[00:00:03] Speaker 03: Good morning, Your Honors. [00:00:05] Speaker 03: I'm Daniel Spurgeon. [00:00:07] Speaker 02: Could you speak into the microphone, please? [00:00:09] Speaker 03: My name is Daniel Spurgeon on behalf of Samson Tug and Barge. [00:00:13] Speaker 03: I'd like to reserve seven minutes for rebuttal, please. [00:00:18] Speaker 03: This case is even more interesting than the one about windows. [00:00:22] Speaker 03: Here we're talking about tugboats, barges, ocean. [00:00:25] Speaker 02: You really mean tugboats? [00:00:30] Speaker 03: What this case boils down to are two fairly simple legal principles. [00:00:36] Speaker 03: The first is that a party to a contract cannot enforce its own contract terms against a stranger. [00:00:43] Speaker 03: There is no quasi-governmental eminent domain power that a private party gains when it forms a contract with one other business partner. [00:00:53] Speaker 03: The second [00:00:55] Speaker 03: overarching legal principle is that when Congress has clearly spoken to an issue with statutory text, that language must control unless there is some superseding constitutional provision. [00:01:09] Speaker 02: Let's get away from generalities. [00:01:11] Speaker 02: Can you discuss the work preservation issue, please? [00:01:17] Speaker 03: Yes, Your Honor. [00:01:18] Speaker 03: The cases that are cited on work preservation all speak to one of two contexts. [00:01:25] Speaker 03: The first, such as in ILA 2, is a situation where an employer has agreed to a work jurisdiction term with a labor organization. [00:01:36] Speaker 03: And of course, when you're a party to a contract, [00:01:39] Speaker 03: and you agree that no matter which technology develops or which geographic location, you're going to have this work ongoing with your workforce that you will recognize the jurisdiction of a certain union. [00:01:54] Speaker 03: That's an unremarkable proposition. [00:01:56] Speaker 03: However, here, Samson Tugg has never [00:02:00] Speaker 03: entered into any contracts with the ILWU. [00:02:04] Speaker 03: It has never been signatory to the AALA agreement. [00:02:08] Speaker 02: But the new owner of the port is a signatory, correct? [00:02:13] Speaker 03: Yes, your honor, strictly in a landlord tenant capacity, and many of the cases that have been cited in the briefing so far by ILWU speak to a contractor-subcontractor relationship, and that was not present here. [00:02:28] Speaker 03: Matson, not only did they not subcontract any work to Samson Tug, they never performed any work with their own forces at the Lash Dock. [00:02:39] Speaker 03: So all of those cases that speak to a contractual agreement of work jurisdictions such as ILA too are entirely an opposite. [00:02:47] Speaker 03: The other type of case that falls under the work preservation defense are the ones where the containers are owned by the employer against whom the union is affecting coercion. [00:03:04] Speaker 03: So that would be like the Cal Carthage case. [00:03:06] Speaker 03: But here, the district court improperly found that Matson owned the shipping containers that Samson was transporting. [00:03:14] Speaker 03: But as counsel to their credit have conceded in the briefing here in the appellate court, that was an error. [00:03:22] Speaker 03: There is no evidence of any kind of the record that Matson ever owned the containers that Samson shipped. [00:03:28] Speaker 03: Matson never had any equipment at the Lash Dock. [00:03:31] Speaker 03: And in fact, when Samson, after paying $733,000 for work that was never performed, left the Lash Dock, [00:03:41] Speaker 03: There was no work performed there because Matson had no forces, no operations, no right to control Samson's work in any way. [00:03:51] Speaker 03: And as the IWU bears the burden of proof on the work preservation defense, it was their duty in the district court and here to point to record evidence to show that A, they have been performing the work in question. [00:04:07] Speaker 03: and B, that the employer against whom they were affecting coercion had the right to control the work of the neutral, which is Samson, and neither one of those are satisfied on the record here. [00:04:21] Speaker 03: When it comes to the question