal challenging the merits of the NLRB's § 10(k) award, which appeal ILWU is seeking.” Hooks, 2012 WL 5877536, at *5 n.5 (quoting ILWU's briefing). Because ICTSI is not relying in the pending motion on any violations of § 8(b)(4)(D) or the NLRB's § 10(k) award, the NLRB's decisions and the ILWU's concessions relating to these purported violations are noted for background purposes only.

         Between July 31, 2012 and August 29, 2012, ALJ William L. Schmidt conducted a 12-day hearing on the consolidated cases brought before the NLRB relating to the ILWU Entities' alleged conduct from May 21, 2012 through August 2012. On August 28, 2013, ALJ Schmidt issued a Decision and Recommended Order, finding that from May 21, 2012 through June 10, 2012, [5] the ILWU Entities violated 29 U.S.C. § 158(b)(4)(i), (ii)(B).[6] ECF 310-1; also available at Int'l Longshore and Warehouse Union, AFL-CIO, et al., 2013 WL 4587186 (Aug. 28, 2013).

         ALJ Schmidt found that the ILWU Entities did not have a valid work-preservation claim because IBEW workers had historically performed the reefer jobs. ALJ Schmidt also found that the Port was the entity in control of assigning the reefer jobs. ALJ Schmidt further found that the ILWU Entities engaged in a series of job actions against ICTSI and the Carriers with an unlawful “cease doing business” object-namely seeking the Port's relinquishment of control over the dockside reefer work at ¶ 6 for the benefit of the workers represented by Local 8. In making his findings, ALJ Schmidt held:

To satisfy the cease doing business object required under Section 8(b)(4)(B), it need only to be shown that the union's secondary activities sought to alter the way in which the primary employer traditionally operates. NLRB v. Operating Engineers Local 825, 400 U.S. 297, 304-305 (1971). Accordingly, it is enough to establish violation here if the Respondents engaged in secondary activities in order to cause the Port to abandon its historical practice of using its own electricians to perform the dockside reefer work.
Respondents conduct here had an unlawful cease doing business object within the meaning of Section 8(b)(4)(B). Their activities between May 21 and June 10 pressured ICTSI and the carriers-all neutral employers-to seek the relinquishment of the Port's control over the dockside reefer work for the benefit of the ILWU-represented workers at ¶ 6. . . . By engaging in conduct disruptive of the operations of ICTSI and the carriers at ¶ 6 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.

ECF 310-1 at 44.

         ALJ Schmidt's decision was affirmed by a three-member panel of the NLRB, except for his references to the NLRB's § 10(k) decision and his finding that the ILWU Entities also violated § 8(b)(4)(ii)(D). ECF 310-1, at 3; also available at Int'l Longshore & Warehouse Union, AFL-CIO, et. al, 363 NLRB No. 12, 2015 WL 5638153 (Sept. 24, 2015). The NLRB's decision was affirmed by the D.C. Circuit. ILWU Local 8 v. NLRB, 705 Fed.Appx. 1 (D.C. Cir. 2017).

         In November and December 2013, ALJ Jeffrey D. Wedekind held a 12-day hearing and allowed post-hearing briefs on a case before the NLRB alleging that the ILWU Entities engaged in continued unlawful secondary boycott activity from September 2012 through June 2013. On May 30, 2014, ALJ Wedekind issued a decision, finding that the ILWU and Local 8 violated §8(b)(4)(i)(B) of the NLRA by engaging in unlawful secondary boycott activity, including inciting or encouraging unlawful slowdowns. ECF 310-1 at 54-69; also available at Int'l Longshore and Warehouse Union, AFL-CIO, et al., 2014 WL 2453202 (May 30, 2014). ALJ Wedekind dismissed the claims against Local 40. ALJ's Wedekind's decision was affirmed by an NLRB panel. ECF 310-1, at 51-53; also available at Int'l Longshore and Warehouse Union, AFL-CIO, et al., 363 NLRB No. 47, 2015 WL 7750748 (Nov. 30, 2015). The NLRB's decision was affirmed by the D.C. Circuit. ILWU Local 8 v. NLRB, 705 Fed.Appx. 3 (D.C. Cir. 2017).

