Free Confirm Arbitration Award - District Court of California - California

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BRENDAN DOLAN, State Bar No. 126732 MORGAN, LEWIS & BOCKIUS LLP One Market Street San Francisco, CA 94105 Tel: 415.442.1000 Fax: 415.442.1001 [email protected] CLIFFORD D. SETHNESS, State Bar No. 212975 JASON M. STEELE, State Bar No. 223189 MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: 213.612.2500 Fax: 213.612.2501 [email protected] [email protected] Attorneys for Plaintiff PACIFIC MARITIME ASSOCIATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PACIFIC MARITIME ASSOCIATION, a California corporation, Plaintiff, v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, an unincorporated labor organization, Defendant. Date: July 3, 2008 Time: 2:00 p.m. Courtroom: 2 PLAINTIFF PMA'S NOTICE OF MOTION AND MOTION FOR CONFIRMATION OF LABOR ARBITRATION AWARDS; MEMORANDUM OF POINTS AND AUTHORITIES [29 U.S.C. § 185] Case No. CV-08-2244 CW Hon. Claudia Wilken

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TO THE DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on July 3, 2008 at 2:00 p.m., or as soon thereafter as this motion may be heard in Courtroom 2 of this Court, located at 1301 Clay Street, Suite 400 S, Oakland, CA 94612, Plaintiff Pacific Maritime Association ("PMA") will and hereby does move for an order confirming the two awards issued on April 30, 2008 by Coast Arbitrator John Kagel pursuant to the collective bargaining agreement between PMA and Defendant International Longshore and Warehouse Union ("ILWU"). This motion is made on the grounds that the arbitration awards are final and binding interpretations of the parties' collective bargaining agreement and are entitled to confirmation pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The motion is based on this Notice of Motion, the Memorandum of Points and Authorities below, the Declaration of Richard Marzano, all documents filed in this action, and any further evidence and argument that may be presented at the hearing.

Dated: May 28, 2008

MORGAN, LEWIS & BOCKIUS LLP

By

/s/ Brendan Dolan Attorneys for Plaintiff PACIFIC MARITIME ASSOCIATION

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TABLE OF CONTENTS Page I. II. INTRODUCTION .............................................................................................................. 1 STATEMENT OF FACTS ................................................................................................. 2 A. The Parties............................................................................................................... 2 B. The Collective Bargaining Agreement.................................................................... 2 C. The ILWU Calls A Strike in Violation of the PCLCA ........................................... 3 D. The Coast Arbitrator's Awards ............................................................................... 5 E. The ILWU Goes on Strike, Shutting Down All 29 West Coast Ports .................... 6 THE COAST ARBITRATOR'S AWARDS ARE FINAL AND BINDING INTERPRETATIONS OF THE PCLCA AND SHOULD BE CONFIRMED BY THIS COURT ..................................................................................................................... 6 A. Confirming the Awards Furthers the Strong Federal Policy in Favor of Labor Arbitration .................................................................................................... 6 B. The Court Must Defer to the Arbitrator's Interpretation of the CBA ..................... 7 C. The ILWU's Constitutional Defenses Fail Under Well-Settled Law ..................... 8 1. The First Amendment Does Not Apply Because Judicial Enforcement of a Private Contract Does Not Constitute State Action.......................................................................................................... 9 2. The First and Thirteenth Amendments Do Not Bar Enforcement of Arbitration Awards Prohibiting a Union From Engaging in a Politically-Motivated Work Stoppage ...................................................... 10 CONCLUSION ................................................................................................................. 12

III.

IV.

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TABLE OF AUTHORITIES FEDERAL CASES Alexander v. U.S., 509 U.S. 544 (1993)............................................................................ 11 Barnes v. Logan, 122 F.3d 820 (9th Cir. 1997) ................................................................. 7 Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397 (1976).................... 6 Cable Investment, Inc. v. Woolley, 680 F.Supp. 174 (M.D. Pa. 1987) ............................... 9 Columbia Broad. System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) ............................................................................................................................ 9 Davis v. Prudential Securities, Inc., 59 F.3d 1186 (11th Cir. 1995)................................... 9

9 10 11 12 Jacksonville Bulk Terminals v. ILA, 457 U.S. 702 (1982)............................................ 6, 11 13 Millmen Local 550 v. Wells Exterior Trim, 828 F.2d 1373 (9th Cir. 1987) ...................... 6 14 15 16 17 18 19 20 21 22 Shelley v. Kramer, 334 U.S. 1 (1948) ................................................................................. 9 23 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) .................................... 8 24 25 26 27 United Egg Producers v. Standard Brands, Inc., 44 F.3d 940 (11th Cir. 1995) ................ 9 28 M ORGAN , L EWIS &
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International Longshoremen's Association v. Allied International, Inc., 456 U.S. 212 (1982) ................................................................................................................... 11 International Olympic Committee v. San Francisco Arts & Athletics, 781 F.2d 733 (9th Cir. 1986)............................................................................................................... 9

New Orleans Steamship Association v. Gen'l Longshore Workers, 626 F.2d 455 (5th Cir. 1980)................................................................................................... 2, 10, 11 PMA v. ILWU, 304 F.Supp. 1315 (N.D. Cal. 1969) ...................................................... 1, 7 PMA v. ILWU, et al., 517 F.2d 1158 (9th Cir. 1975)...................................................... 1, 7 PMA v. ILWU Local 10, 1997 U.S.Dist. LEXIS 6017 (N.D. Cal. 1997)........................ 1, 7 Parks v. "Mr. Ford", 556 F.2d 131 (3d Cir. 1977) ............................................................ 9 Public Utilities Commission v. Pollak, 343 U.S. 451 (1952) ............................................. 9 San Francisco-Oakland Newspaper Guild v. Tribune Public Co., 407 F.2d 1327 (9th Cir. 1969)............................................................................................................... 8

Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, IAM, 886 F.2d 1200 (9th Cir. 1989)....................................................................................... 8 United Brotherhood of Carpenters and Joiners of America, Local No. 1780 v. Desert Palace, Inc., 94 F.3d 1308 (9th Cir. 1996)........................................................ 6

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United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574 (1960) ......... 6 United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) .............. 7, 8 DOCKETED CASES PMA v. ILWU, et al., No. C-06-6148.............................................................................. 1, 7 PMA v. ILWU, et al., No. C-07-4618.............................................................................. 1, 7 FEDERAL STATUTES

