International Longshore and Warehouse Union; Pacific Maritime Association, Plaintiffs-Counter-Claim-Defendants-Appellees,
ICTSI Oregon, Inc., an Oregon corporation, Defendant-Counter-Claimant-Plaintiff-Appellant.
and Submitted October 7, 2016 Portland, Oregon
from the United States District Court for the District of
Oregon Michael H. Simon, District Judge, PresidingD.C. No.
M. Triplett (argued), Michael T. Garone, and Kelly T. Hagan,
Schwabe Williamson & Wyatt P.C., Portland, Oregon, for
F. Wick (argued), Cozen O'Connor, Washington, D.C.;
Eleanor J. Morton (argued) Emily M. Maglio, and Robert S.
Remar, Leonard Carder LLP, San Francisco, California; for
Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and
Jacqueline H. Nguyen, Circuit Judges.
panel affirmed the district court's dismissal of an
antitrust claim alleging anticompetitive activities engaged
in jointly by a labor union and a multi-employer collective
panel held that the district court did not err in entering
partial final judgment under Federal Rule of Civil Procedure
54(b) on an antitrust counterclaim in an action brought under
§ 301 of the Labor Management Relations Act. The panel
affirmed the district court's conclusion that the
antitrust issues were discrete and complex, and that the
entry of partial final judgment would not result in
panel held that the counterclaimant had standing to challenge
an alleged antitrust conspiracy redounding to the benefit of
the collective bargaining association even though it was a
member of the association.
panel held that the Noerr-Pennington doctrine
immunized the counterclaim defendants from antitrust
liability for their conduct in filing lawsuits because they
did not engage in sham litigation.
panel held that the remainder of the counterclaim
defendants' alleged joint activity was immunized from
antitrust liability under § 1 of the Sherman Act because
of the nonstatutory labor exemption. The panel concluded that
under the Mackey test, the alleged agreement
restraining trade primarily affected the parties to the
agreement and no one else; the agreement concerned wages,
hours, or conditions of employment that were mandatory
subjects of collective bargaining; and the agreement was
produced from bona fide, arm's length collective
bargaining. The panel held that an agreement that violates
labor law does not always fail the second prong of the
Clifton concurred entirely in the result and reasoning of the
disposition as to the merits of the appeal. He wrote
separately to express concern over the district court's
decision to enter partial final judgment under Rule 54(b),
and agreed with the opinion's admonition that a
preferable approach would have been for the district court to
certify its order for interlocutory appeal.
O'SCANNLAIN, Circuit Judge
decide whether allegedly anticompetitive activities engaged
in jointly by a labor union and a multi-employer collective
bargaining association violate antitrust law.
Oregon, Inc. ("ICTSI"), a subsidiary of
International Container Terminal Services, Inc., began
operating a marine shipping facility ("Terminal 6")
in 2011, leased from the Port of Portland. It employed
longshoremen and mechanics, among others, represented by the
International Longshore and Warehouse Union
("ILWU"), a labor union that represents many of the
shore-based laborers of the maritime industry.
is a member of the Pacific Maritime Association
("PMA"), a multi-employer collective bargaining
association representing many types of maritime employers who
hire dockworkers and longshoremen. PMA represents ICTSI in
collective bargaining negotiations with ILWU.
and PMA are parties to a collective bargaining agreement
known as the Pacific Coast Longshore and Clerks Agreement
(the "CBA") covering the entire West Coast of the
United States which governed the employment terms for all
longshoremen employed by ICTSI during all times relevant to
this appeal. The CBA is administered by the Joint
Labor Relations Committee ("Joint Committee"). The
parties disagree over whether the Joint Committee, which
meets regularly as the master labor-management committee
under the CBA, has the authority to issue contractual
interpretations that are binding on all signatories. ILWU and
PMA agreed that, with some exceptions, all reefer work-the
work of plugging, unplugging, and monitoring refrigerated
shipping containers-would be performed by ILWU for all PMA
sought to perform the reefer work at Terminal 6, but such
work had historically been within the jurisdiction of the
International Brotherhood of Electrical Workers
("IBEW"). The Joint Committee met on May 23, 2012,
to resolve the disputed work assignment and determined that
the work belonged to ILWU and then ordered ICTSI to assign
the work accordingly. ICTSI argued, and still argues, that
the reefer work at Terminal 6 was not its to assign under the
terms of its lease with the Port of Portland. On June 4,
2012, an arbitrator, claiming authority under the CBA's
grievance provisions, determined that ICTSI was in violation
of the CBA and ordered it to give the reefer work at Terminal
6 to ILWU. The Joint Committee issued another decision a few
days later, incorporating the arbitrator's decision and
reiterating its previous command that ICTSI grant the
disputed work to ILWU. ICTSI also alleges that PMA, with the
encouragement of ILWU, threatened numerous daily fines of
$50, 000 and even expulsion of ICTSI from the collective
bargaining association to goad it into compliance with the
Joint Committee decisions.
