International Longshore v. Port of Tacoma

• Decision Date: 02 February 2010
• Docket Number: No. 38341-1-II.,38341-1-II.
• Citation: 225 P.3d 433,154 Wn. App. 373
• Court: Washington Court of Appeals
• Parties: INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 23, Appellant, v. PORT OF TACOMA, Respondent.

225 P.3d 433

154 Wn. App. 373

INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 23, Appellant, v. PORT OF TACOMA, Respondent.

No. 38341-1-II.

Court of Appeals of Washington, Division 2.

February 2, 2010.

Lawrence Rea Schwerin, Schwerin Campbell Barnard Iglitzin & Lav, Seattle, WA, for Appellant.

J. Markham Marshall, Barry Neal Mesher, Lane Powell PC, Seattle, WA, for Respondent.

Donald E. Clocksin, Attorney at Law, Olympia, WA, for Respondent Intervenor.

PENOYAR, A.C.J.

¶ 1 The question before us is whether the superior court properly dismissed an action to enforce an arbitration award under CR 12(b)(1) for lack of jurisdiction. The superior court had inherent jurisdiction over the civil action and we remand for the superior court to consider that matter. At the same time, we find that the Public Employment Relations Commission (PERC) had exclusive decision-making authority over which union rightfully performed the disputed work. Thus, we reverse and remand for the superior court to determine what, if any, other relief International Longshore and Warehouse Union (ILWU) Local 23 (Local 23) may be entitled to under the arbitration award.

Facts

¶ 2 Beginning in the 1970s, the Port of Tacoma (the Port) had a collective bargaining relationship with Local 23. At that time, Local 23 represented both private and public sector employees working in Port facilities. Private sector employees worked under the terms of a collective bargaining agreement with the Pacific Maritime Association (PMA) (referred to as the "Longshore Division"). Public employees held specific work classifications (referred to as the "Port Workers Division").

¶ 3 In March 2006, with Local 23's consent, the Port Workers Division created a new ILWU division called Local 22. Two work classifications are important here. First, the marine clerks are private sector employees who work under the PMA and are part of Local 23. Second, the railcar coordinators are historically public sector employees of the Port Workers Division and are part of Local 22.

¶ 4 Railcar coordinators plan the sequence of off-loading containers from ocean-going vessels to rail cars. There are four such coordinator positions and they operate in the Port's North Intermodal Tower. In 2004, the Port implemented a computerized program (known as Spinnaker) to simplify this process.

¶ 5 Once the railcar coordinators develop a plan for the sequence and loading patterns for the freight trains leaving the Port, they forward the plan to the marine clerks to implement the loading scheme. While marine clerks have discretion to make minor adjustments to the plan, they do not have authority to modify the general loading order.

¶ 6 The Port's collective bargaining agreement with Local 23 requires it to abide by the Pacific Coast Longshore Contract Document (PCLCD) and the Pacific Coast Clerks Contract Document (PCCCD). According to Local 23, Section VI(A)(4)(e)(ii) of the PCCCD Technology Framework assigns rail planning work to the marine clerks as a quid pro quo in 2002 bargaining. That section provided:

In exchange for the employers' right to introduce new technologies, the following work and functions shall be assigned to marine clerks at all facilities covered by the PCCCD.

Rail Planning Operations. Marine clerks shall be assigned rail planner duties and functions generally identified as directing and executing the flow of cargo, planning and determining the particular place or area on a railcar where cargo is to be placed or relocated and involving the preparation, confirmation, distribution and reconciliation of all documents required by the employer for such work, including the input of data or the utilization of computer programs. It is understood that the practice of direction of supervisors by management is recognized and shall not be disturbed.

Clerk's Papers (CP) at 142.

¶ 7 When the Port and Local 23 could not resolve Local 23's claim to the railcar coordinator positions, Local 23 invoked the arbitration provision in the PCCCD. On February 27, 2008, before the formal arbitration hearing took place, the Port filed a petition with the PERC concerning the bargaining unit status of railcar coordinators. Following an April 15, 2008 hearing in which the Port, Local 22, and Local 23 participated, the PERC made, among other findings, the following:

4. The position of railcar coordinator is part of a bargaining unit of Port of Tacoma employees represented by Local 22.

....

6. International Longshore and Warehouse Union, Local 23 does not have any factual claim on the work being performed by railcar coordinators in the bargaining unit represented by International Longshore and Warehouse Union, Local 22.

CP at 99-100. The PERC concluded:

3. The position of railcar coordinator is appropriately within to [sic] the existing bargaining unit of Port of Tacoma employees represented by International Longshore and Warehouse Union, Local 22, and the railcar coordinator position must retain the duties it has historically performed.

