Samson Tug and Barge Co., Inc et al v. International Longshore and Warehouse Union et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SAMSON TUG & BARGE, CO. INC.,
Plaintiff,
v.
INTERNATIONAL LONGSHORE &
WAREHOUSE UNION, ALASKA
LONGSHORE DIVISION, and
ILWU UNIT 222,
Defendants.
Case No. 3:20-cv-00108-TMB
Case No. 3:20-cv-00248-TMB
Consolidated
ORDER ON DEFENDANTS’ MOTION
TO DISMISS & MOTION TO STRIKE
(DKT. 38)
I. 	INTRODUCTION
The matter comes before the Court on Defendants International Longshore and Warehouse
Union and ILWU Unit 222’s (collectively, “ILWU”) Motion to Dismiss Complaint for Damages
and Injunctive Relief and Motion to Strike Settlement Communication (the “Motion”).1 The
Motion (1) seeks to dismiss the Complaint2 filed by Plaintiff Samson Tug and Barge, Co., Inc.
(“Samson”) under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim, and
(2) seeks to strike a confidential settlement communication under Federal Rule of Civil Procedure
1 Dkts. 38 (Motion); 39 (Memo. in Support of Motion). At the Parties’ request, the Court
consolidated this case with Case No. 3:20-cv-00248-TMB. Dkts. 35 (Plaintiffs’ Unopposed
Motion to Consolidate); 36 (Order Granting Motion to Consolidate). ILWU’s Motion is also
docketed in Case No. 3:20-cv-00248-TMB, Dkt. 8.
2 Case No. 3:20-cv-00248-TMB (filed on Oct. 5, 2020), Dkt. 1 (Complaint).
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12(f).3 The Motion was fully briefed by the Parties,4 and the Court heard oral argument.5 For the
reasons stated below, ILWU’s Motion is GRANTED in part and DENIED in part.
II. 	BACKGROUND
The background of this case is set forth in detail in the Court’s Order at Docket 81 and will
not be repeated here.6
A. 	Complaint for Damages
ILWU is an unincorporated labor organization.7 ILWU is party to a multi-employer
collective bargaining agreement (“CBA”) called the All Alaska Longshore Agreement (“AALA”)8
with employer Matson Navigation Company of Alaska (“Matson”) and others.9 Matson purchased
the terminal in Womens Bay in 2016 or 2017 from LASH Corporation (“LASH”), and Samson
leases space from Matson at Womens Bay to conduct its operations there.10 After Matson
3 Dkt. 38.
4 Dkts. 42 (Opposition to Motion); 46 (ILWU Consolidated Reply).
5 Dkt. 80 (Tr. of Feb. 16, 2021 Hearing).
6 Dkt. 81 (Order Denying Preliminary Injunction).
7 Dkts. 1 at ¶¶ 5–6; 12 at 7–8 (Petition to Vacate).
8 Dkt. 13 (Young Decl.); see also Dkt. 13-1 (AALA).
9 Dkts. 1 at ¶¶ 6, 12–13; 1-7 (NLRB Decision, 369 NLRB No. 63, Case 19-CED-225672, 19-CD-
225674) (Apr. 28, 2020).
10 Dkts. 46 at 7 (ILWU’s Consolidated Reply); 80 at 7:11-13, 66:20-21; see also Case No. 3:20-
cv-00248-TMB, Dkt. 1 at ¶ 12. Matson personnel also note that after learning of the present
litigation, it determined that Matson “could not get in the middle of a jurisdiction dispute, now in
federal court, between ILWU and MEBA as we have bargaining relationships with both.” Dkt. 64-
6 at 2; see also Dkt. 64-6 at 28 ¶ 4 (Tungul Aff.). According to testimony at the February 16, 2021
Hearing, Matson is not conducting its own cargo operations out of Womens Bay Terminal and is
merely acting as a landlord at this location. Dkt. 80 at 42:8-13.
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purchased Womens Bay Terminal, it continued leasing the property to Samson under an amended
month-to month lease.11
In its Complaint for damages, Samson argues ILWU has committed an unfair labor practice
(“ULP”) in violation of 29 U.S.C. § 158(b)(4)(ii)(D),12 and that as a result, Samson is entitled to
damages and injunctive relief.13 Samson brings its Complaint under Section 303 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 187, and 9 U.S.C. § 10.14
Samson states it has operated a fleet of tugs and barges, providing service among various
Alaskan ports as well as ports in Seattle, Washington, and that it has operated at Womens Bay
Terminal in Kodiak for approximately forty years.15 Samson has historically employed members
of Marine Engineers’ Beneficial Association, AFL-CIO (“MEBA”) to work its docks, including
11 Dkt. 1-3 (Agreement to Amend Lease); cf. Dkt. 43-1 at 6 (Lease Agreement Between Lash &
Samson, August 1, 2014); Case No. 3:20-cv-00248-TMB, Dkt. 1 at ¶ 12.
12 Although Samson cites to 29 U.S.C. § 158(b)(4)(i)(D) in its Complaint, as ILWU correctly
points out (i)(D) only applies to strikes, which are not alleged in this case. See Dkt. 39 at 17–18,
20 n.1. Further, in Samson’s Opposition to the Motion to Dismiss, it cites to 29 U.S.C.
§ 158(b)(4)(ii)(D). Dkt. 42 at 11, 14.
13 Case No. 3:20-cv-00248-TMB, Dkt. 1 at ¶¶ 28–34. Samson also petitioned the Court to vacate
the Coast Arbitrator’s Decision (“Decision”), and ILWU moved to dismiss the Petition. Dkts. 1;
11 (Motion to Dismiss Petition). The Court concluded it lacked subject matter jurisdiction under
Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to hear the Petition given
that Samson did not allege a breach or violation of the AALA, the subject of the Decision. Dkts.
