By Don McIntosh
In a decision that threatens the survival of the International Longshore and Warehouse Union (ILWU), a federal jury Nov. 4 held the union responsible for economic harm caused by a sustained and intentional dockworker slowdown at Port of Portland Terminal 6, and recommended that the national union and Portland-based Local 8 be ordered to pay $93.6 million to ICTSI, the Philippine-owned company that formerly operated the terminal.
The jury held Local 8 responsible for $42 million of the damages (45%). Local 8’s assets total $151,000. The ILWU international, with assets totaling $8 million, is responsible for the remaining $51 million.
It’s not clear how the jury-recommended damages could be collected, or whether they’ll stick. U.S. District Judge Michael H. Simon could modify the amount down or up, and has agreed to delay a final decision on the amount until he hears more from ILWU lawyers, who argued the amount is excessive and could bankrupt the union. The union could also seek a new trial or appeal the judgment.
The judgment comes from a lawsuit filed by ICTSI, but the facts of the case came from a series of unfair labor practice cases prosecuted by the National Labor Relations Board (NLRB) dating back to 2012. As outlined in the trial record in those cases, ILWU went to war with ICTSI over what amounted to two jobs plugging in refrigerated containers. Those jobs had been performed by members of IBEW Local 48 since 1974, but ILWU said its members were entitled to do the work under its industry-wide agreement with West Coast shippers like ICTSI. Terminal 6 used to be run directly by the publicly-owned Port of Portland, but was rented out to ICTSI in 2010 under a 25-year lease.
To pressure ICTSI, ILWU Local 8 members began a concerted slowdown at Terminal 6 in June 2012, operating cranes at two-thirds the usual pace, refusing to move two 20-foot containers at a time on older trailers, driving trucks at 5 mph instead of the usual 15, and taking long routes around the yard.
Unfortunately for the ILWU, the refrigerator workers were formally Port employees, so the NLRB declared the slowdown illegal under the anti-union 1947 Taft-Hartley law, which bars workplace action over jurisdictional issues, and says unions can only take action against the employer in a dispute (ICTSI), not another employer (the Port).
On June 6, 2012, ICTSI filed charges against ILWU with the NLRB. Twelve days later, the NLRB asked Judge Simon for an injunction, which he granted on July 20, 2012, ordering the union to halt the slowdown. But the slowdown continued to at least Aug. 13, 2013, and beyond. Simon found the union in contempt of his court order.
In December 2013, then-Oregon Governor John Kitzhaber brokered a deal giving the refrigerator work to the ILWU. But ICTSI said the slowdown continued. The terminal’s two largest customers, Hanjin Shipping and Hapag Lloyd America, halted shipping to Terminal 6 in 2015. ICTSI itself pulled out of Terminal 6 in March 2017, paying $11.45 million to the Port to terminate its lease.
ICTSI won the award from ILWU thanks to a rarely used section of labor law that lets employers sue for damages in federal court if they’ve been injured by a union’s unfair labor practice.