4. There is no question concerning representation in the bargaining unit of Port of Tacoma employees represented by International Longshore and Warehouse Union, Local 22, since Local 22 already represents the railcar coordinators, and their work remains in Local 22's unit.

CP at 100.

¶ 8 In the arbitration proceedings, the Port requested that the arbitrator not proceed until the PERC had made its decision. The arbitrator declined and, on March 31, 2008, decided:

This Arbitrator's jurisdiction is limited to the PCCCD and all parties bound by it. Any other dispute must be resolved in another arena.

....

All the items contained in Union Exhibit No. 2 is work ceded to marine clerks in the 2002-2008 PCCCD and shall be assigned immediately by the Port of Tacoma to ILWU Local 23 Marine Clerks.

CP at 142-43 (italics omitted).

¶ 9 On April 18, 2008, the arbitrator held a non-implementation hearing because the Port refused to implement the arbitration award. CP 146. The arbitrator ruled It is crystal clear the Port of Tacoma has gone and continues to go to great lengths to avoid implementing the March 31, 2008 Award. Therefore, the Port of Tacoma shall pay one Marine Clerk Supervisor per shift for each shift starting April 18, 2008 the Port of Tacoma has conducted rail operations at their North Intermodal Yard until they implement the Award as written.

CP at 147 (italics omitted).

¶ 10 On June 30, 2008, Local 23 filed a complaint to enforce and confirm the arbitration award in superior court. The Port filed a motion to dismiss under CR 12(b)(1) and for attorney fees and costs. The superior court granted Local 22's motion to intervene. Local 22 then joined in the Port's motion to dismiss. On August 22, the superior court granted the motion to dismiss and granted attorney fees and costs to the Port.

¶ 11 Local 23 appeals.

Analysis

I. Standard of Review

¶ 12 CR 12(b)(1) allows the superior court to dismiss an action on the pleadings for lack of subject matter jurisdiction. We review such a decision de novo. Local Union I-369, Oil, Chem. & Atomic Workers Int'l Union v. Sandvik Special Metals Corp., 102 Wash.App. 764, 770, 10 P.3d 470 (2000).

II. Local 23

¶ 13 Local 23 argues that the superior court erred in dismissing its cause of action for lack of jurisdiction. It notes that courts routinely assert jurisdiction in disputes involving public entities and collective bargaining agreements, (citing Minter v. Pierce Transit, 68 Wash.App. 528, 843 P.2d 1128 (1993) (collective bargaining agreement allowed employee to elect to pursue judicial remedies rather than arbitration)). More specifically, Local 23 notes that superior courts have specifically asserted jurisdiction to review challenges to labor arbitration awards involving public entities under the constitutional right of certiorari, (citing Clark County Pub. Util. Dist. No. 1 v. Int'l Bhd. of Elec. Workers, 150 Wash.2d 237, 245, 76 P.3d 248 (2003) (scope of review is deciding whether arbitrator acted illegally by exceeding his authority under the contract); Wright v. Terrell, 135 Wash.App. 722, 729, 145 P.3d 1230 (2006) (superior court and the PERC have original jurisdiction to hear unfair labor practice charges)).

¶ 14 Local 23 argues that this is a breach of contract claim against the Port to enforce the PCCCD. As the contract requires, it first sought arbitration. Now, as appropriate, it is seeking enforcement of that award in superior court. It argues that when the Port agreed to include an arbitration clause in the PCCCD contract, the Port agreed to use the arbitration process for resolving disputes under the collective bargaining agreement. It argues that the Port cannot circumvent the contract "by ignoring the arbitrator's decision and seeking refuge at the PERC, especially when the PERC decision does not even address the breach of contract claim." Appellant's Br. at 9. Finally, it argues, that if the Port finds fault with the arbitrator's decision, it had an obligation to make that argument to the superior court.

¶ 15 Local 23 also notes that because the PERC has no authority to interpret collective bargaining agreements or to address violations of those agreements, the only mechanism to enforce an arbitration award is through the superior court.

¶ 16 Analogizing to W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum, & Plastic Workers of Am., 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983), Local 23 argues that, notwithstanding the Port's obligations to Local 22, the Port is liable for violating the collective bargaining agreement. W.R. Grace argued that it had two competing requirements, one under its collective bargaining agreement and another under a consent decree it had with the Equal Employment Opportunity Commission. The Supreme Court observed:

By entering into the conflicting conciliation agreement, by seeking a court order to excuse it from...