Rare Court Order Telling Union To Stop Filing Grievances Example Of Employer Risks When Caught Between Competiting Unions

A district court judge in Washington has ordered the International Longshore and Warehouse Union (ILWU) to stop processing grievances and filing lawsuits against a competitive union, the International Brotherhood of Electrical Workers (IBEW), and, pending the outcome of further litigation, employers assigning work of plugging in, unplugging and monitoring refrigerated shipping containers at the Port of Portland to IBEW.  The litigation between the two competing unions shows how employers can get caught in risky, no-win liability exposures as a result of power battles between competing unions over the right to represent workers performing services for the employers.

The injunctive order steps from a dispute between both unions over which union is entitled to represent a group of workers. Both unions claim the work, citing various contracts and collective bargaining agreements. In August 2012, the National Labor Relations Board issued a decision concluding that the employees represented by the IBEW are entitled to the work. Despite that ruling, the ILWU and two of its locals have continued to file and process grievances against employers serving as carriers at the port, seeking lost wages for work assigned to the IBEW. The ILWU also filed a claim against the IBEW in federal court under the Labor-Management Relations Act.

In granting the petition for injunctive relief from the NLRB’s Regional Office in Seattle late Wednesday, November 22, 2012, U.S. District Judge Michael H. Simon found that, by filing grievances and seeking enforcement of subsequent awards despite the Board’s decision, the ILWU had the unlawful secondary object of pressuring shipping carriers to stop doing business with the Port of Portland. He enjoined the union from filing, processing, maintaining, prosecuting, or threatening grievances or new lawsuits in the matter against the union as well as the carrier employers. With respect to the dispute with IBEW, the court ruled that the continued filing of the grievances against the IBEW constituted an unfair labor practice because the NLRB ruling already had recognized the IBEW as the authorized representative of the covered employees performing the work.

Concerning his decisions to also bar the ILWU from suing and filing charges against the employing carriers that have been caught in the war between the two unions, the Court issued a temporary injunction pending the outcome of the litigation. The court noted that the question of whether the NLRB ruling prohibited the carrier employers from subcontracting work covered by the NLRB order could not be permanently resolved based in the facts on the record, but that the IBEW had produced sufficient evidence of likely success on merits and irreparable harm to justify the court’s issuance of a temporary injunction.

While federal courts rarely enjoin unions under the National Labor Relations Act, the federal court in this matter found in light of the NLRB ruling in favor of the other union, the court’s decision in favor of the IBEW allows the IBEW to move forward for the time being as the  representative of the workers.  Concurrently, the court’s decision allows the employers caught between the two unions to continue operations for the time being by assigning work to the IBEW workers unless and until the ILWU proves its entitlement to that work.

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If you need help reviewing and updating, administering or defending your employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

About Ms. Stamer

A Board Certified Labor & Employment attorney and Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

Ms. Stamer is widely known for her extensive and creative knowledge and experienced with these and other labor and employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns  see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to  cstamer@solutionslawyer.net.

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©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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