Pomerantz v. International Longshore and Warehouse Union, Local 4, et al, No. 3:2013cv01676 - Document 78 (D. Or. 2014)
Court Description: 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)
Download PDF
<![CDATA[
Pomerantz v. International Longshore and Warehouse Union, Local 4, et al Doc. 78 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, Case No. 3:13-cv-1676-AA OPINION AND ORDER 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 Dockets.Justia.com 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 party A 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 enforcement avenues for labor practices." Am. Warehouse Union, Plumbers & is "not recognize conduct, 721 1057 Case party wronged 1156 1969) on prior court by the Lines, 3: 13-cv- v. 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 (9th Cir. Matt J. from No. April 8 (b) ( 4) President Lines, Ltd. Local 7 61 v. this lawsuit Management Tidewater may seek in Section of a (9th Cir. dependent that 303 721 F. 3d 1147, Fitters, F.2d 1054, Section 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
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