82 (Order Granting Motion to Dismiss Petition); 84 (Order Denying Motion for Reconsideration).
The Court also concluded Samson lacked standing to bring the Petition because Samson was
neither a party to the AALA nor a third-party beneficiary. Dkt. 82 at 11. Confusingly, Samson
states that its Section 303 claim “flows directly from [its] Petition to Vacate Arbitration Decision
claim” and that “Samson’s success in that claim may cause the Coast Arbitrator’s [D]ecision to be
vacated” and result in Samson recovering money improperly collected by ILWU. Dkt. 42 at 14.
However, the Court views Samson’s Petition and its Complaint as separate claims brought under
separate statutes and treats the filings as such.
14 Case No. 3:20-cv-00248-TMB, Dkt. 1 at ¶¶ 1, 28–34.
15 Id. at ¶¶ 8–10.
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at Womens Bay.16 Samson acknowledges it is not a party to any agreements with ILWU.17 Samson
states ILWU has “made a number of demands on Samson, a stranger to the Matson-ILWU
collective bargaining agreement” including to “use ILWU represented employees to perform all
of Samson’s cargo operations at Womens Bay . . . rather than Samson’s MEBA represented
employees[.]”18 Samson alleges that “ILWU has also demanded that Matson apply the Coast
Arbitrator’s [D]ecision by terminating Samsons’ Womens Bay lease thereby canceling Samson’s
occupancy of its terminal at Womens Bay if Samson does not use ILWU” members for Samson’s
Womens Bay operations or “pay ILWU’s time in lieu charges.”19 Further, Samson alleges, ILWU
has used the Coast Arbitrator’s Decision “to demand Samson use ILWU” members in its cargo
operations at other ports, “including the waterside operations at Pier II, a separate Kodiak
terminal.”20
Samson alleges “ILWU’s time in lieu charges are improper and part of a campaign to
pressure Samson to use ILWU represented labor instead of its own MEBA labor,” which Samson
argues is an unfair labor practice in violation of 29 U.SC. § 158(b)(4)(ii)(D) of the LMRA.21
16 MEBA is an unincorporated labor organization representing employees at ports and on
oceangoing vessels, including Samson employees through IBU-MEBA, and party to a Collective
Bargaining Agreement (“CBA”) with Samson. Dkts. 1 at ¶ 4; 80 at 27:22–28:21, Case No. 3:20-
cv-00248-TMB, Dkt. 1 at ¶¶ 7–8, 11–12.
17 Case No. 3:20-cv-00248-TMB, Dkt. 1 at ¶ 7.
18 Id. at ¶ 17.
19 Id. at ¶¶ 19, 24.
20 Id. at ¶ 20.
21 Id. at ¶ 34. Again, the Court notes Samson incorrectly cites to 29 U.SC. § 158(b)(4)(i)(D).
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Samson states that an April 28, 2020 decision by the National Labor Relations Board
(“NLRB”) issued pursuant to § 10(k) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 160(k), determined the jurisdiction of the two unions, ILWU and MEBA, for work at Pier II in
Kodiak (“NLRB Decision” or “§ 10(k) Award”).22 Samson notes that the NLRB Decision “grants
Samson’s MEBA employees the waterside cargo handling work at Pier II[.]”23 The NLRB
Decision 	further 	recognizes 	the 	“decades 	long 	history 	of 	MEBA 	represented 	employees
performing cargo operations at Womens Bay” and the issues that could result from replacing
MEBA members with ILWU members in Samson’s ocean-going cargo handling operations.24
Samson alleges that using ILWU labor for Samson’s cargo handling operations at Womens
Bay will disrupt Samson’s “operations in other ports and affect Samson’s ability to safely
configure, load, and stow cargo, thereby affecting the safety of Samson’s ocean-going cargo
operations.”25
Samson seeks damages of at least $200,683, which represents the amount Samson has paid
so far to Matson in “time in lieu” charges, and that Matson has passed on to ILWU.26 Samson also
states its remedy at law is inadequate because Samson is unable to continue paying these time in
lieu charges and therefore seeks injunctive relief requiring ILWU “to cease demanding payment
of these time in lieu charges.”27 Samson alleges ILWU has submitted additional time card charges
22 Id. at ¶ 21.
23 Id.
24 Id.
25 Id. at ¶ 18.
26 Id. at ¶¶ 22–29, 10–11.
27 Id. at ¶¶ 33–34.
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for cargo handling work performed by Samson’s MEBA employees at Womens Bay.28 Samson
alleges that the “time card sums claimed by ILWU are 290% of Samsons’ actual labor expenses
with its own employees.”29 Samson alleges that continuing to pay ILWU’s time in lieu charges is
not financially sustainable and will cripple Samson’s ability to continue existing service to its main
hub port at Womens Bay.”30
B. 	Motion to Dismiss and to Strike Settlement Communication
ILWU moves to dismiss Samson’s Complaint for Damages pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(6) on the grounds that the Complaint fails to state sufficient facts
to support a claim for relief.31 ILWU argues Samson fails to allege any cognizable theory for relief
under Section 303 because the Coast Arbitrator’s Decision and the NLRB Decision do not
conflict.32 ILWU argues that the NLRB Decision “merely resolved a jurisdictional dispute between
ILWU and another union,” MEBA, “at a different, publicly-owned dock, and [the NLRB Decision]
is inapplicable to the work performed at Womens Bay Terminal.”33 Even if the arbitration Decision
and the NLRB Decision did conflict, “Samson fails to allege a claim against ILWU as the
arbitration [Decision] applies only to Matson, who can choose to comply or pay contractual
