Int'l Longshore & Warehouse Union v. ICTSI Or., Inc., Case No. 3:12–cv–01058–SI.

• Citation: 15 F.Supp.3d 1075
• Decision Date: 24 March 2014
• Docket Number: Case No. 3:12–cv–01058–SI.
• Parties: INTERNATIONAL LONGSHORE AND WAREHOUSE UNION and Pacific Maritime Association, Plaintiffs, v. ICTSI OREGON, INC., Defendant, and Port of Portland and IBEW Local 48, Intervenor–Defendants. ICTSI Oregon, Inc., Counterclaim–Plaintiff, v. International Longshore and Warehouse Union ; Pacific Maritime Association; International Longshore and Warehouse Union Local 8; and International Longshore and Warehouse Union Local 40, Counterclaim–Defendants. Port of Portland, Counterclaim–Plaintiff and Crossclaim–Plaintiff, v. Pacific Maritime Association; International Longshore and Warehouse Union ; and International Longshore and Warehouse Union Local 8, Counterclaim–Defendants, and ICTSI Oregon, Inc., Crossclaim–Defendant.
• Court: U.S. District Court — District of Oregon

15 F.Supp.3d 1075

INTERNATIONAL LONGSHORE AND WAREHOUSE UNION and Pacific Maritime Association, Plaintiffs
v.
ICTSI OREGON, INC., Defendant
and
Port of Portland and IBEW Local 48, Intervenor–Defendants.

ICTSI Oregon, Inc., Counterclaim–Plaintiff
v.
International Longshore and Warehouse Union ;

Pacific Maritime Association;

International Longshore and Warehouse Union Local 8;

and International Longshore and Warehouse Union Local 40, Counterclaim–Defendants.

Port of Portland, Counterclaim–Plaintiff and Crossclaim–Plaintiff
v.
Pacific Maritime Association;

International Longshore and Warehouse Union ;

and International Longshore and Warehouse Union Local 8, Counterclaim–Defendants
and
ICTSI Oregon, Inc., Crossclaim–Defendant.

Case No. 3:12–cv–01058–SI.

United States District Court, D. Oregon.

Signed March 24, 2014.

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Jeffrey P. Chicoine, Miller Nash LLP, Portland, OR, Clifford D. Sethness and Jason M. Steele, Morgan, Lewis & Bockius LLP, Los Angeles, CA, for Pacific Maritime Association.

Robert S. Remar, Eleanor I. Morton, Emily Maglio, Amy Endo, and Philip C. Monrad, Leonard Carder, LLP, San Francisco, CA, Robert H. Lavitt, Schwerin, Campbell, Barnard, Iglitzin & Lavitt LLP, Seattle, WA, for International Longshore and Warehouse Union and International Longshore and Warehouse Union Locals 8 and 40.

Michael T. Garone, Thomas M. Triplett, Román D. Hernández, and Amanda T. Gamblin, Schwabe, Williamson & Wyatt, PC, Portland, OR, for ICTSI Oregon, Inc.

Randolph C. Foster, Jeremy D. Sacks, Nathan C. Brunette, and Kathy Ann Peck, Stoel Rives LLP, Portland, OR; Kathy Ann Peck, Williams, Zografos & Peck PC, Oswego, OR, for the Port of Portland.

Norman D. Malbin, Portland, OR, for IBEW Local 48.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

This matter is one of six separate but related lawsuits arising from a labor dispute at Terminal 6 at the Port of Portland.¹ The dispute arose over who is entitled to perform the work of plugging in,

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unplugging, and monitoring refrigerated shipping containers (the “reefer work”) at Terminal 6. Plaintiffs International Longshore and Warehouse Union (“ILWU”) and the Pacific Maritime Association (“PMA”) contend that Defendant ICTSI Oregon, Inc. (“ICTSI”), the operator of Terminal 6 and a member of PMA, must assign the reefer work to ILWU members. ICTSI, and Intervenor–Defendants the Port of Portland (the “Port”) and the International Brotherhood of Electrical Workers (“IBEW”) Local 48, contend that the reefer work must be assigned to IBEW members.