7 29 U.S.C. § 158(b) ............................................................................................................ 11 8 29 U.S.C. § 185 ............................................................................................................... 1, 6 9 U.S. Const., Amendment I .................................................................................................. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Pacific Maritime Association ("PMA") seeks routine judicial confirmation of two labor awards issued against Defendant International Longshore and Warehouse Union ("ILWU") pursuant to the parties' collective bargaining agreement.1 The Coast Arbitrator, the final authority under the contract's grievance-arbitration machinery, ruled that the ILWU's planned work stoppage on May 1, 2008 violated the contract's no-strike clause. The ILWU ignored the awards, bringing the waterfront industry to a standstill and causing significant harm to PMA's members. In confirming the Coast Arbitrator's awards, this Court will follow a long line of similar confirmations. In the past three decades, the Ninth Circuit and the Northern District of California repeatedly have confirmed the Coast Arbitrator's awards prohibiting the ILWU from striking in violation of the labor contract, including in PMA v. ILWU, et al., No. C-07-4618 (N.D. Cal. Jan. 8, 2008); PMA v. ILWU, et al., No. C-06-6148 (N.D. Cal. Mar. 30, 2007); PMA v. ILWU Local 10, 1997 U.S. Dist. LEXIS 6017 (N.D. Cal. May 1, 1997); PMA v. ILWU, et al., 517 F.2d 1158, 1163 (9th Cir. 1975); PMA v. ILWU, 304 F. Supp. 1315, 1318 (N.D. Cal. 1969), aff'd, 454 F.2d 262, 264 (9th Cir. 1971). This precedent is not surprising. Section 301 of the Labor Management Relations Act, the federal statute that animates the strong policy favoring arbitration of labor disputes, requires district courts to confirm any labor arbitration award that "draws its essence" from the contract. Under this highly deferential standard of review, the court may not second-guess the arbitrator's interpretation; instead, it must confirm an award that is even arguably based on the terms of the agreement. There is no doubt that the awards at issue here ­ issued after full evidentiary hearings by a nationally-respected arbitrator ­ are based squarely on the terms of the longshore contract and are therefore entitled to confirmation. To avoid being held to its no-strike promise, the ILWU will argue that confirmation
1

The awards, both issued on April 30, 2008, are attached as Exhibits D and E to the Declaration of Richard Marzano.

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somehow violates the First and Thirteenth Amendments to the Constitution. This is entirely meritless. The Coast Arbitrator's awards have nothing to do with the ILWU's political views; they simply prohibit the ILWU from striking in violation of the contract, whatever the motivation for the strike. Confirming those awards simply enforces the parties' bargain, as Section 301 requires; it does not prohibit speech or require involuntary servitude. Indeed, the courts have held unequivocally that the First and Thirteenth Amendments are not a basis for refusing to confirm an arbitrator's award that the union's work stoppage violates the collective bargaining agreement. See, New Orleans Steamship Ass'n v. Gen'l Longshore Workers, 626 F.2d 455 (5th Cir. 1980) (First and Thirteenth Amendments do not bar confirmation of labor arbitrator's award prohibiting union from politically-motivated work stoppage that violates CBA's no-strike clause). Accordingly, PMA respectfully requests that the Court grant its motion and confirm the Coast Arbitrator's awards in full. II. STATEMENT OF FACTS A. The Parties

PMA is a multi-employer association of shipping, stevedoring and terminal companies operating in ports along the West Coast. There are more than 80 PMA member company employers. PMA is the bargaining representative for its members, and handles their labor relations issues with respect to longshoremen and marine clerks. Defendant ILWU is the exclusive bargaining representative for all longshore workers and marine clerks employed by PMA's members in ports in California, Oregon, and Washington. (Declaration of Richard Marzano ("Marzano Dec."), ¶¶ 2-3.) B. The Collective Bargaining Agreement

The ILWU and PMA, on behalf of their respective members, entered into the Pacific Coast Longshore and Clerks Agreement 2002-2008, effective as of July 1, 2002 ("PCLCA"). The PCLCA covers longshore workers and marine clerks employed by PMA members. The PCLCA is, and at all times mentioned herein was, in full force and effect. (Marzano Dec., ¶ 4.) Section 11 of the PCLCA, entitled "NO STRIKES, LOCKOUTS AND WORK STOPPAGES," provides in part as follows: 2
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"11.1 There shall be no strike, lockout or work stoppage for the life of this Agreement." "11.2 The Union or the Employers, as the case may be, shall be required to secure observance of this Agreement." "11.43 Application of Contract Grievance Machinery." "11.431 The grievance machinery, pending investigation and adjudication of on the job disputes, requires that work shall be performed in accordance with specific provisions of the Agreement, or if the matter is not covered by the Agreement, work shall be continued as directed by the employer." (Marzano Dec., ¶ 4, Ex. A.) Section 17 of the PCLCA, entitled "JOINT LABOR RELATIONS COMMITTEES, ADMINISTRATION OF AGREEMENT AND GRIEVANCE PROCEDURES," provides a mandatory procedure for the presentation, adjustment and settlement of grievances, with binding arbitration as the final step, and states in part as follows: "17.15. The grievance procedure of this Agreement shall be the exclusive remedy with respect to any disputes arising between the Union or any person working under this Agreement or both, on the one hand, and the Association or any employer acting under this Agreement or both, on the other hand, and no other remedies shall be utilized by any person with respect to any dispute involving this Agreement until the grievance procedure has been exhausted." "17.16. Pending investigation and adjudication of such disputes work shall continue and be performed as provided in Section 11." "17.24. In the event that the Employer and Union members of any Joint Port Labor Relations Committee shall fail to agree upon any question before it, such question shall immediately be referred at the request of either party to the Area Arbitrator for hearing and decision, and the decision of the Area Arbitrator shall be final and conclusive except as otherwise provided in Section 17.26 [relating to appeals]. "17.57. All decisions of Arbitrators shall be observed and/or implemented. No decision of an Area Arbitrator, interim or final, can be appealed unless it is observed and/or implemented." The ILWU, its officers and members, and all persons working under the PCLCA, are under a duty to abide by the above-mentioned no strike and grievance and arbitration provisions of the PCLCA. (Marzano Dec., ¶ 4, Ex. A.) C. The ILWU Calls A Strike in Violation of the PCLCA