         On September 15, 2014, the NLRB filed a petition for an order of civil contempt with the Court in the related case of Hooks v. Int'l Longshore & Warehouse Union, No. 3:12-cv- 1088-SI. The NLRB alleged that ILWU and Local 8 had consistently engaged in unlawful secondary boycott activities, including work stoppages and slowdowns, after the Court issued its preliminary injunction in July 2012. The NLRB alleged that ILWU and Local 8 engaged in the alleged conduct with an unlawful purpose of causing neutral employers, including ICTSI, to pressure the Port to assign its reefer work to Local 8's members. On October 21, 2014, the Court held a hearing on the petition. No. party presented any witnesses. The Court permitted supplemental briefing, which was filed by both parties on October 31, 2014 and November 7, 2014. On December 16, 2014, the Court issued is Findings of Fact and Conclusions of Law regarding the NLRB's petition for civil contempt (“Contempt Order”). The Court found 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.” Hooks v. Int'l Longshore & Warehouse Union, 72 F.Supp.3d 1168, 1171 (D. Or. 2014). The Court held that the NLRB did not provide clear and convincing evidence of unlawful secondary boycott activity after August 13, 2013, primarily because the NLRB did not provide economic expert evidence, a regression analysis, or similar evidence to what was provided relating to the earlier time period. Id. at 1187-88.

         While the appeals were ongoing relating to the NLRB's decisions, and the related cases in this Court were largely stayed, the Court in this case dismissed some of the counterclaims and stayed one of the counterclaims pending resolution of the appeals of the NLRB decisions. As noted above, the D.C. Circuit ultimately upheld the decisions of the NLRB. Because NLRB decisions take precedence over inconsistent arbitration decisions, those cases mooted the ILWU and PMA's claim to enforce the arbitration award in this case and the Port and ICTSI's counterclaims requesting that the Court void the arbitration award. At the parties' request, the Court dismissed ILWU and PMA's claims and the Port and ICTSI's counterclaims relating to the arbitration award. ECF 280. The Court then dismissed the Port and the PMA from this case. ECF 229, 231, 285. IBEW also withdrew. ECF 241.

         After the various legal rulings and voluntary dismissals in this case and the legal rulings in other related cases, the only remaining parties in this case are the ILWU Entities and ICTSI. All that remains at issue are: (1) ICTSI's Second Counterclaim for money damages under § 303 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 187, based on the ILWU Entities' illegal secondary boycott activities; and (2) ILWU's First through Seventh Affirmative Defenses.

         DISCUSSION

         ICTSI has filed eight motions for partial summary judgment. These motions assert: (1) the ILWU Entities are liable under 29 U.S.C. § 187 as a matter of law for the time period from May 21, 2012 through August 13, 2013, because this issue has already been adjudicated by the NLRB and this Court; (2) any labor activities the ILWU Entities applied to ICTSI at any time that had an object of obtaining the reefer work violated the secondary boycott provisions of 29 U.S.C. § 158(b)(4)(i), (ii)(B), because the underlying predicates to reach such a conclusion have already been adjudicated by the NLRB and this Court; (3) numerous particular facts and conclusions from the NLRB and this Court's earlier adjudications are preclusive and beyond dispute by the ILWU Entities; (4) the ILWU Entities' Fourth and Fifth Affirmative Defenses have already been determined by the Court to fail as a matter of law; (5) the ILWU Entities' Sixth Affirmative Defense fails as a matter of law because it is not an affirmative defense but instead attack ICTSI's ability to present its prima facie case; (6) the ILWU Entities' Third Affirmative Defense fails under the collateral source rule; (7) the ILWU Entities' First Affirmative Defense fails as a matter of law because it is not an affirmative defense but instead attack ICTSI's ability to present its prima facie case; and (8) ICTSI is entitled to some damages as a matter of law. Each motion is discussed in turn.

         A. Preclusion-Liability for the Time Period May 21, 2012 through August 13, 2013

         ICTSI asserts that the issue of liability for the ILWU Entities' unlawful secondary boycott activities from May 21, 2012 through August 13, 2013, in violation of 29 U.S.C. § 158(b)(4)(i), (ii)(B) has already been adjudicated by the NLRB and this Court.[7] ICTSI moves for partial summary judgment that the ILWU Entities are liable as a matter of law for violating LMRA § 303, 29 U.S.C. § 187, for this time period under the doctrine of issue preclusion. The Court addresses ICTSI's motion in stages.

         1. Preclusion-Violation of § 303(a), 29 U.S.C. § 187(a)

         The first stage is the preclusive effect of the NLRB decisions and the Court's Contempt Order[8] finding that the ILWU Entities violated § 8(b)(4). The Court agrees that the elements for issue preclusion are met with respect to this determination. The first and second elements are met because the material issue of whether the ILWU Entities violated § 303(a) (which is defined as a violation of § 8(b)(4)) is identical in both this case and all three earlier proceedings, and actually was litigated in the earlier proceedings. The third element is met because the ILWU Entities had a full and fair opportunity to litigate the issue, including multi-day hearings before the NLRB along with two-levels of appeals, and hearings before this Court with the opportunity to present witnesses and provide supplementary briefing. The final element of issue preclusion is met because the issue of whether the ILWU Entities violated § 8(b)(4) was necessarily decided. Indeed, it was the focus of the earlier cases. And the requirement for an administrative agency decision to have preclusive effect-that the proceedings comport with due process and the findings be supported by substantial evidence-are satisfied here with the extensive proceedings before and detailed findings by the NLRB.