28 Id. at ¶ 31.
29 Id.
30 Id. at ¶ 32.
31 Dkt. 38 at 2.
32 Dkt. 39 at 7, 22–26.
33 Id.
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penalties.”34 ILWU argues Samson has no contractual obligations under the Coast Arbitrator’s
Decision.35
Further, ILWU argues that Samson fails to allege ILWU engaged in any “coercive”
conduct necessary to state a claim under Section 303.36 Nevertheless, ILWU alleges, Samson
attempts to rely on a confidential settlement communication between ILWU and MEBA, which
must be stricken from the record.37
ILWU contends that Samson improperly attached to its Complaint an email from Dennis
Young of ILWU to MEBA members, which constitutes “a confidential settlement communication”
in an attempt to show coercion by ILWU in violation of the NLRA, § 8(b)(4)(ii)(D).38 ILWU
argues that the attached communication “reveals an attempt to reach a resolution with MEBA in
the face of [the Coast Arbitrator’s] Order.”39 ILWU argues this “settlement communication” is
“inadmissible 	under 	[Federal 	Rule 	of 	Evidence] 	408” 	and 	“should 	be 	stricken 	and 	not
considered.”40
34 Id. at 7–8, 26–29.
35 Id. at 8.
36 Id. at 8, 20–21.
37 Id. at 8, 30–31.
38 Dkts. 39 at 30 (citing Case No. 3:20-cv-00248-TMB, Dkt. 1-6 (Email Ex.)); 38 at 2. Samson re-
attached this same email to Baggen’s Declaration in support of Samson’s Motion for a Preliminary
Injunction. Dkt. 54-3 (Email Ex.).
39 Id. at 31.
40 Id.
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Samson opposes ILWU’s Motion, arguing that its Complaint states a properly pleaded
claim for relief under Section 303 and should not be dismissed.41 Samson argues that its Complaint
is not premised on a conflict between the Coast Arbitrator’s Decision and the NLRB Decision
regarding the operations at Pier II in Kodiak.42 Instead, Samson states, the NLRB Decision has
been provided “only to show that Samson’s claims that it needs to use its MEBA personnel for
safe and efficient cargo handling on Samson’s barges were established as correct after a contested
10k hearing.”43
Samson argues its interests are affected in a “very substantial and concrete manner”
because ILWU is using the arbitration Decision to pressure Matson to force Samson to pay time
in lieu charges or to substitute ILWU members for Samson’s MEBA employees.44
Samson argues it successfully states a plausible claim that ILWU is using the Coast
Arbitrator’s Decision “to coerce and force Samson to assign work to ILWU” and breach its
obligations to MEBA.45 Samson argues this behavior, “when coupled with a wrongful intent or
objective” constitutes a ULP in violation of 29 U.S.C. § 158(b)(4)(ii), which “makes it an unfair
labor practice . . . ‘to threaten, coerce, or restrain any person engaged in commerce or in an
industry affecting commerce, where in either case an object there is[]’ to force an employer to deal
with a particular labor organization” that does not represent its employees.46 Here, Samson argues,
41 Dkt. 42 at 10–11.
42 Id. at 12.
43 Id. at 12–13 (citing Dkt. 1-7 (NLRB Decision)).
44 See id. at 13–14.
45 Id. at 14.
46 Id. at 14–15.
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ILWU’s intent is evinced by ILWU’s conduct in attempting to obtain the work historically
performed by MEBA employees through coercion.47 Samson also points to the March 5, 2020
email from Dennis Young, in which Young notes that Samson is in a “precarious month-to-month
lease at Womens Bay” and “lists the options ILWU has discussed with Matson as various ways to
leverage” the Coast Arbitrator’s 	Decision to coerce Samson.48 Samson argues this email “may
reasonably interpreted as evidence of intent by ILWU to use coercion to force Samson to give in
to ILWU jurisdiction in other Alaska ports and give up the then undecided Pier II NLRB 10k claim
– under threat of forced use of ILWU workers at Womens Bay or termination of Samson’s lease.”49
Samson also argues that under Federal Rule of Evidence (“FRE”) 408, evidence of
settlement communications is inadmissible only to provide or disprove the validity or amount of a
disputed claim or to impeach by a prior inconsistent statement.50 Here, Samson argues, the
evidence of settlement is sought for another propose: “to show intent or ‘an object of’ coercive
activity under 29 U.S.C. § 158(b)(4)(D).”51 Thus, Samson argues, the email communication ILWU
seeks to strike is “competent and admissible evidence” that tends to support Samson’s claim that
ILWU used the arbitration at issue in this case “in a coercive and threatening manner, as an unfair
labor practice to force Samson to use ILWU” workers instead of its MEBA employees.52
47 Id. at 15.
48 Id. at 15–16.
49 Id. at 16–17.
50 Id. at 18
51 Id. at 18–19.
52 Id. at 19–20 (“In the March 5, 2020 email Dennis Young ‘said the quiet part out loud’ by
outlining ILWU's plan to use the arbitrator’[s] decision to coerce and threaten Samson with the
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ILWU filed a consolidated Reply largely reiterating its arguments, including that Samson’s
Complaint is insufficient on its face and fails to allege ILWU violated federal labor law.53
Additionally, 	ILWU 	argues 	that 	Samson’s 	Opposition, 	which 	asserts 	new 	allegations,
demonstrates that amendment would be futile.54
ILWU argues that it’s submission of time cards to Matson, a signatory to the AALA along
with ILWU, does not constitute coercive conduct where, as here, Matson had no legal obligation
to contract with Samson and by refraining from doing so, Matson avoids a breach of its contract
with ILWU.55 Further, ILWU argues Samson does not allege ILWU engaged in conduct that
violated a § 10(k) work assignment or was contrary to the reasoning of a § 10(k) work
assignment.56 	ILWU also reiterates that injunctive relief is not available in suits for damages
brought under Section 303.57 Finally, ILWU again argues that Samson is attempting to use a
confidential settlement communication to prove the validity of a dispute claim, a prohibited use
under FRE 408, and that this email between Dennis Young and MEBA members must be
stricken.58
objective of forcing Samson to give its MEBA employees’ work to ILWU, not only in Womens
Bay but in multiple Alaska ports.”).
