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Terminalift LLC v. International Longshore & Warehouse Union Local 29

United States District Court, S.D. California

September 30, 2013


Page 1100

For Terminalift LLC, a California limited liability company, Plaintiff: Michael E. Avakian, LEAD ATTORNEY, PRO HAC VICE, Wimberly, Lawson & Avakian, Washington, DC; Stephen F. Lopez, LEAD ATTORNEY, San Diego, CA.

For International Longshore and Warehouse Union, Local 29, a labor organization, Defendant: Eleanor Irene Morton, LEAD ATTORNEY, Emily Maglio, Leonard Carder, LLP, San Francisco, CA; Philip Carl Monrad, LEAD ATTORNEY, Leonard Carder, LLP, Oakland, CA; Robert Steven Remar, LEAD ATTORNEY, Leonard Carder LLP, San Francisco, CA.

Page 1101


Hon. Thomas J. Whelan, United States District Judge.

Pending before the Court is Defendant International Longshore and Warehouse Union Local 29's (" Local 29" ) motion for partial summary judgment. Plaintiff Terminalift LLC opposes, and has filed a motion to substitute Exhibit I in its opposition.

The Court decides the matters on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART Local 29's motion [Doc. 47], and GRANTS Terminalift's motion to substitute [Doc. 52].

I. Background

A. Relevant actors & the collective bargaining agreement.

The International Longshore and Warehouse Union (" ILUW" ) is the exclusive collective bargaining representative for all longshore workers, longshore mechanics and marine clerks employed by companies belonging to the Pacific Maritime Association (" PMA" ). ( Sundet Dec. [Doc. 47-7], ¶ 4.) The PMA is a multi-employer collective

Page 1102

bargaining agent for approximately 70 stevedoring, terminal operator and steamship companies operating at approximately 30 ports in California, Oregon and Washington. ( Id., ¶ 2)

The ILUW and PMA are parties to a collective bargaining agreement, known as the Pacific Coast Longshore and Clerks' Agreement. The agreement is set forth in two documents covering the terms and conditions of employment for ILUW members employed by PMA member companies in West Coast ports. ( Sundet Dec., ¶ 7.) Relevant to this case is the document covering longshore workers, the Pacific Coast Longshore Contract Document (the " Labor Contract" ), effective July 1, 2008 to July 1, 2014. ( Labor Contract, at A-000001.[1]) The Labor Contract covers, among other items, " the movement of outbound cargo only from the time it enters a dock and comes under the control of any terminal, stevedore, agent or vessel operator covered by this [Labor] Contract [] and covers movement of inbound cargo only so long as it is at a dock and under the control of any vessel operator, agent, stevedore, or terminal covered by this" agreement. ( Id., ¶ 1.11.)

Defendant Local 29 (the only named defendant in this case) is a local labor union affiliated with the ILUW. ( Sundet Dec., ¶ 5.) Local 29 represents longshore workers, longshore mechanics, and marine clerks employed by PMA member companies operating in the Port of San Diego (the " Port" ). ( Id. ) SSA Marine is one of the PMA-member stevedoring companies operating at the Port.[2] ( Id., ¶ 3.) Local 29 and SSA Marine are covered by the Labor Contract.

Plaintiff Terminalift is a non-union cargo handling equipment company operating out of the Port, and other California locations. ( Schmitz Dep., 16:4-10.[3]) It owns specialized material-handling equipment to offload fragile and vibration sensitive heavy cargo for foreign and domestic businesses, such as 70-foot windmill blades.

B. Local 29 and SSA Marine's labor dispute.

For years before and through April 2011, Local 29 complained tat SSA Marine was violating the Labor Contract by failing to assign to longshore workers the work of unlashing windmill components under SSA Marine's control. ( Dietenhofer Dep., 17:9-16, 63:3-5 [4]; Sawyer Dep., 41:11-44:5, 92:1-93:2, 93:19-94:20 [5]; Maglio Dec., Ex. 29 [Doc. 47-6]; Pl.'s Resp. Sep. State. [51-1], No. 36.) Although longshore workers performed this work at other West Coast ports ( Sundet Dec., ¶ 18), SSA Marine's position was that the agreement did not cover unlashing windmill components at the Port of San Diego.[6]

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( Dietenhofer Dep., 17:2-6, 63:3-14; Sawyer Dep., 93:15-18.) SSA Marine was able to avoid arbitration with Local 29 over the dispute for years by asserting that section 1.27 of the Labor Contract allowed SSA Marine to assign the work to non-union operators, such as Terminalift. ( Dietenhofer Dep., 63:5-8.)