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workers, clerks and foremen that governs the Longshore Division of the ILWU ­ held a two-week conference in San Francisco, California, at which delegates voted "to support a resolution calling for an eight-hour `stop-work' meeting during the day-shift on Thursday, May 1 at ports in CA, OR and WA to protest the war by calling for the immediate, safe return of U.S. troops from Iraq." (Marzano Dec., ¶ 5.) According to the resolution, posted by Robert McEllrath, International President of the ILWU, on a website for the planned work stoppage, www.uslaboragainstwar.org, "it is time to take labor's protest to a more powerful level of struggle by calling on unions and working people in the U. S. and internationally to mobilize for a `No Peace No Work Holiday' May 1, 2008 for 8 hours to demand an immediate end to the war and occupation in Iraq and Afghanistan and the withdrawal of U. S. troops from the Middle East ...." (Marzano Dec., ¶ 6.) The work stoppage was widely publicized. The ILWU informed PMA of its intent to proceed with the action, published an announcement on its website and in its monthly newsletter to members, and Mr. McEllrath personally sent letters to the AFL-CIO, the Change to Win Coalition, and other labor organizations seeking their support. As Mr. McEllrath stated, "[t]he Caucus has spoken on this important issue and I've notified the employers about our plans for `stop work' meetings on May 1." (Marzano Dec., ¶ 7.) The ILWU attempted to characterize the planned work stoppage as a monthly stop-work meeting permitted under the PCLCA. Section 12.3 of the PCLCA provides for monthly stopwork meetings only during overtime hours on the second shift. Any stop-work meeting at any other time requires PMA approval. (Marzano Dec., ¶ 8.) After a series of letters and verbal communications between Mr. McEllrath and James McKenna, President and CEO of PMA, the ILWU eventually agreed not to hold a stop-work meeting on May 1. But the ILWU refused to guarantee that there would be no work stoppage on May 1 or to take specific steps to notify its membership to report for duty as normal on that day. (Marzano Dec., ¶¶ 9-14, Ex. B.) Instead, the ILWU continued to encourage the work stoppage. The April 2008 edition of The Dispatcher, the ILWU's official newspaper, included an article entitled "Stop work meetings on May 1 will focus on Iraq war." (Marzano Dec., ¶ 13, Ex. C.) 4
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D.

The Coast Arbitrator's Awards

On April 23, 2008, PMA submitted this dispute to Coast Arbitrator John Kagel, the final step in the PCLCA's arbitration process. The Coast Arbitrator held a hearing at 9 a.m. on April 24, 2008, in which he received evidence and arguments from both PMA and the ILWU. The Coast Arbitrator ruled in PMA's favor and ordered the ILWU to notify all of its members to report as normal on May 1, 2008. (Marzano Dec., ¶ 15.) Having received no confirmation that the ILWU had complied with the Coast Arbitrator's Award, PMA again raised the issue with the Coast Arbitrator on the morning of April 30, 2008. The Coast Arbitrator received evidence and argument from PMA and the ILWU and issued a written decision in PMA's favor. In his Award, the Coast Arbitrator incorporated by reference his April 24, 2008 award and concluded that "the Union's efforts to comply with the April 24, 2008 order fell short of the intent of the Agreements." The Coast Arbitrator's Award stated: 1. 2. The Union has not effectively complied with the April 24, 2008 ruling, in violation of Section 17.57. Any deliberate and/or concerted action of directing Longshoremen, Clerks and others that they are not to work, or that they are not working, on May 1, 2008 is a violation of Sections 11.1, and 11.2 of the PCLCD and PCCCD. There shall be no unilateral concerted job action or illegal work stoppage in violation of the Agreement during the May 1, 2008 day shift. The Union shall take immediate and affirmative steps to notify its Locals and members of their contractual obligation and direct all members to report to work as they normally do during the day shift on May 1, 2008.

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3.

(Marzano Dec., ¶ 16, Ex. D.) The ILWU once again refused to comply with the award. Rather than direct its members to report for work as normal, the ILWU continued to encourage its members not to report to work on May 1. (Marzano Dec., ¶ 17.) On the afternoon of April 30, 2008, PMA again approached the Coast Arbitrator with fresh evidence of the ILWU's failure to comply with the awards. After a telephonic hearing in which both parties were represented, the Coast Arbitrator issued another decision in PMA's favor. In the award, the Coast Arbitrator found "evidence in the form of tape transcripts and documents 5
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which confirm concerted activity to not work on May 1, 2008 day shift. That evidence shows a violation of the award issued this morning, now called C-04-2008, and Sections 11.1 and 11.2 of the PCCCD and PCLCD." The Coast Arbitrator concluded that "[t]he Union, its Officers and members are in violation of the orders of the Coast Arbitrator set forth in C-04-2008 which is incorporated herein by reference." (Marzano Dec., ¶ 18, Ex. E.) E. The ILWU Goes on Strike, Shutting Down All 29 West Coast Ports

As PMA and its members feared, on May 1, 2008, the ILWU and its locals carried through with their plans for a complete coastwise work stoppage, leaving dozens of vessels idle in the ports and causing significant harm to PMA's members. In a press release issued the same day, the ILWU's President, Mr. McEllrath, stated that the membership was "standing-down on the job and standing up for America." The press release also confirmed that the ILWU's strike was coastwide, involving all 25,000 longshore workers at all 29 West Coast ports. (Marzano Dec., ¶ 19, Ex. F.) III. THE COAST ARBITRATOR'S AWARDS ARE FINAL AND BINDING INTERPRETATIONS OF THE PCLCA AND SHOULD BE CONFIRMED BY THIS COURT A. Confirming the Awards Furthers the Strong Federal Policy in Favor of Labor Arbitration