53 Dkt. 46 at 7, 15.
54 Id. at 15–29.
55 Id. at 22–23.
56 Id. at 23–24.
57 Id. at 17 (citing Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252,
258–61, 260 n.16 (1964)).
58 Id. at 26.
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On February 16, 2021, the Court held an omnibus hearing, during which the Parties gave
oral argument regarding the Motion to Dismiss and other outstanding Motions.59
C. NLRB Decision
Separate from the underlying action, on April 28, 2020, the NLRB issued a decision
pursuant to § 10(k) of the NLRA, 29 U.S.C. § 160(k).60 In the underlying dispute, employer and
party to the AALA, American President Lines, Ltd. (“APL”) alleged that ILWU engaged in
activity with the object of forcing APL to assign certain work to ILWU employees, rather than to
employees represented by MEBA and employed by Samson.61 Samson intervened.62
APL and Samson argued that there was “reasonable cause to believe that Section
8(b)(4)(D) of the [NLRA] has been violated in light of ILWU’s August 9 picket of Pier II.”63
APL previously entered into a “connecting carrier agreement” with third-party barge
operator Samson to use Samson’s MEBA employees to unload APL cargo to and from Samson’s
59 Dkts. 78 (Minute Entry); 80.
60 See Case No. 3:20-cv-00248-TMB, Dkt. 1-7. Section 10(k) of the NLRA governs hearings on
jurisdictional strikes, and states:
Whenever it is charged that any person has engaged in an unfair labor practice
within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is
empowered and directed to hear and determine the dispute out of which such unfair
labor practice shall have arisen, unless, within ten days after notice that such charge
has been filed, the parties to such dispute submit to the Board satisfactory evidence
that they have adjusted, or agreed upon methods for the voluntary adjustment of,
the dispute. Upon compliance by the parties to the dispute with the decision of the
Board or upon such voluntary adjustment of the dispute, such charge shall be
dismissed. 29 U.S.C. § 160(k).
61 Case No. 3:20-cv-00248-TMB, Dkt. 1-7 at 1.
62 Id.
63 Id. at 3.
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barges at Womens Bay.64 Matson, after taking over LASH Dock at Womens Bay and becoming
Samson’s landlord, informed Samson that Samson could no longer handle APL cargo there.65 APL
began searching for an alternative location for its Kodiak operations and started working on an
operations agreement for Pier II at the port of Kodiak.66 While still in negotiations, APL
management notified parties that it intended for Samson barges calling on Pier II to be worked on
the dock side by ILWU employees and on the water side by MEBA-represented Samson
employees.67 In response, ILWU demanded that APL honor the jurisdictional terms of the AALA
and stated that ILWU would not agree to non-ILWU members working any portion of APL’s Pier
II operations.68 ILWU and APL proceeded to arbitration and the Alaska Arbitrator issued a
decision directing ILWU to accept APL’s order and dispatch workers for the Samson barge.69
ILWU members then began picketing Pier II but dispersed following an order by the Alaska
Arbitrator.70 The parties brought the dispute before the NLRB, which determined that MEBA
should continue to do the water side work related to loading and unloading APL’s containers to
and from Samson’s barges at Pier II.71
64 Id.
65 Id. at 2.
66 Id.
67 Id.
68 Id.
69 Id.
70 Id. at 2–3.
71 Id. at 3–6.
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The NLRB found that MEBA-represented Samson employees had been performing the
work in dispute since late 2018.72 The NLRB concluded Samson’s preference to continue using
MEBA-represented employees, APL’s desire to continue contracting with Samson, the parties’
current assignment and past practice favored awarding the disputed work to Samson’s MEBA-
represented employees.73 Further, the NLRB concluded that the relative skill and training of the
employees along with the economy and efficiency of operations favored awarding the work to
Samson’s MEBA employees.74
III. 	LEGAL STANDARD
A. 	Federal Rule of Civil Procedure 12(b)(6)
ILWU moves under Rule 12(b)(6) to dismiss Samson’s Complaint for failure to state a
claim upon which relief can be granted.75 In order to survive a motion to dismiss under Rule
12(b)(6), a complaint must set forth “a short and plain statement of the claim showing that the
pleader is entitled to relief,”76 and “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”77 In ruling on a 12(b)(6) motion, the Court must
72 Id. at 4.
73 Id. at 5.
74 Id. at 5–6.
75 Dkt. 38 at 2.
76 Fed. R. Civ. P. 8(a)(2).
77 Ashcroft v. Iqbal, 556 U.S. 662, 677‒78 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
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“‘accept all factual allegations of the complaint as true and draw all reasonable inferences in favor
of the nonmoving party.’”78
In determining whether a complaint pleads sufficient facts to cross “the line between
possibility and plausibility,” “[t]hreadbare recitals of the elements of a cause of action” and
“conclusory statements” do not suffice.79 However, a plaintiff need not plead “all facts necessary
to carry” his or her burden.80 “Determining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.”81 So long as plaintiffs meet this standard of plausibility, their
claim survives a 12(b)(6) motion even if defendants present a similarly plausible description of the
disputed events.82 “‘A dismissal for failure to state a claim is proper only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.’”83
78 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 923 (9th Cir. 2001) (quoting Nat’l
Ass’n for the Advance. of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir.
