Metropolitan News-Enterprise


Monday, July 8, 2013


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Ninth Circuit Reverses Part of Award in Union Dispute That Turned Violent


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday upheld a district judge’s order that a longshore workers union pay damages to the National Labor Relations Board and an employer in connection with union picketing that turned violent at the Port of Washington.

The panel reversed, however, a portion of the order that would have required the union to also pay damages to a railroad whose operations were disrupted, and to four law enforcement agencies whose officers were called out to remove protesters from train tracks. The appeals court said those awards were improper because the railroad and the agencies were not parties to the underlying labor dispute.

The NLRB sued two locals of the International Longshore and Warehouse Union in 2011, charging unfair labor practices. The agency claimed the union was engaged in harassment and assault of employees and contractors of Export Grain Terminal, LLC and others, including the issuance of death threats to those who crossed picket lines, blocking of railway cars to prevent deliveries, and dropping nails on the road leading to the company’s facility in Longview, Wash.

Jurisdictional Dispute

The labor dispute, which was settled in January of last year, according to news reports, stemmed from EGT’s operation of a grain terminal on land it leased from the port. The ILWU claimed the operation of the facility by workers whom it did not represent violated its collective bargaining agreement with the port.

EGT denied being bound by that agreement and set up picket lines.

U.S. District Judge Ronald Leighton of the Western District of Washington issued a TRO barring specified activities in connection with the picketing. The NLRB subsequently moved to hold the union in contempt.

Leighton found the union in contempt, ordered payment of $250,000 in damages, and issued a preliminary injunction to bar the same activities prohibited by the TRO. He subsequently found the union in contempt for violating the preliminary injunction a week after it was issued, by blocking railroad tracks and again preventing a Burlington National Santa Fe train from delivering grain

That incident was resolved only after neatly 100 law enforcement officers were called out and several picketers arrested. Leighton imposed another $65,000 in damages, payable to the NLRB.

Awards Not Precluded

U.S. District Judge Raner C. Collins of the District of Arizona, sitting on the Ninth Circuit by designation, rejected the union’s claim that the damage awards were precluded by Sec. 303 of the Labor Management Relations Act. That section authorizes lawsuits for secondary boycotts and other unfair labor practices.

Collins said there is nothing in the history or text of the statute to suggest that Congress intended to make it the exclusive means of compensating victims of unfair labor practices.

As for the damage awards themselves, the jurist wrote, there was nothing to indicate that they were excessive or that the process was unfair.

Noting that the union did not appeal the underlying finding of contempt, Collins said the district judge “reviewed the various affidavits, declarations, and photos submitted by the NLRB before awarding damages,” heard testimony, and allowed union lawyers to cross-examine witnesses and preset evidence.

Collins also noted that the judge took the union’s objections that some of the events for which damages were sought predated or postdated the period covered by the contempt allegations into consideration and cut $50,000 from the amount requested by the NLRB.

He did, however, reject the union’s contention that the NLRB failed to prove its claim by clear and convincing evidence.

Every circuit that has considered the issue, he explained, has applied a preponderance standard to the establishment of damages in a civil contempt proceeding. The issue need not be resolved in this case, however, because the evidence was clear and convincing.

Case Sighted

But Collins agreed with the union that the damage awards to Burlington Northern and the state and local law enforcement agencies from Cowlitz and Kelso counties—about $70,000 in total—had to be reversed. He cited New York v. Operation Rescue National, 80 F.3d 64 (2d Cir. 1996), holding that the state could not seek civil contempt sanctions payable to abortion clinics it alleged were the victims of illegal protest activities.

There are, Collins acknowledged, statutes such as the Fair Housing Amendments Act that specifically authorize the government to seek monetary awards on behalf of victims of violations of the statute. But he rejected the NLRB’s argument that such awards could be made as consistent with the purpose of the National Labor Relations Act, which contains no such specific provision.

Senior Judge Dorothy W. Nelson and Judge Consuelo M. Callahan joined in the opinion.

The case is Ahearn v. International Longshore and Warehouse Union, 11-35848.


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