of whether the union has shown that they have historically performed the work in question, [00:04:30] Speaker 03: the trend is for the union to brief this broad, regional sort of a claim that because the longshoremen perform work at various ports throughout Alaska. [00:04:42] Speaker 02: Well, it isn't quite that generic. [00:04:45] Speaker 02: I think the agreement in question [00:04:48] Speaker 02: obliges Matson to have ILWU Longshoremen performing all the cargo handling at the ports that Matson owns. [00:05:02] Speaker 02: Doesn't agreement require that? [00:05:05] Speaker 03: That was the Kegel interpretation, Your Honor, and that's an illegal 8E hot cargo interpretation. [00:05:12] Speaker 03: And under this court's APL precedent, I believe in 2013, that's an unenforceable hot cargo interpretation. [00:05:20] Speaker 02: I think that's what the agreement says. [00:05:22] Speaker 02: I don't think it's an interpretation of the agreement. [00:05:26] Speaker 03: Well, Your Honor, even if the plaintiffs... Excuse me. [00:05:31] Speaker 02: Sorry. [00:05:33] Speaker 02: Give you an extra few seconds. [00:05:35] Speaker 02: I interrupted you. [00:05:37] Speaker 03: Even if the plain text of the agreement said that, that doesn't affect Samson because Samson never signed on to that agreement in any way. [00:05:45] Speaker 02: And if... But that's not the question, is it? [00:05:50] Speaker 02: Isn't the question whether the union was permissibly pursuing a work preservation objective [00:06:01] Speaker 03: Well, Your Honor, there was no work for them to preserve. [00:06:04] Speaker 03: They never performed work at the Lash Dock. [00:06:07] Speaker 03: They got paid $733,000 for phantom work, but they never performed any work there. [00:06:14] Speaker 03: Matson never performed any work there at all. [00:06:17] Speaker 02: Matson's the owner, right? [00:06:19] Speaker 03: Yes, Your Honor, strictly the landlord. [00:06:25] Speaker 02: Well, that's my problem, because I read the agreement to [00:06:30] Speaker 02: to require any signatory to use the union, the ILWU, in any port that it owns, any facility that it owns. [00:06:46] Speaker 03: And, Your Honor, if Matson had operations there with Matson employees, Matson would have agreed to use ILWU labor. [00:06:55] Speaker 02: Well, you're struggling with how I read the agreement because if as an owner they're required to see to it that those, that is the union that performs the work, then it seems to me that there's a legitimate argument there because your argument really is that there's no legitimate assertion of work preservation. [00:07:19] Speaker 03: Well, I have two responses to that, Your Honor. [00:07:23] Speaker 03: The agreement would not affect Samson because Samson never signed on to it. [00:07:29] Speaker 03: But when the union deliberately targeted Samson by way of coercing Matson, it directly violated the congressional statute in AE. [00:07:42] Speaker 03: And that cannot. [00:07:42] Speaker 02: The coercion here, so-called coercion, is the brain of, is starting the arbitration, is grieving the arbitration. [00:07:54] Speaker 02: The arbitrators agreed with them, and I know that isn't the be-all and end-all because the court could find that that was illegitimate nevertheless, but it is suggestive of a work preservation motive. [00:08:11] Speaker 03: Well, Your Honor, if ILWU's motivation was actually only targeted at Samson, or only targeted at Matson, and it stopped there at the direct impact on Matson, [00:08:26] Speaker 03: then we would have an entirely different case. [00:08:29] Speaker 03: However, in the record, such as 5ER561, 661 through 668, there is ample written evidence that ILWU was expressly targeting Samson Tuck. [00:08:45] Speaker 03: It was applying coercion to Matson with the specific intent to injure Samson. [00:08:56] Speaker 03: Samson tug to pay these time and lieu charges under the terminal services agreement. [00:09:01] Speaker 03: And that's why ILWU cannot point to any case on all fours that relates to a situation where the neutral Samson is being penalized and essentially pushed out of business at a location, all because they employ members of MIBA instead of members of the union that's affecting the