2000)).
79 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
80 Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), rev’d on other grounds 563 U.S. 713
(2011).
81 Iqbal, 556 U.S. at 679 (citation omitted).
82 Starr v. Baca, 652 F.3d 1202, 1216–17 (9th Cir. 2011).
83 Arpin, 261 F.3d at 923 (quoting Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th
Cir. 1994)).
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Generally, the court should not consider materials outside of the pleadings when ruling on
a motion to dismiss for failure to state a claim.84 Courts may consider additional materials where
the complaint “necessarily relies” on those documents and their authenticity is not disputed.85
B. 	Federal Rule of Civil Procedure 12(f)
Under Federal Rule of Civil Procedure 12(f), a court “court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”86 “Motions
to strike are generally regarded with disfavor because of the limited importance of pleading in
federal practice, and because they are often used as a delaying tactic.”87 “In most cases, a motion
to strike should not be granted unless ‘the matter to be stricken clearly could have no possible
bearing on the subject of the litigation.’”88
“Some courts also refuse to grant Rule 12(f) motions unless prejudice would result to the
moving party from denial of the motion.”89 However, even if the material is not prejudicial to the
moving party, motions to strike are proper if granting the motion would make trial less complicated
84 Id. at 925 (citing Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)).
85 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (citations omitted).
86 Fed. R. Civ. P. 12(f); Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 888 (N.D. Cal.
2012); Lemberg v. JP Morgan Chase Bank, N.A., No.17-cv-05241-JSC, 2018 WL 2463214, at *3
(N.D. Cal. June 1, 2018) (noting that whether to grant a motion to strike is within the sound
discretion of the district court).
87 Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003); Reddy v.
Morrissey, No. 3:18-cv-00938-YY, 2018 WL 4407248, at *2 (D. Or. Sept. 17, 2018); Barnes v.
AT&T Pension Benefit Plan-Nonbargained Prog., 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010).
88 Reddy, No. 3:18-cv-00938-YY, 2018 WL 4407248, at *2 (quoting Platte Anchor Bolt, Inc. v.
IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004)); Wailua Assocs. v. Aetna Cas. and Sur.
Co., 183 F.R.D. 550, 553–54 (D. Haw. 1998)).
89 Platte Anchor Bolt, Inc., 352 F. Supp. 2d at 1057 (citation omitted).
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or otherwise streamline the ultimate resolution of the action.90 Courts have used Rule 12(f) to
strike allegations from complaints that detail settlement negotiations within the ambit of FRE
408.91
IV. 	DISCUSSION
Here, the Court concludes Samson has plausibly alleged an unfair labor practice in
violation of 29 U.SC. § 158(b)(4)(ii)(D). Further, the Court concludes that striking the email
communication from Dennis Young is not appropriate at this juncture. However, because Samson
brings this action under Section 303, which provides solely for damages and not injunctive relief,
Samson’s claim for injunctive relief is dismissed. Accordingly, ILWU’s Motion to Dismiss
pursuant to Rule 12(b)(6) and Motion to Strike pursuant to 12(f) is GRANTED in part and
DENIED in part.
A. 	Section 303 of the Labor Management Relations Act.
Section 303 of the LMRA, under which Samson brings its Complaint for damages, states:
(a) It shall be unlawful, for the purpose of this section only, in an industry or activity
affecting commerce, for any labor organization to engage in any activity or conduct
defined as an unfair labor practice in section 158(b)(4) of this title.
(b) Whoever shall be injured in his business or property by reason or any violation
of subsection (a) may sue therefor in any district court of the United States subject
to the limitations and provisions of section 185 of this title without respect to the
90 Brown, 913 F. Supp. 2d at 888 (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.
1993), rev’d on other grounds, 510 U.S. 517 (1994)).
91 See Stewart v. Wachowski, No. CV-03-2873 MMM (VBKx), 2004 WL 5618386, at *2 (C.D.
Cal. Sept. 28, 2004); Jones v. Metro. Life Ins. Co., No. C–08–03971–JW (DMR), 2010 WL
4055928, at *14 (N.D. Cal. Oct. 15, 2010) (“[U]nder Federal Rule of Civil Procedure 12(f), courts
have granted motions to strike references to settlement negotiations even at the pleadings stage of
a case, on the basis that the contents of settlement discussions would otherwise be inadmissible
under Federal Rule of Evidence 408 and are therefore immaterial and potentially prejudicial.”).
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amount in controversy, or in any other court having jurisdiction of the parties, and
shall recover the damages by him sustained and the cost of the suit.92
Section 303 provides a private right of action for compensatory damages to a party injured by
reason of “a union’s unfair labor practices” under NLRA § 8(b)(4).93 Unfair labor practices by a
union include:
to threaten, coerce, or restrain any person engaged in commerce or in an industry
affecting commerce, where in either case an object thereof is . . . forcing or
requiring any employer to assign particular work to employees in a particular labor
organization or in a particular trade, craft, or class rather than to employees in
another labor organization or in another trade, craft, or class.94
The Ninth Circuit has also noted that, “[i]n rare cases, [a] union can commit a predicate
unfair labor practice through its conduct in an arbitration proceeding.”95 In such cases, “[t]he
Section 8(b)(4) violation occurs the moment the union pursues arbitration with an unlawful
secondary motive.”96 As this Court previously described:
A union’s pursuance of a grievance through arbitration can be considered coercive
under section 8(b)(4) if that grievance is based on an interpretation of a collective
bargaining agreement that furthers an unlawful object. That is, it is coercive if a
union pursues an interpretation of a collective bargaining agreement in arbitration
that promotes secondary union activity and not primary work preservation activity.
