Sanction Was Too Harsh, Union Tells 9th Circuit

SEATTLE (CN) - Longshoremen found in contempt for continuing a labor dispute urged the 9th Circuit to reduce a federal judge's order of $250,000 in sanctions.

EGT Development exports grain from a terminal at the Port of Longview, Wash., and employs workers with International Longshore and Warehouse Union, Local 21.

The longshoreman objected in July 2011 when EGT assigned production and maintenance work at its facility to workers from then Operating Engineers 18 International Union, Local 701.

Local 21 partnered with Local 4 to protest this contract by blocking access to the facility, threatening the facility's employees and destroying the company's property, according to court documents.

In one incident, someone drove an aircraft over the terminal's administration building and dropped a trash bag filled with manure attached with signs that said "scabby 701."

EGT filed charges with the National Labor Relations Board (NLRB) for unfair labor practices, and the board petitioned the U.S. District Court for the Western District of Washington for relief against the two locals.

U.S. District Judge Ronald Leighton granted a temporary restraining order on Sept. 1, 2011, and approved a preliminary injunction Sept. 8, barring the longshoremen from blocking the entrance to the grain terminal and engaging in picket line violence, threats and property damage.

When the union ignored those orders, Leighton held them in contempt and ordered them to pay $250,000 in compensatory damages to EGT, BNSF Railway, local law enforcement agencies and the NLRB.

Arguing before a three-judge panel last week, the longshoremen did not challenge the contempt finding, but said there was no evidence that the contempt conduct caused actual damages.

Emily Maglio, representing the union, called the damages an "extraordinary remedy." She said the lower court failed to look at all the evidence before awarding the money.

EGT submitted some receipts that pre-dated the dispute, and some of its other claims for reimbursement amounted to "inadmissible hearsay," Maglio said.

Judge Consuelo Callahan disagreed, and said the parties submitted "very specific numbers," including dollars and cents, that showed actual damages.

Maglio countered that the NLRB's remedial power does not extend to covering losses for an employer's damaged property. She said the employer must rely on state tort claims to recover damages. She said the NLRB can give damages only to a charging party, whereas EGT had "amicus status."

The damages also included attorneys' fees for the NLRB, which is contrary to the law, Maglio said.

The panel seemed sympathetic to the longshoremen's claim that local law enforcement should not be reimbursed for time spent enforcing the restraining order.

"It's like charging a murder victim's family for the investigation," Callahan said. "It's the police's job."

NLRB attorney Kayce Compton replied that the police took officers off their regular beats to respond to the demonstrations. She said the NLRB wants to "compensate parties directly harmed."

"Damages are routinely awarded to third parties," Compton said.

Callahan and Judge Raner Collins both questioned Compton on the legality of the award.

"There isn't a case that says these types of damages are strictly allowable," Callahan said.

When Compton replied that they were "not asking anything more than the damages they suffered," Callahan asked whether this is "the way you collect them."

Collins wanted to know why EGT and the other harmed parties did not file a civil suit to recover damages.

Compton argued that the evidence for compensatory damages was sufficient "under any standards."

"The District Court gave the unions several chances to get themselves into line," she added.

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