Int'l Longshore & Warehouse Union v. ICTSI Or., Inc.

• Citation: 932 F.Supp.2d 1181
• Decision Date: 15 March 2013
• 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: United States District Courts. 9th Circuit. United States District Court (Oregon)

932 F.Supp.2d 1181

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.

March 15, 2013.

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

Robert Remar, Eleanor Morton, and Emily Maglio, Leonard Carder, LLP, San Francisco, CA, Robert Lavitt, Schwerin, Campbell, Barnard, Iglitzin and Lavitt, LLP, Seattle, WA, for International Longshore and Warehouse Union and International Longshore and Warehouse Union Local 8.

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, and Nathan C. Brunette, Stoel Rives LLP, Portland, OR, Kathy A. Peck, Williams Zografos & Peck PC, Lake Oswego, OR, for the Port of Portland.

OPINION AND ORDER
SIMON, District Judge.
INTRODUCTION

This matter is one of six separate but related actions arising from a labor dispute at Terminal 6 at the Port of Portland.¹ Briefly stated, the dispute concerns who is

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entitled to perform the work of plugging in, 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 their collective bargaining agreement—the Pacific Coast Longshore Contract Document (“PCLCD”)—requires Defendant ICTSI Oregon, Inc. (“ICTSI”), the operator of Terminal 6 and a PMA member, to assign the reefer work to ILWU members. ² ICTSI, and Intervenor–Defendants 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”) Agreement between the Port and IBEW—require that the reefer work be assigned to IBEW members.

In this action, ILWU and PMA have filed a single claim for relief under § 301 of the Labor–Management Relations Act (“LMRA”), 29 U.S.C. § 185, requesting the Court confirm certain arbitration awards. On December 21, 2012, the Court stayed this claim pending final adjudication of related proceedings before the National Labor Relations Board (“NLRB”). Dkt. 110. ICTSI and the Port have filed several counterclaims. Dkts. 32, 60. Presently before the Court are ILWU and PMA's motions to dismiss several of those counterclaims. Dkts. 65, 68, 75, 93. In addition, the Court required the parties to provide supplemental briefing addressing whether the Court should stay any or all of the counterclaims by ICTSI or the Port pending the related NLRB proceedings. Dkt. 110. ILWU and PMA filed briefing asking the Court to stay the counterclaims. Dkts. 116, 117. ICTSI and the Port filed briefing urging the Court not to stay the counterclaims. Dkts. 113, 118.

As more fully described below, the Court grants in part and denies in part ILWU and PMA's joint motion to dismiss ICTSI's counterclaims and grants in part and denies in part PMA and ILWU's motions to dismiss the Port's counterclaims. Finally, the Court stays final resolution of the Port's first, second, and third counterclaims and ICTSI's first, second, and third counterclaims pending resolution of the related NLRB actions. The parties may, however, conduct discovery.

BACKGROUND

IBEW-represented employees have performed the reefer work on Terminal 6 since 1974. Beginning in March 2012, ILWU began filing grievances under the PCLCD's grievance and arbitration procedures alleging that ICTSI is “refusing and failing to assign to ILWU longshore mechanics the” reefer work in violation of the PCLCD. Compl. ¶ 29 (Dkt. 1). In May and June 2012, ILWU and PMA arbitrated ILWU's grievances. An arbitrator issued two decisions (the “PCLCD awards”) 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.

A. The NLRB Proceedings1. NLRB Case No. 19–CD–080738

When IBEW learned of ILWU's grievances, IBEW threatened to picket if ICTSI

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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 § 8(b)(4)(D) of the NLRA, 29 U.S.C. § 158(b)(4)(D), 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, at *1 (Aug. 13, 2012). ICTSI's § 8(b)(4)(D) charge triggered § 10(k) of the NLRA, 29 U.S.C. § 160(k), which empowers the NLRB to resolve jurisdictional disputes between unions. In Foley–Wismer & Becker v. National Labor Relations Board, the Ninth Circuit described the § 10(k) process:

Unfair labor practice charges brought under § 8(b)(4)(D) of the Act are handled in a way quite different from all other charges that may be brought under the Act.... When a charge is brought under § 8(b)(4)(D), the Regional Director conducts an investigation and, if appropriate, issues a notice of [a § 10(k)] hearing. 29 C.F.R. § 101.33 (1981). The hearing is to be within 10 days of the initial filing of charges. If the parties fail to reach a voluntary resolution of the dispute, a non-adversary hearing is held. The purpose of this hearing is simply to assemble a full record of the relevant facts. The hearing officer makes no recommendation as to resolution of the dispute. Id. § 101.35. The record thus assembled is transmitted to the Board, which either “determines the dispute” by issuing a § 10(k) award—an assignment of the disputed work to one of the contending unions—or ends the proceedings by determining that no jurisdictional dispute exists within the meaning of § 8(b)(4)(D).

682 F.2d 770, 772 (9th Cir.1982) ( en banc ) (internal citations omitted).

The NLRB issued a § 10(k) hearing notice in response to ICTSI's charge. ILWU intervened in the action. On May 24, 25, 29, and 30, 2012, 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. On August 13, 2012, the NLRB issued a § 10(k) decision awarding the reefer work to IBEW-represented employees. Id. 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 practice. Id. at *7. With respect to the collective bargaining agreements, the NLRB determined that the Port, which is not a party to the PCLCD, controlled the assignment of the reefer work. Thus, the NLRB found that it was irrelevant that the PCLCD purportedly requires ICTSI to assign reefer work to ILWU-represented employees because under the DCTU Agreement and the Terminal 6 Lease Agreement, the Port, not ICTSI, controls that assignment. The NLRB explained:

Both IBEW and ILWU are party to collective-bargaining agreements that cover the disputed work. The DCTU Agreement, to which IBEW and the Port are bound, states in pertinent part that it covers “all construction, demolition, installation and maintenance assignments which have been historically and consistently performed by employees covered under this Agreement at all marine cargo handling facilities owned and operated by the Port, including any marine cargo handling facilities leased and operated by the Port.” The “scope of [the DCTU Agreement] shall include

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any marine cargo handling facilities leased by the Port to an independent contractor to the extent the Port retains the responsibility for the maintenance or repair of any such leased facility or facilities.” As the Port retained maintenance and repair responsibilities for terminal 6 under its lease with ICTSI and as the disputed work has historically been performed by DCTU employees, the DCTU Agreement covers the disputed work.

[...]

As set forth above, ICTSI is bound to the PCLCD. Sections 1.7 and 1.71 of the PCLCD describe the scope of work and ILWU's jurisdiction as the “maintenance and repair of containers of any kind” and “maintenance and repair of all stevedore cargo handling equipment” used by PMA-member companies. However, in jurisdictional disputes, the relevant collective-bargaining agreement is the one negotiated with the employer who has ultimate control over the assignment of the disputed work. Elevator Constructors Local 91 (Otis Elevator Co.), 340 NLRB 94, 96 (2003). Here, the record evidence shows that the work in dispute is performed by IBEW-represented Port employees pursuant to the terms of the DCTU. The Port's lease makes clear that ICSTI cannot perform “at the Terminal any DCTU Work ... or ... undertake any action that would cause the Port to be in violation of the terms of the DCTU Agreement.” Because ICTSI has no authority to control the disputed work, the PCLCD is not relevant: it applies only to maintenance and repair work directed or controlled by a...