The court applies a two-part test when determining whether an agreement is a
lawful work preservation agreement: (1) the union’s objective must be the
preservation of work traditionally performed by employees represented by the
92 29 U.S.C. § 187.
93 Am. Pres. Lines, Ltd. v. ILWU, AKLD, 721 F.3d 1147, 1153, 1156 (9th Cir. 2013); 29 U.S.C.
§ 187; see also ILWU v. ICTSI Oregon, Inc., 932 F. Supp. 2d 1181, 1192 (D. Or. 2013)
(“Section 303 ‘authorizes a private damages action for an employer who has been injured by a
union’s unfair labor practice.’”) (quoting Summit Valley Indus. Inc. v. Local 112, United Broth. of
Carpenters & Joiners of Am., 456 U.S. 717, 722 (1982)).
94 29 U.S.C. § 158(b)(4)(ii)(D).
95 Am. Pres. Lines, Ltd., 721 F.3d at 1149.
96 Id. at 1155.
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union; and (2) the contracting employer must have the power to give the employees
the work in question.97
B. 	Samson has Sufficiently Stated a Claim for an Unfair Labor Practice in Violation of
the NLRA
Samson alleges that following the Coast Arbitrator’s Decision, ILWU has made a number
of demands on Samson, including pressuring Samson to use ILWU represented individuals for
cargo operations at Womens Bay and Pier II.98 Further, Samson alleges ILWU has demanded
Matson, Samson’s landlord, cancel Samson’s lease at Womens Bay if Samson does not use ILWU
represented individuals for its Womens Bay operations.99 These actions, Samson argues, are a
ULP and an attempt to force an employer to negotiate with or work with a particular labor
organization that does not represent its employees.100 ILWU argues that Samson has failed to state
a claim and dismissal is appropriate pursuant to Rule 12(b)(6).101 Specifically, ILWU argues the
Coast Arbitrator’s Decision is not in conflict with or beyond the scope of the NLRB Decision,
ILWU did not engage in a ULP in pursuing contractual remedies against an employer who can
comply with the arbitration Decision, and Samson has failed to allege ILWU acted contrary to a
§ 10(k) award or otherwise engaged in coercive conduct.102
97 Am. Pres. Lines, Ltd. v. ILWU, 997 F. Supp. 2d 1037, 1043 (D. Alaska 2014) (citations omitted)
(analyzing a claim for alleged unfair labor practices brought under Sections 8(b)(4)(ii)(A) & (B)).
98 See Case No. 3:20-cv-00248-TMB, Dkt. 1 at ¶¶ 14–29; see also Dkt. 42 at 10–18.
99 Case No. 3:20-cv-00248-TMB, Dkt. 1 at ¶ 19; see also Dkt. 42 at 10–18.
100 Case No. 3:20-cv-00248-TMB, Dkt. 1 at ¶¶ 28, 34; Dkt. 42 at 15.
101 Dkts. 38 at 2 (internal quotation marks omitted); 39 at 22–31; 46 at 21–24.
102 Dkts. 38 at 2; 39 at 22–31; 80 at 62:16–63:25.
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As a threshold matter, there is no dispute that Samson, despite not being a party to the
Coast Arbitrator’s Decision it challenges, has standing under Section 303 to bring a claim for
damages against ILWU.103 Further, based on Samson’s allegations, Samson appears to be an
intended beneficiary of the protection afforded by Section 8(b)(4).104 The Court and Parties also
agree that the NLRB Decision involved separate parties at a separate location and there is no direct
conflict between NLRB Decision and Coast Arbitrator’s Decision; therefore, the Court need not
analyze or evaluate the NLRB’s supremacy in this matter.105
Construing Samson’s allegations as true at this stage, at its heart, this appears to be a
jurisdictional dispute between work allocated to two unions, ILWU and MEBA, and an attempt by
ILWU to exert leverage over Samson to cooperate at another location, Pier II, and use ILWU labor.
The Court concludes Samson can state a claim for a ULP on the basis that ILWU pursued an
arbitration decision for an unlawful purpose.106 While the Court agrees with ILWU that its
contractual claims involving Matson and the jurisdictional dispute at the center of the NLRB
103 See Dkts. 46 at 18; 80 at 80:12-21 (counsel for ILWU noting that “anyone who is injured by
reasons of an unfair labor practice can make a claim for damages, solely damages[.]”); see also
Am. Pres. Lines, Ltd., 721 F.3d at 1153.
104 See ILWU v. NLRB, 978 F.3d 625, 633 (9th Cir. 2020) (“Congress enacted the ULP provisions
in [§] 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4), to protect ‘neutral employer[s]’ caught between
competing unions.”) (quoting Nat’l Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 625–26
(1967)); see also Nat’l Woodwork Mfrs. Ass’n, 386 U.S. at 627 (A “neutral employer” is one “not
concerned with a primary labor dispute[.]”).
105 See Sea-land Serv., Inc. v. ILWU, Locals 13, 63 & 94, 939 F.2d 866, 872–73 (9th Cir. 1991);
George Day Constr. Co. v. United Bhd. of Carpenters & Joinders of Am., Local 354, 722 F.2d
1471, 1477 (9th Cir 1984); Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1275
(9th Cir.), op. mod. on den. of reh’g (9th Cir. 1984); see also Dkt. 46 at 20–21; Case No. 3:20-cv-
00248-TMB, Dkt. 1 at ¶¶ 20–21.