C. The April 2011 labor protest.

On April 12, 2011, Local 29's President Raymond Leyba, and Vice President and Business Agent Steven Pitre observed Terminalift performing vessel loading work at the Tenth Avenue Marine Terminal (" TAMT" ) in the Port. ( Leyba Dep., 152:14-154:15 [7]; Pl.'s Resp. Sep. State., No. 8.) The work was being performed for SAIC onboard the vessel, the Ocean Pioneer. Leyba believed that Terminalift was using SSA Marine's equipment, and thus SSA Marine was again violating the Labor Contract by not assigning work to longshore workers that was under SSA Marine's jurisdiction or control. ( Id., 153:12-13, 182:9-25.)

At approximately 8:00 a.m., Pitre approached the gangway of the Ocean Pioneer and demanded to speak with an SAIC representative. ( Deleeuw Dep., 64:18-21.[8] ) David Deleeuw, SAIC's Senior Project Manager in charge of the operation, responded. ( Id., 65:3-8.) When Deleeuw met Pitre on the dock, Pitre told him to " get in his truck, that [SAIC was] going to hire" the union. ( Id., 65:7-14, 66:6-17, 67:4.) Pitre did not threaten Deleeuw, who nevertheless was " a little" concerned for his safety. ( Id., 66:21-67:4, 74:17-19, 170:2-16.) The two then drove to SSA Marine's offices at the TAMT.

While at SSA Marine's offices, Pitre demanded that SSA Marine take over Terminalift's work. SSA Marine's logistics coordinator, Frances Sawyer, told Pitre that he should take Deleeuw back to the ship and that they should talk " about this privately." ( Deleeuw Dep., 72:5-7.) Sawyer also told Pitre that the union should " not force these guys to do something that they don't have to do." ( Id., 72:12-15; Sawyer Dep., 55:13-19.) After the two " went back and forth a couple of times," Pitre drove Deleeuw back to the Ocean Pioneer. ( Id., 72:17-18.)

Meanwhile, Local 29 President Leyba decided to call on longshore workers to stage a labor rally. ( Leyba Dep., 157:15-17.) Initially, the protest involved approximately 10-15 longshore workers. ( Deleeuw Dep., 77:10.) By about 10:00 a.m., there were approximately 30 people involved in the protest ( Id., 79:21-80:3, 82:7-9; Forsythe Dep., 18:17-19, 20:16-18 [9]), and by lunchtime there were between 70 and 150 longshore workers contained in a roped-off area approximately 125 feet from the gangway of the Ocean Pioneer. ( Cummings Dep., 60:19-61:10,

Page 1104

97:16-24, 98:19-21 [10]; Deleeuw Dep., 87:14-88:1; McKeller Dep., 49:23-25, 76:23-25 [11]; Maglio Dec., Ex. 14 [Doc. 47-4] at TL000650.) The picketers yelled and held signs saying " get off our dock," " an injury to one is an injury to all," " ILWU Jurisdiction," and " ILWU Work." ( Pl.'s Exhibits, Ex. C [Doc. 51-3] at 7:13-14; Deleeuw Dep., 88:10-20.) None of the picketers attempted to cross the rope. ( Cummings Dep., 61:25-62:1.)

When the initial group of protestors arrived, one of the longshore workers sat on a reel of cable that was about to be lifted onto the Ocean Pioneer. ( Deleeuw Dep., 79:2-4.) Pitre refused Deleeuw's request to ask the man to get off the equipment, which required Terminalift to stop work for safety concerns. ( Id. 79:7-12, 82:16-22.) Deleeuw then called the TAMT Port Operations and informed them that they " had to stop work because of safety issues with the person there and the concern about the picketers." ( Id., 84:1-4.) A Port representative then called the Harbor Police.