Section 301 of the Labor Management Relations Act ("LMRA"), which gives the federal courts jurisdiction over "suits for violation of contracts between an employer and a labor organization," 29 U.S.C. § 185(a), reflects this nation's strong policy in favor of the arbitration of labor disputes. See, United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578 (1960); United Brotherhood of Carpenters and Joiners of America, Local No. 1780 v. Desert Palace, Inc., 94 F.3d 1308, 1312 (9th Cir. 1996). To effectuate this policy, on a motion under Section 301, the district court must either confirm or vacate the arbitrator's award. Millmen Local 550 v. Wells Exterior Trim, 828 F.2d 1373, 1375 (9th Cir. 1987). The Supreme Court has held specifically that Section 301 authorizes the federal courts to "enforce an arbitrator's decision that [a] strike violates the collective-bargaining agreement." Jacksonville Bulk Terminals v. ILA, 457 U.S. 702, 711 n. 10 (1982). See also, Buffalo Forge Co. 6
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v. United Steelworkers of America, 428 U.S. 397, 405 (1976) ("were the issue arbitrated and the strike found illegal, the relevant federal statutes as construed in our cases would permit an injunction to enforce the arbitral decision"); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960) (affirming district court's order "that defendant corporation must promptly abide by the valid, complete and binding decision and award made by the arbitrator"). Confirming the arbitrator's award is particularly familiar territory for the parties in this case. The Ninth Circuit and district courts routinely confirm and enforce awards by the Coast Arbitrator prohibiting the ILWU and its locals from striking in violation of the PCLCA. See, PMA v. ILWU, et al., No. C-07-4618 (N.D. Cal. Jan. 8, 2008) (confirming Coast Arbitrator's award barring ILWU from engaging in work stoppage in violation of PCLCA); PMA v. ILWU, et al., No. C-06-6148 (N.D. Cal. Mar. 30, 2007) (confirming Coast Arbitrator's award prohibiting union members from walking off job); PMA v. ILWU Local 10, 1997 U.S. Dist. LEXIS 6017 (N.D. Cal. May 1, 1997) (confirming Coast Arbitrator's award prohibiting strike); PMA v. ILWU, ILWU Local 19, 517 F.2d 1158, 1163 (9th Cir. 1975) (affirming confirmation of Coast Arbitrator's award barring work stoppage); PMA v. ILWU, 304 F. Supp. 1315, 1318 (N.D. Cal. 1969) (confirming Coast Arbitrator's award requiring ILWU to cease work stoppage), aff'd, 454 F.2d 262, 264 (9th Cir. 1971). PMA asks this Court to follow this well-worn path and confirm the Coast Arbitrator's awards in this case. B. The Court Must Defer to the Arbitrator's Interpretation of the CBA

There is a heavy presumption in favor of confirming a labor arbitrator's award under Section 301. The award should be confirmed as long as it "draws its essence from the collective bargaining agreement." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960). This is an extraordinarily deferential standard of review: "an award must be confirmed if the arbitrators even arguably construed or applied the contract and acted within the scope of their authority." Barnes v. Logan, 122 F.3d 820, 821 (9th Cir. 1997). In a confirmation action under Section 301, the court may not review the merits of the award or substitute its interpretation for that of the arbitrator. Enterprise Wheel & Car Corp., 7
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supra, 363 U.S. at 599 (holding that the courts "have no business overruling [the arbitrator] because their interpretation of the contract is different from the arbitrator's"). The Ninth Circuit has repeatedly affirmed this broad standard of judicial deference to a labor arbitrator's award: It is not the function of the courts to review the merits of arbitration awards. The interpretation of a collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction that was bargained for, and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him, because their interpretation of the contract is different than his. San Francisco-Oakland Newspaper Guild v. Tribune Pub. Co., 407 F.2d 1327, 1327 (9th Cir. 1969) (per curiam). "Deference is the rule; rare is the exception." Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, IAM, 886 F.2d 1200, 1209 (9th Cir. 1989). See also, Sprewell v. Golden State Warriors, 266 F.3d 979, 986 (9th Cir. 2001) ("Judicial scrutiny of an arbitrator's decision in a labor dispute is `extremely limited'"). "[A] mere ambiguity in the opinion accompanying an award" is not a basis for refusing to enforce the award. Enterprise Wheel & Car Corp., 363 U.S. at 598. Nor may confirmation be denied because the award lacks detailed factual findings or analysis, for "`arbitrators have no obligation ... to give their reasons for an award" at all." Stead Motors, 886 F.2d at 1203 (quoting Enterprise Wheel & Car Co., 363 U.S. at 598). The Coast Arbitrator's April 30, 2008 awards plainly "draw their essence" from the PCLCA. The Coast Arbitrator, John Kagel, is a well-respected national arbitrator. His awards were issued after full hearings in which both sides presented evidence and argument for their respective positions. The awards are based on the facts presented at the hearings and the express provisions of the PCLCA. They are entitled to full confirmation by this Court under LMRA § 301. C. The ILWU's Constitutional Defenses Fail Under Well-Settled Law

PMA anticipates that the ILWU will repeat a version of the argument it made in opposition to PMA's earlier application for a TRO ­ that enforcing the awards would violate the First and Thirteenth Amendments to the Constitution. Not so. As the courts have held in these very circumstances, a union may not use the Constitution as a smokescreen to break its promise 8
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not to strike in violation of a collective bargaining agreement. 1. The First Amendment Does Not Apply Because Judicial Enforcement of a Private Contract Does Not Constitute State Action

The First Amendment states that "Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const., Amendment I. This "is a restraint on government action, not that of private persons." Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 114 (1973) (quoting Public Utilities Comm'n v. Pollak, 343 U.S. 451 (1952)). Thus, judicial enforcement of private contracts, such as collective bargaining agreements, does not constitute state action. See, United Egg Producers v. Standard Brands, Inc., 44 F.3d 940, 942-43 (11th Cir. 1995) (where "parties in positions of equal bargaining power agree ... to restrain, in a limited degree, their First Amendment rights ... we hold that court enforcement of that agreement is not government action for First Amendment purposes"); Cable Inv., Inc. v. Woolley, 680 F. Supp. 174, 178 (M.D. Pa. 1987) ("where state courts take action to enforce the right of private persons which are permitted but not compelled by law, there is no state action for constitutional purposes"). Indeed, "if ... every private right were transformed into government action by the mere fact of court enforcement of it, the distinction between private and governmental action would be obliterated." United Egg Producers, supra, 44 F.3d at 943. Seeking to obliterate that distinction completely, the ILWU relied on Shelley v. Kramer, 334 U.S. 1 (1948), in which the Supreme Court held that enforcement of a racially restrictive covenant could constitute state action under the Fourteenth Amendment. Shelley, however, is a narrow exception to the well-established state action requirement. Indeed, the courts have expressly refused to expand Shelley beyond the racial discrimination context. See, Davis v. Prudential Secs., Inc., 59 F.3d 1186, 1191 (11th Cir. 1995) (rejecting argument that court enforcement of private contract constituted state action and explaining that "[t]he holding of Shelley ... has not been extended beyond the context of race discrimination"); Parks v. "Mr. Ford", 556 F.2d 131, 136 (3d Cir. 1977) (explaining that the Shelley doctrine "has been limited to cases involving racial discrimination"). See also, Int'l Olympic Comm. v. San Francisco Arts & 9
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Athletics, 781 F.2d 733, 737 (9th Cir. 1986) (rejecting argument under Shelley that judicial enforcement of rights constituted state action under Fifth Amendment). The ILWU's First Amendment argument must be rejected for this reason alone. 2. The First and Thirteenth Amendments Do Not Bar Enforcement of Arbitration Awards Prohibiting a Union From Engaging in a PoliticallyMotivated Work Stoppage

