Sea-Land Service, Inc. (Pacific Div.) v. International Longshoremen's and Warehousemen's Union, Locals 13, 63, and 94

Decision Date29 July 1991
Docket NumberSEA-LAND,No. 90-55756,90-55756
Citation939 F.2d 866
Parties138 L.R.R.M. (BNA) 2057, 119 Lab.Cas. P 10,866 SERVICE, INC., (PACIFIC DIVISION), Plaintiff-Appellant, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCALS 13, 63, AND 94, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Robert J. Attaway, Haight, Gardner, Poor & Havens, New York City, for plaintiff-appellant.

William H. Carder, Leonard, Carder, Nathan, Zuckerman, Ross, Chin & Remar, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before D.W. NELSON, O'SCANNLAIN and TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

Having won a battle before the National Labor Relations Board ("NLRB"), Sea-Land Service, Inc. ("Sea-Land") seeks to broaden the reach of its victory in its war with the International Longshoremen's and Warehousemen's Union ("ILWU" or "Union").

I

A review of related prior skirmishes between Sea-Land and the ILWU is necessary to understand the present controversy.

Sea-Land transports containerized cargo worldwide, operating its own fleet of specially designed containerships and ground transportation equipment. Sea-Land's Pacific Division operates on the west coast of the United States, including the port of Long Beach, California.

Prior to 1980, Sea-Land maintained two sites in Long Beach for the handling of shipping containers, a thirty-seven acre fenced marine terminal on the waterfront ("container yard") and a fifteen acre container freight station located about two miles inland. The Container Stevedoring Corporation, a second-tier subsidiary of Sea-Land, is under contract with Sea-Land to supply marine yard workers at the dock-side container yard. Container Stevedoring's employees are represented by the ILWU. The Teamsters represent Sea-Land's container freight station employees.

Because of over-crowding at the container yard, in 1980 Sea-Land leased a facility across the street from the container yard. This facility is called "Pelican Pond." After leasing Pelican Pond, Sea-Land assigned the work there to its Teamster-represented freight station employees. This decision gave rise to a series of disputes among the Teamsters, the ILWU, and Sea-Land. Both unions claimed their members were entitled to the work at Pelican Pond, asserting that the operations there were merely an extension of the work that each had traditionally performed. The ILWU filed a grievance under its collective bargaining agreement with Sea-Land. 1 In its grievance, the ILWU claimed that it was due "time-in-lieu" payments for the work performed by the Teamsters at Pelican Pond. 2 The area arbitrator, George Love, found Sea-Land in violation of the agreement and ordered Sea-Land to make the payments (award No. SC-31-80). The coast arbitrator, Sam Kagel, upheld the area arbitrator's award on December 7, 1980 (award No. C-31-80). Kagel reasoned that the work at Pelican Pond was merely an "extension of the dock," entitling the ILWU to the work.

Shortly after the Kagel award, the Teamsters threatened to picket Sea-Land if it assigned the work at Pelican Pond to the ILWU. Sea-Land responded by charging that the Teamster threat constituted an unfair labor practice in violation of section 8(b)(4)(ii)(D) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(b)(4)(ii)(D). Following a hearing held pursuant to section 10(k) of the NLRA, 29 U.S.C. Sec. 160(k), the National Labor Relations Board ("NLRB") awarded the work in dispute to the Teamsters. The NLRB's decision rested chiefly upon the relative economy and efficiency of the Teamsters performing the work, and on Sea-Land's preference for the Teamsters. Notably, the NLRB refused to consider the contents of either the Teamsters' or the ILWU's collective bargaining agreements, observing that none of the parties had entered the agreements into evidence. Rather, the Board placed particular emphasis on the fact that "[t]he record ... clearly discloses that assigning the work to longshoremen rather than to teamsters would require the Employer to utilize a greater number of employees." The ILWU unsuccessfully moved for reconsideration of the Board's decision, but did not otherwise seek to challenge the Board's determination.

After the section 10(k) order issued in September 1981, Sea-Land used the Teamsters to perform the contested work at Pelican Pond. However, the ILWU felt that Sea-Land had adopted an unduly broad interpretation of the order and, on January 10, 1983, the ILWU again filed grievances, claiming that Sea-Land was violating its collective bargaining agreement with PMA by assigning to the Teamster-represented employees work at Pelican Pond not covered by the order. Arbitrator Love determined that Sea-Land was in violation of the contract (award No. SC-6-83). Sea-Land paid the ILWU $4,300 under protest, but continued to assign the disputed work to the Teamsters. On January 24, 1983, Richard Lomelli, a business agent of Local 13 of the ILWU, told a Sea-Land representative that he would "walk the gang" if Teamsters continued to perform work at Pelican Pond.