As part of this lawsuit, Defendant ICTSI asserts several counterclaims, including a counterclaim against both PMA and ILWU under the federal antitrust laws and a counterclaim against PMA for breach of fiduciary duty (ECF 109). PMA has moved to dismiss ICTSI's antitrust counterclaim (ECF 131), and ILWU has joined that motion (ECF 133). PMA has also moved to dismiss ICTSI's counterclaim against PMA for breach of fiduciary duty (ECF 131). In addition, Defendant–Intervenor, the Port, asserts several counterclaims, including a counterclaim against both PMA and ILWU for tortious interference (ECF 136). Both PMA and ILWU have moved to dismiss the Port's tortious interference counterclaim (ECF 138 and 146, respectively). For the reasons that follow, PMA and ILWU's motions are granted in part and denied in part.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett–Packard Co., 668 F.3d 1136, 1140 (9th Cir.2012) ; Daniels–Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n. 2 (9th Cir.2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Baca, 652 F.3d at 1216. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

BACKGROUND

The labor dispute giving rise to this case and its related cases both before this Court and the National Labor Relations Board (“NLRB”) is factually intensive and “highly complex and very technical.” Int'l

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Longshore & Warehouse Union, AFL–CIO, 2013 WL 4587186 (NLRB Aug. 28, 2013). For purposes of the pending motions, the Court briefly summarizes the facts admitted to or alleged by ICTSI or the Port that are relevant to the specific counterclaims PMA and ILWU have moved to dismiss.

ILWU is a labor union that “represents longshore workers, longshore mechanics, gearmen, and marine clerks, employed by waterfront companies who are members of PMA, at all West Coast ports including Portland, Oregon.” Compl. (ECF 1) ¶ 3; ICTSI Am. Answer and Counterclaims (ECF 109) (“ICTSI CC”) ¶ 61. PMA is “a multiemployer collective bargaining association whose members include stevedoring companies, terminal operators, and maintenance and repair contractors that employ dockworkers, such as longshoremen” throughout the West Coast. Compl. ¶ 4; ICTSI CC ¶ 61. PMA has approximately 70 members companies, each of whom delegate bargaining authority to PMA. ILWU and PMA are parties to the Pacific Coast Longshore Contract Document (“PCLCD”), a collective bargaining agreement covering commercial ports along the West Coast, which governs the terms and conditions of employment of all longshore workers. The PCLCD is administered by the joint Coast Labor Relations Committee (“CLRC”), which is composed of representatives of ILWU and PMA.

PMA pays more than 50 percent of the cost to operate a joint dispatch facility with ILWU. The dispatch facility determines which longshoreman to dispatch, pays the salary and benefits of those who are dispatched, and is paid by member and non-member employers based on hours worked by longshoremen.

For decades, PMA and ILWU negotiated successive bargaining agreements. In 2008, the PCLCD included for the first time a provision that maintenance and repair work, including the reefer work at issue in this case, be performed by ILWU-represented employees. Before this time, the reefer work had been performed at some ports, including Terminal 6, by employees who were not ILWU members. When the 2008 PCLCD was negotiated, PMA members that had direct contracts with other unions for the reefer work were exempted from the new requirement that such work be assigned to ILWU members.

The Port operated Terminal 6 until February 2011, when ICTSI commenced operating Terminal 6 pursuant to a long-term lease agreement between the Port and ICTSI (“Terminal 6 Lease”). IBEW-represented employees of the Port had performed the reefer work on Terminal 6 for decades. Because the Port was not a PMA member, it was not bound by the PCLCD and did not receive the benefit of the bargained exemption in the 2008 PCLCD for current PMA members exempting them from assigning reefer work to ILWU members. Even after ICTSI took over operations at Terminal 6, the Port continued, under the terms of the Terminal 6 Lease, to manage the reefer work and assign that work to IBEW-represented Port employees. ICTSI joined PMA in June 2011, several months after it had entered into the Terminal 6 Lease.

In 2011 and 2012, ILWU filed numerous grievances against ICTSI and other PMA members complaining about the non-ILWU workers performing the reefer work. IBEW threatened to picket if the reefer work were assigned to ILWU-represented employees. ICTSI then filed a complaint before the NLRB against IBEW, in which ILWU intervened. The night before the NLRB hearing on May 24, 2012, the CLRC held a meeting to which ICTSI and the Port were not invited and agreed that the reefer work at Terminal

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6 should be performed by...