The ILWU's constitutional defenses fail fundamentally because the Coast Arbitrator's Awards do not limit speech or require any individual to perform personal services. The Coast Arbitrator merely concluded that the ILWU violated the PCLCA by facilitating a strike during the day shift on May 1, 2008. (Marzano Dec., Ex. D, E.) The awards had nothing to do with the content of the ILWU's speech or the political motivation for the strike. The courts have considered and rejected the very argument the ILWU advances here. In New Orleans Steamship Ass'n v. Gen'l Longshore Workers, 626 F.2d 455 (5th Cir. 1980), the President of the International Longshoremen's Association (the union representing longshore workers at ports on the Atlantic and Gulf Coasts) instructed the ILA's members to boycott all shipments to or from the Soviet Union. The ILA's work stoppage was "not motivated by any hope for economic gain or by any dispute with any employer members, but was purely a political protest." Id. at 459. When the next vessel arrived at a port in Louisiana to pick up corn bound for the Soviet Union, the longshore workers refused to load it. In response, the employers filed grievances under the three collective bargaining agreements governing ILA workers at that port, claiming that the work stoppage violated the contract's no-strike clause. After separate hearings, all three arbitrators found for the employers and ordered the ILA to cease and desist from the boycott. Id. at 459-60. The employers filed an action in federal court to confirm the awards under LMRA § 301, and the court enforced all three awards. The ILA appealed, arguing that its protest was purely political and therefore the district court's order violated the First and Thirteenth Amendments. Id. at 462. The Fifth Circuit squarely rejected the ILA's constitutional arguments. The court explained that, although the First Amendment is phrased in absolute terms, "the Congress may regulate labor relations affecting interstate commerce and the federal courts may implement 10
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congressional policy by enjoining action that obstructs it ...." Id. at 463. The court noted that "[t]he first amendment `does not protect behavior made unlawful by legitimate legislation or regulation, enacted for purposes unrelated to the suppression of free expression.'" Id. (citations omitted). Nor was the enforcement order an invalid "prior restraint" on speech: The argument that the injunction against the refusal to work ships is a "prior restraint" on speech does not withstand analysis. Neither President Gleason nor any other ILA officer or member is enjoined from speaking. They are enjoined simply from continuing a work stoppage .... Id.2 The ILA's Thirteenth Amendment argument also missed the mark:

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
2

The court's order prohibits only a concerted work stoppage, and cannot be construed as an edict requiring an individual to perform personal services. An employee remains free to quit his employment at any time. The argument that the district court injunction enforced a promise to render personal services has, therefore, been rejected on numerous occasions by the Supreme Court. Id. at 463. Accordingly, the court concluded, "neither the first nor the thirteenth amendment was violated by either injunction." Id. See also, Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's Ass'n, 457 U.S. 702, 711 n. 10 (1982) (noting that employer may obtain injunction enforcing arbitrator's award that politically-motivated work stoppage violates collective bargaining agreement). The Fifth Circuit's analysis applies with full force here. The Coast Arbitrator's awards simply require the ILWU to keep its promise not to strike. That the May Day work stoppage was politically motivated is irrelevant. Confirming these two awards will not prohibit the ILWU or its members from expressing their political views and it will not compel involuntary servitude. Accordingly, as in News Orleans Steamship Ass'n, there no constitutional bar to confirming the Coast Arbitrator's awards.3

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The ILWU's "prior restraint" argument also fails because the work stoppage is over. See, Alexander v. U.S., 509 U.S. 544, 550 (1993) (prior restraints are "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur") (emphasis added).

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IV.

CONCLUSION For all of the foregoing reasons, PMA respectfully requests that this Court confirm the

two Awards issued by the Coast Arbitrator on April 30, 2008.

Dated: May 28, 2008

MORGAN, LEWIS & BOCKIUS LLP

By

/s/ Brendan Dolan Attorneys for Plaintiff PACIFIC MARITIME ASSOCIATION

3

For the same reasons, the courts have held that the Constitution does not preclude injunctions against secondary boycott activity that violates the National Labor Relations Act, 29 U.S.C. § 158(b)(4). See, e.g., Jacksonville Bulk Terminals, supra, 457 U.S. at 718-19 (Congress gave National Labor Relations Board power to petition federal court for injunction prohibiting politically-motivated secondary boycott activity); Int'l Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 226 (1982) ("We have consistently rejected the claim that secondary picketing by labor unions in violation of § 8(b)(4) is protected activity under the First Amendment").

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BRENDAN DOLAN, State Bar No. 126732 MORGAN, LEWIS & BOCKIUS LLP One Market Street San Francisco, CA 94105 Tel: 415.442.1000 Fax: 415.442.1001 [email protected] CLIFFORD D. SETHNESS, State Bar No. 212975 JASON M. STEELE, State Bar No. 223189 MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: 213.612.2500 Fax: 213.612.2501 [email protected] [email protected] Attorneys for Plaintiff PACIFIC MARITIME ASSOCIATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PACIFIC MARITIME ASSOCIATION, a California corporation, Plaintiff, v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, an unincorporated labor organization, Defendant. DECLARATION OF RICHARD MARZANO IN SUPPORT OF PLAINTIFF PMA'S MOTION FOR CONFIRMATION OF LABOR ARBITRATION AWARDS Date: July 3, 2008 Time: 2:00 p.m. Courtroom: 2 Case No. CV-08-2244 CW Hon. Claudia Wilken

1-LA/994710.1

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DECLARATION OF RICHARD MARZANO I, Richard Marzano, declare as follows: 1. I am the Director of Contract Administration and Arbitration for the Pacific