ICTSI commenced a § 10(k) proceeding under the National
Labor Relations Act ("NLRA"), before the National
Labor Relations Board ("NLRB"), to resolve the
jurisdictional dispute between the rival unions. 29 U.S.C.
§ 160(k). The NLRB issued a decision on August 13, 2012,
finding that ILWU workers were not entitled to the reefer
work at Terminal 6, but rather that IBEW workers were.
Int'l Bhd. of Elec. Workers, 358 N.L.R.B. 903,
the NLRB proceeding was pending, ILWU and PMA jointly filed
this suit against ICTSI in federal district court under
§ 301 of the Labor Management Relations Act
("LMRA"), 29 U.S.C. § 185, asking it to order
ICTSI to comply with the recently issued Joint Committee
counterclaimed and alleged, among other things, that ILWU and
PMA violated Sections 1 and 2 of the Sherman Act through
their agreement to assign the disputed work to ILWU and their
actions taken to enforce such agreement. 15 U.S.C.
§§ 1-2. Specifically, ICTSI alleged that ILWU and
PMA used the collective bargaining process to create a
monopoly over longshoreman work on the West Coast: ILWU
benefits because only its workers are able to perform
longshoreman work for PMA-member employers, and PMA benefits
because it collects fees for each hour worked by ILWU
further alleged in its counterclaim that in service of their
agreement to monopolize West Coast port services, ILWU and
PMA worked together to commit various illegal anticompetitive
acts which reduced competition in the relevant
market-raising prices and injuring consumers.
ICTSI claimed at least $4, 000, 000 in damages to itself as
district court stayed most of the parties' claims pending
resolution of various disputes filed before the NLRB.
However, the district court allowed ILWU and PMA to file a
joint motion to dismiss ICTSI's antitrust counterclaim
and then granted it under Federal Rule of Civil Procedure
12(b)(6), concluding that a shared monopoly claim was not
viable under Section 2 of the Sherman Act and that the
alleged anticompetitive conduct was immunized from antitrust
scrutiny because of a combination of the
Noerr-Pennington doctrine, the statutory labor
exemption, and the nonstatutory labor exemption.
moved for entry of a partial final judgment pursuant to
Federal Rule of Civil Procedure 54(b), which the district
court granted, dismissing ICTSI's antitrust counterclaim
with prejudice. All other issues remain stayed in the
district court pending the resolution of related NLRB
proceedings. This timely appeal followed.
and PMA contend that the district court erred in entering a
Rule 54(b) partial final judgment on the antitrust
counterclaim. They assert that the facts and legal arguments
of the antitrust counterclaim substantially overlap with
other claims and counterclaims before the district court, and
that the district court's grant of a partial final
judgment will generate piecemeal appeals and waste judicial
resources. See Romoland Sch. Dist. v. Inland Empire
Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 2008).
Accordingly, they argue that we should vacate the judgment.
See Morrison-Knudsen Co. v. Archer, 655 F.2d 962,
966 (9th Cir. 1981) (concluding that if "[t]he claims
disposed of by the Rule 54(b) judgment [are] inseverable,
both legally and factually, from claims that remained
unadjudicated in the district court, and there [are] no
unusual and compelling circumstances that otherwise dictated
entry of an early, separate judgment on that part of the
case, " the partial final judgment should be vacated).
satisfied that the district court did not err in concluding
that ICTSI's antitrust counterclaim involved discrete
legal issues separate from those involved in the § 301
litigation or the adjudications still proceeding before the
NLRB. It is true that the factual issues involved in such
claim are closely tied to the factual issues in the labor-law
claims still pending before the district court, but the
antitrust counterclaim involves distinct points of law. Also,
the legal issues before us are complicated and not routine.
See Wood v. GCC Bend, LLC, 422 F.3d 873, 882 (9th
Cir. 2005) (observing that in cases where common factual
issues abound, the entry of a Rule 54(b) partial final
judgment should be reserved for complex and distinct legal
issues). Finally, we agree with the district court's
determination that entry of a partial final judgment would
result in no duplicative proceedings, even if we reversed the
dismissal of the antitrust counterclaim. Id. at 879.
the district court's decision to grant ICTSI's Rule
54(b) motion was correct is a close call. In circumstances
such as these, we strongly prefer that the district court
"certify its order for interlocutory appeal, "
which allows "the Court of Appeals to protect its docket
by determining for itself whether to accept the issue for
review." Morrison-Knudsen Co., 655 F.2d at 966.
However, because the issues before us are discrete and
complex and we must give substantial deference to certain
elements of the ...