Levias v. Pac. Mar. Ass'n

• Decision Date: 07 January 2011
• Docket Number: Case No. 08–cv–1610–JPD.
• Citation: 760 F.Supp.2d 1036
• Parties: James F. (Jay) LEVIAS and Anthony Lemon, individually and on behalf of a class of all similarly situated claimants, Plaintiffs,v.PACIFIC MARITIME ASSOCIATION; Eagle Marine Services, Inc.; Marine Terminals Corporation; SSA Terminals, LLC; Stevedoring Services of America, Inc. (a/k/a SSA), SSA Marine, Inc., SSA Terminals, Inc.; APM Terminals Pacific, Ltd.; Husky Terminal and Stevedoring, Inc.; Pacific Crane Maintenance Company, L.P.; Sea Star Stevedore Company; and Washington United Terminals, Defendants.
• Court: U.S. District Court — Western District of Washington

760 F.Supp.2d 1036

James F. (Jay) LEVIAS and Anthony Lemon, individually and on behalf of a class of all similarly situated claimants, Plaintiffs,

v.PACIFIC MARITIME ASSOCIATION; Eagle Marine Services, Inc.; Marine Terminals Corporation; SSA Terminals, LLC; Stevedoring Services of America, Inc. (a/k/a SSA), SSA Marine, Inc., SSA Terminals, Inc.; APM Terminals Pacific, Ltd.; Husky Terminal and Stevedoring, Inc.; Pacific Crane Maintenance Company, L.P.; Sea Star Stevedore Company; and Washington United Terminals, Defendants.

Case No. 08–cv–1610–JPD.

United States District Court, W.D. Washington,at Seattle.

Jan. 7, 2011.

David Elliot Breskin, Breskin Johnson & Townsend PLLC, Seattle, WA, for Plaintiffs.Clemens H. Barnes, Adam S. Belzberg, Graham & Dunn, Seattle, WA, for Defendants.

ORDER GRANTING THE DEFENDANTS' AND INTERVENOR–DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

JAMES P. DONOHUE, United States Magistrate Judge.

I. INTRODUCTION AND SUMMARY CONCLUSION

Plaintiffs James Levias (“Levias”) and Anthony Lemon (“Lemon”) brought this suit against defendants Pacific Maritime Association (“PMA”) as well as eleven PMA employer-members alleging that the defendants violated the Fair Labor Standards Act of 1938 (“FLSA”), as amended, 29 U.S.C. § 201 et seq., and the Washington Minimum Wage Act (“MWA”), Rev.Code Wash. § 49.46 et seq. , by denying them compensation for travel time from the local union dispatch hall to the employer-member's terminals at the Port of Seattle, pre-shift time spent traveling from the port gate to the muster area and waiting for the shift to begin, and time spent performing pre-shift preparatory activities. This matter comes before the Court on motions for summary judgment by PMA and intervenor-defendant International Longshore and Warehouse Union (“ILWU”). Dkts. 96 and 102. Plaintiffs have filed a response opposing the motions, Dkts. 108, to which PMA and ILWU have replied, Dkts. 114 and 117. Levias has also filed a surreply. Dkt. 119. For the reasons set forth below, PMA's and ILWU's summary judgment motions, Dkts. 96 and 102, are GRANTED.

II. JURISDICTION

Pursuant to 28 U.S.C. § 636(c), the parties have consented to this matter proceeding before the undersigned United States Magistrate Judge. See Dkt. 9; Dkt. 43. The Court has general personal jurisdiction over the plaintiffs, who are both Washington residents. See Dkt. 44 at 1. The Court also has personal jurisdiction over PMA and the eleven employer-defendants in this action because the defendants have conducted substantial business in this jurisdiction, and the alleged cause of action arose out of the defendants' forum-related activities. See Dkt. 34 at 1–3; Dkt. 45 at 2. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(a). Venue is proper under 28 U.S.C. § 1391(b).

III. FACTS AND PROCEDURAL HISTORY

Defendant PMA is a multi-employer bargaining association representing approximately 70 employer-members in their dealings with ILWU and its locals. PMA's employer-members are stevedoring and shipping companies and marine terminal operators at ports in California, Oregon and Washington. The additional eleven defendants in this action are all PMA employer-members that have employed longshore workers and marine clerks in one or more of the eleven ports of Washington State. ILWU is the exclusive bargaining representative of longshore workers and marine clerks who are employed by members of PMA, and work under the terms of the Pacific Coast Longshore and Clerks Agreement (the “PCLCA”). See Dkt. 13 at 2 (Sundet Decl.). The PCLCA is the collective bargaining agreement governing longshore work on the West Coast. It is comprised of two contract documents, the Pacific Coast Longshore Contract Document (the “PCLCD”), and the Pacific Coast Clerks Contract Document (the “PCCCD”). See Dkt. 13 at 3 (Sundet Decl.); Dkt. 56 at 2 (Ventoza Decl.).

