A container ship operator failed to establish that a unit of the International Longshore and
Warehouse Union violated the National Labor Relations Act by obtaining and seeking to enforce
an arbitrator’s decision to award cargo handling work to the union’s members, the U.S. Court of
Appeals for the Ninth Circuit held May 19 ( Am. President Lines, Ltd. v. Longshore & Warehouse
Union , 2015 BL 155092, 9th Cir., 14-35200, unpublished 5/19/15 ).
The appeals court held in 2013 that American President Lines Ltd. was entitled to sue the ILWU’s
Alaska Longshore Division, Unit 60 (721 F.3d 1147, (9th Cir. 2013); ) and remanded the case for a
review of the merits. However, a federal district court held that APL failed to show unlawful union
conduct, and it granted summary judgment in favor of the union.
In a memorandum opinion, Judges A. Wallace Tashima, Richard C. Tallman and N. Randy Smith
affirmed, saying the union’s action was lawfully focused on stevedoring work that was traditionally
performed by its members and controlled by APL.
Union Won Right to Alaska Container Work.
According to the decision and court records, APL is a member of a multiemployer group that is a
signatory with the ILWU to the All Alaska Longshore Agreement, or AALA.
The agreement is applied to dock work at ports in Alaska, including the Port of Seward on the
Alaska mainland and Dutch Harbor, a deep-water facility operated by APL.
APL entered agreements with barge companies, including Samson Tug & Barge, to transport
containers between Dutch Harbor and Seward, and Samson employees represented by the
Marine Engineers’ Beneficial Association loaded empty containers onto barges at Seward.
The longshore union claimed the work under the AALA, and filed a grievance on behalf of its
members. An arbitrator awarded the work to the ILWU-represented employees and ordered APL
to compensate them for lost work. Award Didn’t Bar Carrier’s Action for Damages.
APL filed an unfair labor practice charge with the National Labor Relations Board, arguing that the
ILWU’s pursuit of the grievance claiming the work violated Section 8(b)(4)(ii)(A) of the NLRA,
which prohibits coercing or restraining an employer to enter a prohibited “hot cargo” agreement, as
well as Section 8(b)(4)(ii)(B). The company argued that provision was breached by the union’s
efforts to force APL to cease doing business with Samson.
NLRB’s general counsel dismissed the unfair labor practice charge, and APL filed suit against the
longshore union under Section 303, which authorizes actions for damages caused by union
violations of Section 8(b)(4) of the NLRA.
The U.S. District Court for the District of Alaska dismissed the lawsuit, finding APL failed to file a
petition to vacate the arbitration award. The Ninth Circuit reversed, concluding the carrier could
pursue its Section 303 claim without first challenging the arbitration.
However, on remand, the trial court found the Section 303 claim was not viable, and the Ninth
Circuit agreed.
Ninth Circuit Finds Work ‘Fairly Claimable.’
While union efforts to enforce an unlawful agreement violate sections 8(b)(4)(ii)(A) and
8(b)(4)(ii)(B) of the act, the Ninth Circuit said a union may lawfully pursue a “work preservation
clause” agreement if it meets two requirements: “(1) the clause’s objective must be the
preservation of work for union members rather than a secondary goal; and (2) the employer must
have a ‘right of control,’ i.e., the power to assign the work.”
Tashima, Tallman and Smith observed that in the shipping industry, the bargaining unit comprises
multiple employers that are signatory to a collective bargaining agreement.
The ILWU historically performed work at Seward for at least one of the signatory companies, and
the court said “the stevedoring work in Seward is fairly claimable by the union.”
No Showing of Unlawful Union Objective. The court also said the district court properly found that an APL manager controlled the movement of the disputed containers and APL therefore “controls the assignment of the disputed Seward stevedoring work.”
The appeals court affirmed the lower court’s summary judgment in the union’s favor, finding the
ILWU “did not pursue an impermissible secondary objective when engaging in its arbitration
efforts.”
Littler Mendelson represented American President Lines Ltd. Leonard Carder represented the
International Longshore and Warehouse Union.
Reproduced with permission. Published 5/21/15. Copyright 2020 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bloombergindustry.com>