coercion. [00:09:25] Speaker 01: You said you wanted to reserve seven minutes. [00:09:26] Speaker 01: Do you want to reserve? [00:09:28] Speaker 03: I'll reserve the remainder, Your Honor. [00:09:29] Speaker 01: Very well. [00:09:36] Speaker 00: Good morning, Your Honors. [00:09:37] Speaker 00: Emily Malio for the police, ILWU Alaska. [00:09:43] Speaker 00: Could you speak up also? [00:09:43] Speaker 00: Oh, sure. [00:09:44] Speaker 00: Sorry. [00:09:44] Speaker 00: Can you hear me? [00:09:45] Speaker 00: Yes. [00:09:47] Speaker 00: OK. [00:09:49] Speaker 00: To start, I just want to note, this court need only affirm summary judgment on any one of three separate grounds. [00:09:56] Speaker 00: The union's work preservation defense, the union's neutrality defense, or that Sampson failed to prove that or failed to submit evidence that [00:10:06] Speaker 00: the LWU's actions caused its damages. [00:10:09] Speaker 00: Now turning to the work preservation defense that council was discussing. [00:10:15] Speaker 00: First, in virtually every work preservation case, lawful work preservation case, the union seeking work preservation is seeking work that's not currently assigned to them. [00:10:28] Speaker 00: That is the case in national woodwork at 615 to 16, [00:10:34] Speaker 00: The party who was alleging a violation of the law was the contractor of a union's employer. [00:10:41] Speaker 00: That's the case in the ILA cases. [00:10:44] Speaker 00: The charging parties there were affected truckers and consolidators and the teamsters who were going to lose work as a result of the enforcement of the work preservation agreement. [00:10:55] Speaker 00: The same in Maui Trucking, non-union truckers. [00:10:59] Speaker 00: Same in Cal Cartage, Consolidators, Teamsters. [00:11:03] Speaker 00: And in the Fourth Circuit's recent decision, South Carolina Ports Authority, there was the state and the port authority who were claiming an injury as a result of the ILA's work preservation agreement. [00:11:20] Speaker 00: And in that decision, particularly at note four, they note [00:11:24] Speaker 00: As I just said, in nearly all work preservation cases, the union seeks work not currently assigned to it. [00:11:30] Speaker 00: That draws directly from Supreme Court precedent in the ILA cases, which find that you need to focus on the work of the bargaining unit employees, not on other employees. [00:11:43] Speaker 00: No matter how severe the impact is going to be on other employees, that is irrelevant to the analysis. [00:11:50] Speaker 00: The extra unit effects of a lawful work preservation agreement alone do not establish an unlawful secondary object. [00:12:02] Speaker 00: This circuit recently found that as well in the Frito, well not recently, actually 1980, found that in the Frito-Lay case. [00:12:08] Speaker 02: That seems recent to some. [00:12:12] Speaker 00: Where it says we do not infer intent from foreseeable consequences. [00:12:17] Speaker 00: And what Samson's counsel cannot point to in the record here is any evidence that my client directed any activity to them. [00:12:28] Speaker 00: Rather, the impact on Samson and Samson's employees was incidental to a lawful work preservation agreement. [00:12:37] Speaker 00: Now, he also raised the issue of control. [00:12:45] Speaker 00: From what I can read in the briefs, it seems like they're trying to apply a stricter level of what the right of control is than what the Supreme Court and what this circuit has held. [00:12:56] Speaker 00: And on those points, I would refer the court to the decision, it's also a 1980 decision, in Verdugo Bowl. [00:13:05] Speaker 00: In that case, a bowling alley had a tenant who was a coffee shop. [00:13:13] Speaker 00: For many years, through its role as the landlord, they were able to require their tenant to sign a union signatory agreement and become a signatory to the union contract. [00:13:28] Speaker 00: After many years of doing so, they didn't want to do so anymore. [00:13:31] Speaker 00: That's when they went to the Labor Board. [00:13:34] Speaker 00: And I think what's really important here is this court found that there is little doubt that the bowl armed with its contract language is capable of threatening termination of the relationship