         The ILWU Entities argue that issue preclusion is not appropriate because a different standard of proof applies in this case than applied before the NLRB or this Court in the contempt proceeding. The ILWU Entities contend that the NLRB and the Court in considering contempt only considered whether secondary boycott activities were “an object” of the conduct, but to prove damages under § 303 ICTSI must prove that secondary boycott activities “materially contributed” or were a “substantial factor” in bringing about ICTSI's loss. Mead v. Retail Clerks Int'l Ass'n, Local Union No. 839, AFL-CIO, 523 F.2d 1371, 1379 (9th Cir. 1975). The ILWU Entities are conflating proving the violation of § 303(a), 29 U.S.C. § 187(a) (liability) with proving the violation of § 303(b), § 187(b) (causation and damages).

         The statutory text of the two subsections of § 187 helps elucidate this issue. The first provision states: “It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title.” 29 U.S.C. § 187(a). Thus, conduct that violates § 158 (b)(4), violates § 303(a).

         The second provision states: “Whoever shall be injured in his business or property by reason [of][9] any violation of subsection (a) may sue therefor in any district court of the United States . . . .” 29 U.S.C. § 187(b). This subsection thus requires the violation of § 303(a) to have a causal connection to the injury of the aggrieved party. It is this latter requirement that Mead addresses.

         Courts have routinely held that the NLRB's finding of a § 158(b)(4) violation is preclusive of liability under § 303, when the proceedings provide due process and the findings are based on substantial evidence. See, e.g., Wickham Contracting Co. v. Bd. of Educ., 715 F.2d 21, 26 (2d Cir. 1983) (“The legal and factual issues in the administrative and judicial proceedings are, but for damages, absolutely identical since section 303 authorizes damage actions for violations of section 8(b)(4)[.]”); Consol. Express, Inc. v. N.Y. Shipping Ass'n, 602 F.2d 494, 503 (3d Cir. 1979), vacated on other grounds, 448 U.S. 902 (1980) (noting that “courts in several circuits have held that prior NLRB unfair labor practice determinations were controlling on the issue of liability, as to both facts and law, in a subsequent § 303(b) damage action, ” which holdings are “undoubtedly sound”); Consol. Exp., Inc. v. N.Y. Shipping Ass'n, 641 F.2d 90, 92 (3d Cir. 1981) (discussing the history of the case and noting that the district court originally had held that the NLRB's finding of a § 8(b)(4) violation “collaterally estopped [the union] from litigating its liability for damages on the section 303 count” and that the Third Circuit had affirmed that finding, before the case was remanded on other grounds by the U.S.

         Supreme Court. Upon remand, the Third Circuit stayed the case pending a final decision by the NLRB, which had re-opened the case, and the court acknowledged that with the stay the union would be “deprived of trial by jury on some issues by virtue of collateral estoppel” but stated that the union could not complain because the “judicial process will benefit significantly from the result of avoiding retrial of issues already decided”); Sillman v. Teamsters Union Local 386, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 535 F.2d 1172, 1173, 1173 n.1 (9th Cir. 1976) (involving judgment only on damages because “[t]he liability issue had been previously decided by the [NLRB]. . . . The District Court found this decision was res judicata on the issue of liability”); Paramount Transp. Sys. v. Teamsters Local 150, 436 F.2d 1064, 1065-66 (9th Cir. 1971) (affirming grant of summary judgment on liability based on issue preclusion from NLRB § 8(b)(4) decision, noting that the union was bound by “those material issues of fact decided adversely to it in the proceedings culminating in a final order by the [NLRB]”); Painters Dist. Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081, 1083 (5th Cir. 1969) (affirming district court's decision that a final decision of the NLRB “was res judicata as to liability and that the issue to be tried was that of damages” in a subsequent § 303 case).

         The ILWU Entities rely on Mead to argue that issue preclusion should not apply with respect to liability because Mead created a more stringent standard of proof. Mead involved a unique set of circumstances, where the underlying court expressly found that the union sought multiple lawful objectives and one unlawful objective with its labor activities, but that the damages were not separable. Mead, 523 F.2d at 1373-74. In circumstances where a union only engages in unlawful secondary conduct or the damages are separable, Mead does not apply and an NLRB decision will likely be determinative of everything but the amount of damages.

         Even in Mead, however, the Ninth Circuit applied issue preclusion with respect to ...


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