106 See Am. Pres. Lines, Ltd., 721 F.3d at 1149, 1155.
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Decision are distinct,107 that distinction on its face does not automatically mean Samson will be
unable to prevail on its ULP claim.108 Further, even though Matson could comply with the Coast
Arbitrator’s Decision and has the right under its lease agreement “to impose virtually any
restrictions or requirements it wants” or to terminate Samson’s lease,109 Matson’s ability to comply
does not mean that Samson’s claim must fail as a matter of law.
Further, although ILWU is correct that the NLRB has jurisdiction under § 10(k) of the
NLRA to hear an unfair labor practice charged under § 8(b)(4)(D),110 the language of 29 U.S.C.
§ 158(b)(4)(ii)(D) does not limit the avenues for such grievances. Section 303 provides concurrent
jurisdiction to this Court to hear Samson’s claims.111
At this stage, the Court accepts all factual allegations of the complaint as true and draws
all reasonable inferences in favor of Samson.112 Samson has alleged sufficient facts that ILWU
“threaten[ed], coerce[d], or restrain[ed]” Samson where “an object thereof” was “forcing or
requiring 	any 	employer 	to 	assign 	particular 	work 	to 	employees 	in 	a 	particular 	labor
107 See Dkt. 39 at 28.
108 See Arpin, 261 F.3d at 923 (“A dismissal for failure to state a claim is proper only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.”) (internal quotation marks and citation omitted).
109 See id. at 28–29.
110 Pac. Maritime Ass’n v. NLRB, 827 F.3d 1203, 1206 (9th Cir. 2016) (“[T]he Board is directed
‘to hear and determine the dispute out of which such unfair labor practice shall have arisen.’”)
(quoting 29 U.S.C. § 160(k)); see also Case No. 3:20-cv-00248-TMB, Dkt. 1-7 at 3 (“The Board
may proceed with a determination of a dispute under Section 10(k) . . . if there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated.”).
111 See 29 U.S.C. § 187.
112 Arpin, 261 F.3d at 923 (internal quotation marks and citation omitted).
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organization . . . rather than to employees in another labor organization[.]”113 Specifically, Samson
has alleged that ILWU pursued arbitration with the purpose of coercing or pressuring Samson to
use ILWU-represented employees in Samson’s operations. Further, Samson, in paying “time in
lieu” charges on top of its labor costs to MEBA, has sufficiently alleged a financial injury that “is
directly tied to the nature of the alleged statutory violations.”114
The Court concludes Samson has stated claim for damages that plausible on its face.115
Accordingly, ILWU’s Motion as made under Rule 12(b)(6) to dismiss Samson’s Complaint for
damages is DENIED.
C. Section 303 Does not Provide for Injunctive Relief
“[A]n employer cannot seek injunctive relief from a secondary boycott under [S]ection
303; only damages are available.”116 More generally, “the NLRA does not permit employers to
seek injunctions against the activity that it does prohibit. It grants to the . . . NLRB[] exclusive
authority 	to 	seek 	injunctions 	against 	some 	forms 	of 	secondary 	activity.”117 Therefore,
“congressional policy, as expressed in the NLRA, remains that employers are not permitted to
113 See 29 U.S.C. § 158(b)(4)(ii)(D); Am. Pres. Lines, Ltd., 721 F.3d at 1153.
114 See Am. Pres. Lines, Ltd., 721 F.3d at 1154.
115 See Iqbal, 556 U.S. at 677‒78 (quotation marks omitted).
116 San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1235 (9th Cir.
1997) (citing Burlington N. R.R. v. Bhd. of Maintenance of Way Emp., 481 U.S. 429, 448 (1987));
Cal. Ass’n of Emp. v. Building & Constr. Trades Council of Reno, 178 F.2d 175, 178 (9th Cir.
1949) (“The [LMRA] did not give private litigants the right to obtain injunctive relief even in those
situations where a suit for damages was allowed.”).
117 Burlington N. R.R., 481 U.S. at 448 (citing 29 U.S.C. § 158(b)(4), 160(j), 160(l)).
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obtain injunctions of secondary activity.”118 Section 303 has been interpreted as providing
exclusively for damages as a remedy, and not injunctive relief.119
As the Court previously concluded, “the only remedy under LMRA Section 303, 29 U.S.C.
§ 187, is compensatory damages[.]”120 Moreover, ILWU, argues, and Samsons does not contest,
that Section 303 does not allow for injunctive relief.121 Accordingly, insofar as Samson seeks
injunctive relief in its Complaint against ILWU, ILWU’s Motion to Dismiss is GRANTED.122
D. Striking Confidential Settlement Communications
118 Id.
119 See, e.g., San Antonio Cmty. Hosp., 125 F.3d at 1235; Adobe Drywall, L.L.C. v. United Bhd. of
Carpenters & Joiners of Am., Local Union No. 1506, No. CV-08-2105-PHX-SRB, 2009 WL
10707035, at *5 (D. Ariz. Feb. 5, 2009) (“[T]he Court may not order injunctive relief pursuant to
§ 303[.]”); Adobe Drywall, L.L.C. v. United Bhd. of Carpenters & Joiners of Am., Local Union
No. 1506, No. CV-08-2105-PHX-SRB, 2009 WL 10707036, at *5 (D. Ariz. July 10, 2009) (An
“employer cannot seek injunctive relief from a secondary boycott under section 303; only damages
are available.’ . . . Therefore, Adobe cannot obtain injunctive relief on the basis of its claims that
Defendants engaged in unfair labor practices under § 158(b)(4).”)).