Officer Yvette Joyner was the first officer to arrive on the scene. Based on her observations, she understood there was " a dispute going on" but felt " it was something civil" and therefore " approached it as just keeping the peace." ( Joyner Dep., 28:9-23.[12]) She observed longshore workers yelling at the men on the ship. ( Id. 28:17-18, 29:13-2.) She also observed men from the ship yelling back at the longshore workers. ( Id., 75:8-11.) Aside from the yelling, Officer Joyner did not witness any longshore workers threaten any violence, nor did anyone tell her that they witnessed any violence. ( Id., 73:4-13.) Two other officers on the scene, Lieutenant John Forsythe and Officer Jared Osselaer, also testified that they did not witness any violence, or anyone threaten any violence. ( Forsythe Dep., 30:10-11, 47:11-22, 48:15-17; Osselaer Dep., 28:16-29:2, 30:23-31:2.[13])

At approximately 1:00 p.m., a meeting was set up with representatives from the Port, Local 29, the Ocean Pioneer and SAIC. ( Deleeuw Dep., 92:9-94:12.) During the meeting, Leyba stated that the reason for the rally was because Local 29 believed the union's " contractual jurisdiction was being . . . violated . . . because there was SSA equipment on the job." ( Leyba Dep., 181:17-182:14.) Local 29 demanded that SSA Marine use union labor to complete the job. SAIC agreed and hired SSA Marine to complete the work. ( Deleeuw Dep., 97:17-22.)

D. Resolution of the labor dispute.

A few weeks after the April 12 labor protest, SSA Marine's Port Manager, Jack Dietenhofer, had a conversation with David Miller, the standing arbitrator for Southern California. According to Dietenhofer, Miller had seen some of Local 29's complaints regarding the assignment of work to Terminalift, and Miller opined that the Labor Contract required SSA Marine to use longshore workers for the windmill unlashing work. ( Dietenhofer Dep., 16:21-17:16,

Page 1105

44:2-17, 57:11-58:15). Although Dietenhofer disagreed with Miller's interpretation of the Labor Contract, he agreed to settle Local 29's grievances by making lost-work-opportunity payments to longshore workers. ( Id., 60:25-62:8)

Following his discussion with the area arbitrator, Dietenhofer notified SSA Marine's Vice President for Marketing and Sales, William Fitz, that while " cargo was under our control at the terminal" SSA Marine was required to " perform stripping of H-frames from [the] towers." ( Fitz Dep., 26:1-19.[14]) Dietenhofer informed Fitz that " this work and this activity was under the jurisdiction of the longshoremen and that our contract required that we perform that activity." ( Id., 27:1-5.) Fitz later notified SSA Marine's windmill customers about the change, and explained that it was needed in order for SSA Marine to comply with " our labor contract." ( Id., 29:3-7, 34:3-6.)

E. Terminalift files this lawsuit.

In July 2011, Terminalift filed this lawsuit claiming that it lost the windmill unlashing work because of an antitrust conspiracy, combination or agreement between Local 29 and PMA member companies. After this Court dismissed the First Amended Complaint with leave to amend, Terminalift filed the Second Amended Complaint (" SAC" ), which added claims related to the America's Cup Race.

Specifically, Terminalift claims that Local 29 entered into a conspiracy, combination or agreement with the Port to prevent Terminalift from performing work for the America's Cup Yacht Race that was held in San Diego in November 2011. ( SAC, ¶ 26.) According to Terminalift, beginning in September 2011, the Port held meetings to discuss the logistical plan to hold the race. ( Id. ) As a result of the meetings, on October 13, 2011, America's Cup representatives were notified during a meeting with the Port and Local 29 that they were barred from considering Terminalift for cargo loadout and relaod, and were to only use union labor for the cargo and stevedoring services. ( Id. )

Local 29 filed a motion to dismiss certain antitrust claims from the SAC. On May 17, 2013, this Court granted Local 29's motion and dismissed (1) Terminalift's first claim for relief for violation of section 2 of the Sherman Act; (2) Terminalift's first claim for relief for violation of section 1 of the Sherman Act to the extent it is based on the April 12, 2011 picketing and loss of windmill customers; and (3) Terminalift's third claim for relief in its entirety. ( See MTD Order [Doc. 60], 11:2-16.) Local 29 now seeks summary adjudication of the remaining antitrust claims, and state-law claims.

II. Standard

Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if " the evidence is such that a reasonable jury could return a

Page 1106

verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. " Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

" The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated " to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)).

If the moving party meets its initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating " that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) (" The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient." ). Rather, the nonmoving party must " go beyond the pleadings and by her own affidavits, or by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. " Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he ...

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