in order to force its lessee to accede to union demands. [00:13:51] Speaker 00: The problem in that case was not that the bowling alley didn't have control [00:13:57] Speaker 00: over the work in dispute, but rather that they were trying to impose what was an unlawful union signatory agreement. [00:14:05] Speaker 00: In fact, this court noted that the bowling alley would have been free to impose and require its tenant through the same exact identical authority at issue here to agree to a union standards clause. [00:14:19] Speaker 00: Likewise, in 2018, this court found in Paramount that if Paramount had the authority over the scoring musicians via its contractual control over the composer's selection, then Paramount had the power to give the scoring musicians the work in question. [00:14:36] Speaker 00: So there really is no dispute here that by virtue of being the landlord, Matson had lawful control over the work. [00:14:48] Speaker 00: I'm happy to discuss some of the other arguments if you have any questions. [00:14:54] Speaker 00: Any matters here? [00:14:55] Speaker 00: I guess I will just further add here on the neutrality defense, which counsel did not raise. [00:15:09] Speaker 00: From the briefing, I believe what Sampson is contending is that neutrality is limited to the so-called ally doctrine that has been developed over the years. [00:15:19] Speaker 00: I think it's important to note, though, that that concept [00:15:23] Speaker 00: derived from basically statements that Senator Taft made when passing the Taft-Hartley Act, which created the secondary boycott laws. [00:15:34] Speaker 00: That the purpose of those laws are to protect employers wholly unconcerned with the labor dispute and not to protect those who are in cahoots. [00:15:47] Speaker 00: here and this concept kind of came first from a district court decision endowed and then the board kind of developed it. [00:15:56] Speaker 00: But there's never any point where it says there's only two paths. [00:16:00] Speaker 00: struck work or single employer that are the only ways that an employer loses the protection of the act. [00:16:11] Speaker 00: Rather, as the board held in Sid Harvey, that you need to make a realistic common sense evaluation. [00:16:19] Speaker 00: And in many of these cases, [00:16:23] Speaker 00: They go a bit outside of those two narrow lanes. [00:16:28] Speaker 00: I think Roslyn and Marikana is a good example. [00:16:31] Speaker 00: And here, while it is the case there was no struck work, it is also plainly the case that Sampson was performing work that the Coast Arbitrator directed Matson to assign to the IOWU. [00:16:46] Speaker 00: And arbitration is kind of part of the grand bargain. [00:16:50] Speaker 00: Unions give up their right to strike in exchange for having a third-party neutral resolve dispute. [00:16:56] Speaker 00: And the analogy, I think, is pretty close there. [00:17:00] Speaker 00: And I think it's especially the case if you look at kind of the drafting of the Terminal Services Agreement, how it was entered behind [00:17:10] Speaker 00: the ILW is back, how as soon as the ILW found out about it, we went immediately back to the arbitrator and reached a finding that Madison violated the arbitration award by entering into that agreement, making contentions that my client wanted Samson to pay time in lieu pretty preposterous. [00:17:34] Speaker 00: If your honors have no further questions, or no questions at all, [00:17:39] Speaker 00: Thank you, it's an honor to appear before you. [00:17:46] Speaker 03: I'd just like to respond to these points that were made in serial order unless the court has questions. [00:17:53] Speaker 03: The cases such as ILA and the more recent ones that were cited, those all rely on the fundamental assumption that the employer had agreed to a certain term, such as anywhere that we perform work, we will use your labor. [00:18:10] Speaker 03: But that's not present here. [00:18:12] Speaker 03: Samson was never in a contract with ILWU. [00:18:16] Speaker 03: ILWU has never performed the work at the blast dock that Samson was performing. [00:18:22] Speaker 03: Never. [00:18:23] Speaker 03: And Matson is the landlord. [00:18:26] Speaker 03: If they go buy more real