120 Dkt. 81 at 10 (Order Denying Preliminary Injunction)
121 Dkts. 63 at 13–15; 80 at 92:17-21 (“[U]nder Section 303, the Ninth Circuit held in San Antonio
Community Hospital and also California Association of Employers that 303 is not a basis for
preliminary injunction. Full stop at that point. There is no basis under [Section] 303.”); 71 at 2.
122 Because the Court dismisses Samson’s claim for injunctive relief, the Court need not decide
whether Matson is a necessary party for purposes of this Order. However, the Court notes this as
an issue that may require resolution. See E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774, 783 (9th
Cir. 2005) (“[B]y definition, [necessary] parties to be joined under Rule 19 are those against whom
no relief has formally been sought but who are so situated as a practical matter as to impair either
the effectiveness of relief or their own or present parties’ ability to protect their interests.”) (internal
quotation marks, alterations, and citation omitted); Fed. R. Civ. P. 19; see also Dkts. 81 at 28–29
(“Although Samson may be correct that Matson need not be part of the litigation for the Court to
resolve the ultimate issue of whether ILWU engaged in unfair labor practices, it appears Matson
is necessary for the equitable relief Samson seeks.”); 42 at 8, 14 (Samson states that “Matson has
required that Samson look to ILWU and not Matson for compensation in the event a court
determines these time in lieu charges are improper.”); 43 (Baggen Decl.).
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ILWU also moves pursuant to Rule 12(f) and FRE 408 to strike an email communication
between Dennis Young of ILWU and MEBA personnel regarding Matson and Samson’s ongoing
discussions following the Coast Arbitrator’s Decision.123 Under FRE 408:
Evidence of the following is not admissible--on behalf of any party--either to prove
or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1) furnishing, promising, or offering--or accepting, promising to accept, or
offering to accept--a valuable consideration in compromising or attempting to
compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim-
-except when offered in a criminal case and when the negotiations related to a
claim by a public office in the exercise of its regulatory, investigative, or
enforcement authority.
However, a court “may admit this evidence for another purpose, such as proving a witness’s bias
or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.”124
Two principles underlie FRE 408: “(1) [t]he evidence [of compromise] is irrelevant, since
the offer may be motivated by desire for peace rather than from any concession of weakness of
position,” and “(2) [a] more consistently impressive ground is promotion of the public policy
favoring the compromise and settlement of disputes.”125 FRE 408’s prohibition on evidence of
comprise to provide liability or invalidity of a claim also applies to cases in which the party seeking
to introduce evidence of the compromise was not involved in the original compromise.126
123 Dkts. 38 at 2; 39 at 19, 30–31; 46 at 26; Case No. 3:20-cv-00248-TMB, Dkt. 1-6.
124 Fed. R. Evid. 408(b).
125 Fed. R. Evid. 408 advisory committee’s notes to 1972 proposed rules; see also Hudspeth v.
C.I.R., 914 F.2d 1207, 1213–14 (9th Cir. 1990).
126 Hudspeth, 914 F.2d at 1213.
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Here, the communication ILWU seeks to strike under Rule 12(f) and exclude under FRE
408 is an email between ILWU leadership, Dennis Young, and MEBA members notifying MEBA
that ILWU prevailed in an arbitration dispute against Matson for failure to hire ILWU members.127
Young further notifies MEBA members that Matson met with Samson and presented three options
under which Matson and Samson could proceed that honored the result of the arbitration award.128
ILWU offers to discuss the “Employer driven problem” further with MEBA.129
The Parties do not dispute this email constitutes a settlement communication, only whether
the communication is subject to exclusion. However, it is not clear to the Court that the
communication between Young and MEBA members is a settlement communication under FRE
408. Samson includes the email as evidence of ILWU’s coercion and threats toward MEBA and
Samson—not to prove or disprove the validity or amount of a disputed claim.130 Moreover, Rule
12(f) is a harsh and disfavored remedy. Given the early stage of this litigation, the Court declines
to resolve the relevance of the attached email communication or whether its contents falls within
the scope of FRE 408.131 The Court is also unpersuaded that striking the allegations will streamline
the litigation.132 Thus, the Motion to Strike is DENIED without prejudice.
127 Dkt. 1-6 at 1.
128 Id.
129 Id.
130 See Fed. R. Evid. 408(a). It is too premature to know whether Samson would seek to introduce
the email for impeachment purposes. See id. Further, MEBA is no longer a party this to action.
Dkt. 72 (MEBA Stip. re Voluntary Dismissal).
131 See, e.g., Ocean Garden Prod. Incorp. v. Blessings Incorp., No. CV-18-00322-TUC-RM, 2019
WL 396873, at *1 (D. Ariz. Jan. 29, 2019).
132 See, e.g., Koninklijke Philip Electronics N.V. v. Nat. Film Labs. Inc., CV-12-4576 GAF
(FFMx), 2012 WL 12886833, at *4 (C.D. Cal. Dec. 4, 2012).
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Accordingly, ILWU’s Motion pursuant to Rule 12(b)(6) is GRANTED in part and
DENIED in part.
V. 	CONCLUSION
For the forgoing reasons, ILWU’s Motion at Docket 38 is GRANTED in part and
DENIED in part. Pursuant to Rule 12(a)(4)(A), ILWU shall file its Answer to Samson’s
Complaint within fourteen (14) days of this Order’s issuance.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 9th day of April, 2021.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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