Plaintiffs Levias and Lemon are longshore workers who are represented by ILWU Local 19, and primarily work at the Port of Seattle.¹ Levias Dep. at 33. Levias is a Class B registered longshore worker who, with rare exceptions, has been dispatched to Seattle jobs for PMA employer-members SSA Terminals, Inc. (“SSAT”), Eagle Marine (“Eagle”), and Marine Terminals Corporation (“MTC”). Id. Specifically, Levias has done top pick work, “a lot of lashing, a little bit of stevedore, but the majority is driving semi [-trucks].” Id. at 12, 33. Lemon is a Class A registered longshore worker primarily dispatched to work for SSAT. Lemon Dep. at 46–47, 122. Lemon has occasionally worked as a dockman, heavy bull operator, or foreman, but typically works as a top pick handler. Id. at 108–10, 112, 118–19, 127.

Available longshore work is uneven and not guaranteed, and depends on variables such as the number of ships in port and the amount of cargo to be loaded or unloaded. Each day that plaintiffs and all other longshore workers want to work, they must first go to one of the twelve ILWU dispatch halls used for assigning longshore workers to the eleven ports in Washington.² Dkt. 56 at 5 (Ventoza Decl.). The dispatch hall that plaintiffs report to in Seattle is the ILWU Local 19 dispatch hall (the “Local 19 dispatch hall”). The dispatchers at the Local 19 dispatch hall use a peg board system to fairly distribute available work opportunities.³ See id. at 6. Class A registered longshore workers, such as Lemon, enjoy first preference in selecting available jobs, followed by Class B registered longshore workers, such as Levias. See id.; Levias Dep. at 21. If additional workers are needed beyond the Class A and B registered longshore workers, then identified casuals and unidentified casuals are offered the remaining work, in that order. See Dkt. 56 at 6 (Ventoza Decl.).

The dispatcher typically issues one dispatch slip listing the names of all the longshoremen assigned to a particular worksite, and asks one longshore worker assigned to that worksite to take the dispatch slip to the foreman.⁴ Following dispatch, plaintiffs “have to report at a certain time ... at the worksite at the Port.” Dkt. 120 at 2 (Levias Decl.).

Longshore workers then travel variable distances to their assigned port terminal. Levias and Lemon testified that the “three to four mile” drive from the Local 19 dispatch hall to Terminal 18, where SSAT is located, could take between seven to twenty minutes “because of the trains or a bridge could be open or you could get football traffic.” Levias Dep. at 34–36; Lemon Dep. at 61. Although there is no evidence in the record regarding the length of the drive from the Local 19 dispatch hall to Eagle, the drive to MTC takes “just a few minutes.” Levias Dep. at 52. When plaintiffs arrive at their terminal, they must show identification to “badge through” the port gate. Id. at 53. After parking in the terminal parking lot, plaintiffs typically don their safety vests, hard hats, and hard-toed boots. See id. at 38–39. Overalls are optional. See Dkt. 92 at 2 (Stearns Decl.).

If longshore workers will be operating equipment, such as a semi-truck or forklift, they are not assigned to a particular piece of equipment but generally can choose the equipment they prefer to operate on a first-come-first-serve basis. See Levias Dep. at 109, 126; Lemon Dep. at 37–38. As a result, plaintiffs typically walk from the parking lot to the fueling area in order to select their preferred equipment. See Levias Dep. at 38. Plaintiffs are required to perform a brief safety check before operating the equipment, which takes anywhere from “thirty seconds or so” to “just a couple minutes.” Id. at 109, 125–26; Lemon Dep. at 37–38. This safety check involves visually inspecting the hydraulic hoses or air hoses, safety belts, mirrors, and making sure there are no flat tires and the backup alert is working. See Levias Dep. at 41, 137–38. Mechanics, rather than plaintiffs, are responsible for actually maintaining the equipment. Id. at 46. After performing the safety check, plaintiffs “make [their] way to the break room,” typically by driving their equipment to the muster area, where the foreman will give a safety speech that marks the beginning of the shift. Id. at 38; Lemon Dep. at 125. Plaintiffs have occasionally gone straight from the parking lot to the muster area, and have selected their equipment and performed the required safety check after the beginning of their shift. Lemon Dep. at 127. Similarly, if plaintiffs will not be operating equipment on a particular day, they take a bus or shuttle directly from the parking lot to the muster area. Levias Dep. at 47, 54–55.

At the muster area, plaintiffs locate and sign in with the foreman, receive their work assignment for the day, and wait for the foreman's safety speech to signal the beginning of the shift. See id. at 47–48. While waiting for the shift to start, plaintiffs can socialize, drink coffee, “read newspapers or the foreman sometimes might give you other directions ... You never know what's going to happen.” See id. at 56. According to plaintiffs, the entire process of arriving at the terminal parking lot, walking to the fueling area, selecting equipment, performing the required safety check, traveling to the muster area, and reporting to the foreman can take plaintiffs between five to twenty minutes. See id. at 66–69.

Levias filed this action in the King County Superior Court on October 6, 2008, alleging violations of the MWA on behalf of himself and as a putative representative of a class consisting of “all longshore workers who appeared at and were dispatched from any dispatch hall in the state of Washington to any job for PMA and its members during the time period from October 3, 2002 to present,” and who were not compensated for pre-shift work including travel time from the dispatch hall to the jobsite, wait time at the job site, and pre-shift preparation time. Dkt....