Maritime Association ("PMA"), the plaintiff in this case. As the Director of Contract Administration and Arbitration, I oversee and coordinate several aspects of PMA's administration of the collective bargaining agreement with the International Longshore and Warehouse Union ("ILWU") and its various locals in ports along the West Coast. I have personal knowledge of the facts set forth in this declaration, and would testify competently as to those facts if called as a witness. 2. PMA is a multiemployer collective bargaining association whose members include

stevedoring, terminal, and shipping companies that employ dockworkers in ports throughout the United States Pacific Coast. PMA represents these employers in the negotiation, administration, and enforcement of collective bargaining agreements governing waterfront employment. 3. The ILWU is a labor organization with headquarters in San Francisco. The ILWU

is, and at all times mentioned herein was, the duly certified collective bargaining representative for dockworkers employed by members of PMA on the Pacific Coast. The ILWU negotiates and enters into collective bargaining agreements with PMA, covering terms and conditions of employment of dockworkers employed by PMA members on the Pacific Coast. 4. The ILWU and PMA, on behalf of their respective members, entered into the

Pacific Coast Longshore and Clerks Agreement 2002-2008, effective as of July 1, 2002 ("PCLCA"). The PCLCA covers longshore workers and marine clerks employed by PMA members. The PCLCA has been in full force and effect since 2002. True and correct copies of the relevant portions of the PCLCA are attached hereto as Exhibit A. 5. On January 28, 2008, the ILWU Longshore Caucus ­ a representative body of

longshore workers, clerks and foremen that governs the Longshore Division of the ILWU ­ held a two-week conference in San Francisco, California, at which delegates voted "to support a resolution calling for an eight-hour `stop-work' meeting during the day-shift on Thursday, May 1 at ports in CA, OR and WA to protest the war by calling for the immediate, safe return of U.S. 2
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troops from Iraq." 6. According to the resolution, posted by Robert McEllrath, International President of

the ILWU, on a website for the planned work stoppage, www.uslaboragainstwar.org, "it is time to take labor's protest to a more powerful level of struggle by calling on unions and working people in the U. S. and internationally to mobilize for a `No Peace No Work Holiday' May 1, 2008 for 8 hours to demand an immediate end to the war and occupation in Iraq and Afghanistan and the withdrawal of U. S. troops from the Middle East ...." 7. The work stoppage was widely publicized. The ILWU informed PMA of its intent

to proceed with the action, published an announcement on its website and in its monthly newsletter to members, and Mr. McEllrath personally sent letters to the AFL-CIO, the Change to Win Coalition, and other labor organizations seeking their support. Mr. McEllrath stated that "[t]he Caucus has spoken on this important issue and I've notified the employers about our plans for `stop work' meetings on May 1." 8. The ILWU initially attempted to characterize the planned work stoppage as a

monthly "stop-work" meeting permitted under the PCLCA. Section 12.3 of the PCLCA provides for monthly stop-work meetings only during overtime hours on the second shift. Any stop-work meeting at any other time requires PMA approval. 9. In March and April, James McKenna, President and CEO of PMA, and Mr.

McEllrath exchanged several written communications regarding the planned stop-work meeting on May 1. True and correct copies of these communications are attached hereto as Exhibit B. 10. On March 17, 2008, James McKenna, President and CEO of PMA, sent Mr.

McEllrath a letter stating that the Employers would not agree to a May 1 stop-work meeting, and considered any such job action to be in direct violation of the contracts. Mr. McKenna requested that the ILWU confirm by March 26, 2008 that the May 1 stop-work meeting would not occur. The ILWU did not respond to PMA's letter. 11. Thereafter, at a meeting on or about March 31, 2008, Mr. McEllrath orally

indicated to Mr. McKenna that there would be no stop-work meeting on May 1, but did not state that no other work stoppages would occur. After the meeting, Mr. McKenna sent Mr. McEllrath 3
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another letter, stating that PMA would not consent to a work stoppage or any other action aimed at disrupting port operations. 12. Mr. McKenna again asked the ILWU to confirm by April 9, 2008, in writing, that

the ILWU would not engage in any May 1 work stoppage. Mr. McKenna also requested that Mr. McEllrath remove the aforementioned postings and letters from the ILWU website and take steps to ensure that all ILWU members would report to work on May 1 and perform their duties as expected. 13. The ILWU responded on April 8, 2008 by letter from Mr. McEllrath to Mr.

McKenna. Mr. McEllrath stated that no ILWU local union would move its regularly scheduled May stop-work meeting to the day shift on May 1, but explicitly declined to communicate to the ILWU membership that there will be no stop-work meeting or other job action on May 1. Instead, the ILWU in its April 2008 Dispatcher newsletter featured an article entitled "Stop work meetings on May 1 will focus on Iraq war." A true and correct copy of these portions of the Dispatcher are attached hereto as Exhibit C. 14. Mr. McKenna responded with another request that the ILWU take the affirmative

steps outlined in his April 9 letter. The ILWU again refused, with Mr. McEllrath stating in a letter that "the Longshore Division Caucus recently approved a resolution calling for a May 1 protest against the Iraq war. Consequently, members from various locals will participate in planned events on May 1." (emphasis added.) Mr. McEllrath went on to explain that manpower may be limited on May 1. 15. On April 23, 2008, PMA submitted this dispute to Coast Arbitrator John Kagel,

the final step in the PCLCA's arbitration process. The Coast Arbitrator held a hearing at 9 a.m. on April 24, 2008, in which he received evidence and arguments from both PMA and the ILWU. The Coast Arbitrator ruled in PMA's favor and ordered the ILWU to notify all of its members to report as normal on May 1, 2008. 16. Having receiving no confirmation that the ILWU had complied with the Coast

Arbitrator's Award, PMA again raised the issue with the Coast Arbitrator on the morning of April 30, 2008. The Coast Arbitrator received evidence and argument from PMA and the ILWU and 4
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issued a written decision in PMA's favor, a true and correct copy of which is attached hereto as Exhibit D. In his Award, the Coast Arbitrator incorporated by reference his April 24, 2008 award and concluded that "the Union's efforts to comply with the April 24, 2008 order fell short of the intent of the Agreements." The Coast Arbitrator's Award stated: 1. 2. The Union has not effectively complied with the April 24, 2008 ruling, in violation of Section 17.57. Any deliberate and/or concerted action of directing Longshoremen, Clerks and others that they are not to work, or that they are not working, on May 1, 2008 is a violation of Sections 11.1, and 11.2 of the PCLCD and PCCCD. There shall be no unilateral concerted job action or illegal work stoppage in violation of the Agreement during the May 1, 2008 day shift. The Union shall take immediate and affirmative steps to notify its Locals and members of their contractual obligation and direct all members to report to work as they normally do during the day shift on May 1, 2008. The ILWU once again refused to comply with the award. Rather than direct its

3. 4.