On January 26, 1983, Sea-Land filed a new section 8(b)(4)(ii)(D) charge, this time against the ILWU. Sea-Land also filed this action in federal district court seeking to vacate the arbitration awards upon which the ILWU was basing its claims, and to enjoin the ILWU from filing further grievances claiming time-in-lieu payments and from threatening work stoppages in connection with Pelican Pond. The district court stayed the action pending resolution of the NLRB proceedings.

A second 10(k) hearing was held before the NLRB. The NLRB issued its decision on July 29, 1988, in which it rejected the ILWU's contentions. It was "crystal clear," the NLRB concluded, that the challenged work was virtually identical to the work previously awarded to the Teamsters. The NLRB issued a cease-and-desist order which enjoined any further claims for work or time-in-lieu claims based on the Kagel and Love awards.

The ILWU petitioned the Court of Appeals for the District of Columbia for review of the NLRB decision; the NLRB filed a cross-application seeking enforcement of its decision and order. The court of appeals issued its decision on September 5, 1989, rejecting the ILWU's arguments and granted the NLRB's cross-application for enforcement of its order. See International Longshoremen's & Warehousemen's Union v. NLRB, 884 F.2d 1407 (D.C.Cir.1989).

Meanwhile, another dispute regarding work assignments arose between the ILWU and Sea-Land, not involving work at Pelican Pond. On January 15, 1987, arbitrator Love found in favor of the ILWU in this dispute (the "third Love award"), specifically basing his award on the "extension of the dock" theory he had articulated in the previous Kagel and Love awards. Moreover, on January 29, 1990, counsel for the ILWU announced in a letter to the NLRB that while the ILWU would no longer seek to enforce the arbitration awards with respect to Pelican Pond, it still considered the awards fully valid for all other purposes and intended to continue citing the void awards as "precedent" in other economic actions against Sea-Land.

On March 15, 1990, the district court lifted the stay in Sea-Land's original action, and Sea-Land filed a motion for summary judgment seeking to have the arbitration awards either declared void as a matter of law or vacated. On March 23, 1990, the ILWU filed a cross-motion for summary judgment, claiming that Sea-Land's action was moot. On May 7, 1990, the district court dismissed Sea-Land's action on jurisdictional grounds. This appeal followed. 3

II

In its pleadings before the district court, Sea-Land asked for the following injunction:

That Defendants, their officers, agents, members and other persons in active concert or participation with them are permanently enjoined and restrained from in any manner:

(a) Threatening, instigating, directing, causing, assisting, encouraging, or participating in any strike or work stoppage, slow-down, picketing, or interruption of work in connection with work at Pelican Pond;

(b) Filing any claims for money in lieu of lost work opportunities in connection with work at Pelican Pond; and

(c) Instituting any further claims, proceedings or economic actions based on arbitration awards SC-6-83, C-31-80, or SC-31-80.

In addition, Sea-Land sought a declaration that arbitration awards SC-6-83, C-31-80 and SC-31-80 are null and void as a matter of law, or, in the alternative, an order vacating the foregoing arbitration awards. The district court denied Sea-Land's requests for relief and dismissed Sea-Land's complaint for want of jurisdiction, stating:

The Court finds that, under all the circumstances the undisputed facts do not show that there is a substantial controversy between parties having adverse legal interest of sufficient immediacy and reality to warrant the relief plaintiff seeks. Without such controversy, the Court is without jurisdiction over this action.

While not expressly identifying either doctrine, the district court's holding implicates the doctrines of both mootness and ripeness. Mootness, of course, suggests that the "live controversy" has passed, while ripeness suggests that such controversy has yet to occur. See Western Oil & Gas Ass'n v. Sonoma County, 905 F.2d 1287, 1290 (9th Cir.1990) ("The ripeness inquiry asks whether there yet is any need for the court to act, while the mootness inquiry asks whether there is anything left for the court to do.") (quotations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 784, 112 L.Ed.2d 846 (1991). Here, resolution of the dispute regarding Pelican Pond itself suggests that the action might be moot similarly, the absence of a current grievance involving the Pelican Pond arbitration awards suggests that the case might be unripe.

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