property somewhere in Juneau, does everyone who's currently leasing that land in Juneau suddenly have to hire ILWU's labor? [00:18:36] Speaker 03: I mean, that's a governmental power that ILWU is seeking. [00:18:41] Speaker 03: essentially a prohibition on any employers not using ILW labor. [00:18:48] Speaker 03: And when we hear the term the grand bargain just now, well, sure, if you are contracting with a labor organization, you're bargaining, there's a compromise that's reflected in the National Labor Relations Act, but Samson chose not to with the ILWU. [00:19:05] Speaker 03: Instead, it struck its bargain with MIBA, and it has a productive relationship with MIBA, [00:19:11] Speaker 03: A terrific success. [00:19:13] Speaker 03: Mr. Baggin has been operating in a tugboat for his company since he was 13 years old. [00:19:20] Speaker 03: They're successful. [00:19:21] Speaker 03: They want to be left alone. [00:19:22] Speaker 03: Congress wrote statutory text that says you have to leave them alone. [00:19:27] Speaker 03: If you want to organize them, you have to come in through the bottom-up approach and try and generate interest in votes. [00:19:36] Speaker 03: We don't need to infer intent. [00:19:39] Speaker 03: This isn't where we're just speculating that ILWU was targeting Samson Tugg's work vis-à-vis the coercion on Matson. [00:19:48] Speaker 03: I'll point the court to the record at 5ER 661, 657 through 660. [00:19:55] Speaker 03: 674 through 675, 682 through 685. [00:20:02] Speaker 03: ILWU was expressly targeting Samson, wanted Samson to pay these time in lieu charges. [00:20:08] Speaker 03: And then eventually, despite Samson paying almost a million dollars for work that was never performed, [00:20:15] Speaker 03: Then, ILW demanded that Matson terminate the Terminal Services Agreement and evict Samson if Samson wouldn't betray Amoeba and hire ILWU labor. [00:20:26] Speaker 03: And we have the March 5th, 2020 email in there where one of the three options that ILWU demands is that Matson evict Samson. [00:20:39] Speaker 03: If that's not a cease-doing business objective that has caused Samson nearly a million dollars in damages so far, then I don't know what the congressional text could possibly prohibit. [00:20:51] Speaker 03: It has to mean something. [00:20:53] Speaker 03: Verdugo Hills Bowl was a subcontracting case. [00:20:56] Speaker 03: Matson never subcontracted anything to Samson, never had operations of the last stock. [00:21:02] Speaker 03: Only Samson did. [00:21:03] Speaker 03: A union standards case such as Verdugo Bowl would be minimum safety standards, minimum wages. [00:21:10] Speaker 03: But there's no evidence that that's ever been an issue in this case. [00:21:14] Speaker 03: There was no union standards clause at issue. [00:21:18] Speaker 03: Also, we just heard a request this court use its power to add exceptions [00:21:24] Speaker 03: to 8B and 8E and essentially just write more employers out of the protections of the statute because, well, we heard that, well, there shouldn't only be two ways that an employer can lose its neutrality status. [00:21:40] Speaker 03: Well, if Congress wanted to create exceptions, it would have. [00:21:44] Speaker 03: It didn't do that here. [00:21:45] Speaker 03: It made exceptions for the garment industry and the construction industry. [00:21:49] Speaker 03: It did not choose to do so for the longshoremen industry. [00:21:54] Speaker 03: And the main point, which I'd like to close with, is that even if some of ILWU's points have been correctly cited to the record, at a minimum there is a question of disputed fact where Samson Tugg should get to present its case to the jury in a trial setting. [00:22:16] Speaker 03: Unless the court has any questions, I'll conclude with that. [00:22:20] Speaker 01: Thank you very much, Council. [00:22:21] Speaker 01: Thanks to both of you for the argument and briefing in this case. [00:22:24] Speaker 01: This matter is submitted, and we are done for the week. [00:22:27] Speaker 01: I want to thank everyone who made this possible. [00:22:30] Speaker 01: Thanks to CSOs. [00:22:31] Speaker 01: Appreciate it. [00:22:32] Speaker 01: Thanks to our tech folks over there. [00:22:34] Speaker 01: Have a good weekend.