17.

members to report for work as normal, the ILWU and its locals continued to inform its members that there would be a work stoppage on May 1. 18. On the afternoon of April 30, 2008, PMA again approached the Coast Arbitrator

with fresh evidence of the ILWU's failure to comply with the awards. After a telephonic hearing in which both PMA and the ILWU were represented, the Coast Arbitrator issued another decision in PMA's favor, a true and correct copy of which is attached hereto as Exhibit E. In the award, the Coast Arbitrator found "evidence in the form of tape transcripts and documents which confirm concerted activity to not work on May 1, 2008 day shift. That evidence shows a violation of the award issued this morning, now called C-04-2008, and Sections 11.1 and 11.2 of the [PCLCA]." The Coast Arbitrator concluded that "[t]he Union, its Officers and members are in violation of the orders of the Coast Arbitrator set forth in C-04-2008 which is incorporated herein by reference." 19. As PMA and its members feared, on May 1, 2008, the ILWU and its locals carried

through with their plans for a complete coastwise work stoppage, leaving dozens of vessels idle in the ports and causing significant economic harm to PMA's members. The ILWU issued a press 5
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Exhibit A

July 1, 2002 ­ July 1, 2008
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION and PACIFIC MARITIME ASSOCIATION Between

PACIFIC COAST LONGSHORE CONTRACT DOCUMENT

Name _____________________________ Port ______________________________ Local No. ____ Reg. No. _____________

NO STRIKES, LOCKOUTS, AND WORK STOPPAGES

SECTION 11

SECTION 11

SECTION 11
11.1 There shall be no strike, lockout or work stoppage for the life of this Agreement. 11.2 The Union or the Employers, as the case may be, shall be required to secure observance of this Agreement. 11.3 How work shall be carried on. 11.31 In the event grievances or disputes arise on the job, all men and gangs shall continue to work as directed by the employer in accordance with the specific provisions of the Agreement or if the matter is not covered by the Agreement, work shall be continued as directed by the employer. 11.4 Exceptions and Procedures for Health and Safety and Onerous Workload. 11.41 Health and safety exception. Longshoremen shall not be required to work when in good faith they believe that to do so is to immediately endanger health and safety. Only in cases of bona fide health and safety issues may a standby be justified. The Union pledges in good faith that health and safety will not be used as a gimmick. The employer shall have the option of having the men who raise a question of health and safety stand by until a decision is reached or "working around" the situation until it can be resolved, and no further work shall be performed on that disputed operation until the health and safety issue is resolved. 11.42 Onerous workload exception. Longshoremen on cargo handling operations shall not be required to work when in good faith they believe that to do so will result in an onerous workload. The Union pledges in good faith that the onerous workload claim will not be used as a gimmick. The employer
62

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shall have the option of having the men claiming onerousness stand by until a decision is reached or "working around" the situation until it can be resolved. 11.421 When a man is directed to take his own relief without a man being assigned to relieve him, this does not automatically present a question of onerousness of work or individual speedup for the men remaining on the job, regardless of the basic gang structure involved. A change in operations or manning to remove unnecessary men, or the handling of larger loads does not, in and of itself, automatically present any question of onerousness of work or individual speedup. 11.422 The procedure provided in Section 11.42 shall not apply on operations where the Association and the Union have agreed to changed operations or reduced manning under Sections 10.3 and 10.5. If claims of onerousness are presented in such cases, they shall be referred to the Joint Coast Labor Relations Committee. 11.4221 The foregoing Section 11.422 is intended to mean that agreements reached on changed operations or reduced manning in accordance with the Contract procedures shall not be challenged as being onerous operations if no further change has been made following such agreement. In other words, claims of onerousness shall not be used to challenge agreed manning if the operation is unchanged in all respects. Any such challenges shall be referred to the Joint Coast Labor Relations Committee. 11.43 General Procedures for Health and Safety and Onerous Disputes. 11.431 The men must ask their steward to bring the question of health, safety or onerousness to the attention of the foreman or walking boss in immediate charge of the operation. The steward and his immediate superior (gang boss, hatch
63

NO STRIKES, LOCKOUTS, AND WORK STOPPAGES

NO STRIKES, LOCKOUTS, AND WORK STOPPAGES

SECTION 11

SECTION 11

boss, etc.) are the only individuals who shall present the situation to the foreman or walking boss.

11.432 If agreement cannot be reached in Section 11.431 the Business Agent shall be called. (The walking boss, gang boss or hatch boss and the Business Agent or steward, who are responsible and safety-minded individuals should be able to determine whether a condition is safe or unsafe.)

11.433 If agreement cannot be reached in Section 11.432, an immediate Joint Port Labor Relations Committee meeting shall be called on the job. 11.434 If agreement cannot be reached in Section 11.433, the Area Arbitrator shall be called to the job for an immediate ruling. 11.44 Health and Safety Procedure.

11.441 The Area Arbitrator shall make an immediate ruling as to how work shall proceed. After the work proceeds the Arbitrator shall make a further ruling that a bona fide health or safety issue did or did not exist. 11.442 Where the Arbitrator decides or where agreement is reached in any one of the steps under Section 11.43 that the employers were correct, the men shall not be paid for standby time, if involved.

11.444 If the Arbitrator decides or it is agreed at any step under Section 11.43 that an unsafe condition exists which can be corrected, the men shall work as directed to correct such condition.
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11.443 Where the Arbitrator decides or where agreement is reached in any one of the steps under Section 11.43 that the men were correct, the men shall be paid for standby time, if involved.

11.445 If it is determined at any step under Section 11.43 that the condition claimed to be unsafe is in fact safe, the men shall resume work as directed and failure to resume work as directed shall be cause to remove the men from the payroll as of the time of standby. 11.446 If during a period of standby on an issue of health and safety any man leaves his place of work except upon instructions of the walking boss, he shall be removed from the payroll as of the time of standby regardless of how the issue is settled. Any man who so leaves without obtaining his own replacement shall be automatically subject to appropriate penalties under the grievance machinery. 11.45 Onerous Work Load Procedure. 11.451 The Area Arbitrator shall make an immediate ruling as to whether the original direction of the employer did or did not impose an onerous workload. 11.452 After the employer has directed the men as to how work shall proceed on the basis of the Arbitrator's ruling and the work proceeds in accordance with the direction of the employer, the Arbitrator shall make a further ruling that a bona fide question of onerousness of the workload did or did not exist. 11.453 Where the Arbitrator decides or where agreement is reached in any one of the steps under Section 11.43 that to work in accordance with the employer's original direction did not impose an onerous workload and the employer exercised his option to have the men claiming onerousness stand by until a decision is reached, the men shall not be paid for standby time and may be required to work beyond the time the shift otherwise would end to make up the time the men stood by. 11.4531 Such makeup time shall not exceed 2 hours, and the work will be performed at the rate applicable.
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NO STRIKES, LOCKOUTS, AND WORK STOPPAGES

SECTION 11

SECTION 11

The first 8 hours of time paid for, including "makeup" time on the standard first and second shift and the first 5 hours of time paid for, including "makeup" time on the third shift shall be paid at the appropriate shift rates. If work goes beyond the standard shifts as set forth in Section 2.4 in order to complete as much as possible of a regular or extended shift, such work shall be paid at the appropriate shift overtime rate. When "makeup" time is worked, and the work goes beyond 5 hours without a meal period, the employees involved shall have the option of going to a meal on their own time and returning to complete the "makeup" time, or of finishing the "makeup" time without going to a meal. 11.454 Where the Arbitrator decides or where agreement is reached in any one of the steps under Section 11.43 that the original direction of the employer as to how work should proceed did impose an onerous workload and the employer exercised his option to have the men stand by until a decision is reached, the men shall be paid for standby time.

11.455 If the Arbitrator decides or it is agreed at any one of the steps under Section 11.43 that the original direction of the employer does not impose an onerous workload and if the men are directed to resume work as originally directed, any failure to resume work as directed shall be the cause to remove the men from the payroll as of the time the men were directed by the employer to stand by if the employer had not directed them to "work around" the situation, or as of the time the men fail to resume work as directed. 11.456 If during a period of standby on an onerous issue any man leaves his place of work except upon instructions of the walking boss, he shall be removed from the payroll as of the time of standby regardless of how the issue is settled. Any man who so leaves without obtaining his own replacement
66

shall be automatically subject to appropriate penalties under the grievance machinery. 11.46 Application of Contract Grievance Machinery. 11.461 The grievance machinery, pending investigation and adjudication of on the job disputes, requires that work shall be performed in accordance with specific provisions of the Agreement, or if the matter is not covered by the Agreement, work shall be continued as directed by the employer. Exceptions to this arise only where longshoremen in good faith believe that to do so is to immediately endanger health and safety or in good faith believe that to do so imposes an onerous workload. 11.462 The preceding procedures apply specifically to issues initially presented as being a dispute under health or safety or a dispute as to onerousness. On all other issues, the authority of the walking boss or foreman to remove men from the payroll for cause is not disturbed. 11.463 Should the Arbitrator rule that the issue of health or safety or onerousness was raised as a gimmick, the Employers may process the matter through the grievance procedure for appropriate penalties. 11.464 The contract machinery is the same in all disputes. The preceding procedures covering disputes on health and safety and onerousness are not intended to modify the basic grievance machinery structure. 11.5 Picket Lines. (See Addenda, Picket Line Language.) 11.51 Refusal to cross a legitimate and bona fide picket line, as defined in this paragraph, shall not be deemed a violation of this Agreement. Such a picket line is one established and maintained by a union, acting independently of the ILWU longshore locals, about the premises of an employer with whom it is engaged in a bona fide dispute over wages, hours or
67

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working conditions of employees, a majority of whom it represents as the collective bargaining agency. Collusive picket lines, jurisdictional picket lines, hot cargo picket lines, secondary boycott picket lines and demonstration picket lines are not legitimate and bona fide picket lines within the meaning of this Agreement. 11.52 If an ILWU longshore local located within the confines of the United States whose members are not covered by this Agreement is engaged in a legitimate, bona fide, nonjurisdictional and noncollusive strike concerning wages, hours or working conditions of its members, no longshoreman under this Agreement shall be required to perform work hereunder respecting cargo that normally, without such strike, would be handled by members of such ILWU longshore local but which has been handled or is destined to be handled by other workers engaged in strikebreaking activities under established and legitimate trade union principles.

MEETINGS FOR REGISTERED LONGSHOREMEN

SECTION 12

SECTION 13

NO DISCRIMINATION

SECTION 12
12.1 In addition to other qualifications specifically set forth in this Contract Document, all registered longshoremen in order to remain qualified and eligible for dispatch through the dispatching hall must be familiar with all the provisions of the Agreement, including all working, dispatching and safety rules and the requirements of conformance and performance under the Agreement. 12.2 To this end it shall be the duty of the Union to inform all registered Union longshoremen of their collective and individual responsibilities under the Agreement. Similarly, it shall be the duty of the Joint Port Labor Relations Committee to inform
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MEETINGS FOR REGISTERED LONGSHOREMEN

all registered nonunion longshoremen of such responsibilities. Meetings for such purposes shall be scheduled by mutual consent of the Joint Port Labor Relations Committee. 12.3 Stop-Work Meetings. 12.31 Each local shall have the right to hold 1 regularly scheduled stop-work meeting each month during overtime hours on the second shift. (See Addenda, Scheduling of Meetings.) 12.311 In a port where such regularly scheduled stopwork meetings are held, the scheduled date during the month shall be the same for the longshore local and the clerks' local. 12.32 Any other stop-work meetings must be mutually agreed to by PMAand the Union and PMAshall receive at least 1 week's notice of such nonscheduled meetings. They shall not occur more often than once a month. 12.4 Any registered longshoreman refusing to attend such respective meetings or creating a disturbance which frustrates the purpose of the same shall be suspended or dropped from the registered list at the discretion of the Joint Port Labor Relations Committee.

SECTION 13
13.1 There shall be no discrimination in connection with any action subject to the terms of this Agreement (including at work sites, joint dispatch halls, training sites, and other locations, when reasonably related to employment covered by this Agreement) either in favor of or against any person because of membership or nonmembership in the Union, activity for or against the Union or absence thereof, race, creed, color, sex (including gender, pregnancy, sexual orientation), age (forty or over), national origin, religious or political beliefs, disability,
69

NO DISCRIMINATION

JOINT LABOR RELATIONS COMMITTEES, ADMINISTRATION OF AGREEMENT, AND GRIEVANCE PROCEDURES

SECTION 17

SECTION 17

conditions and practices of the men on the job. It is further intended that this program will produce mutually practical and effective recommendations regarding corrections of accidentproducing circumstances and conditions.

SECTION 17
JOINT LABOR RELAT