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Judge Denies EGT Request for Summary Judgment, Sends Matter to Arbitrator by Erik Olson The Daily News, October 7, 2011

The Port of Longview and longshore union won an important round in their ongoing battle with the EGT grain terminal Friday, but a decision about whether the union is legally entitled to work there still is months away.

U.S. District Court Judge Ronald B. Leighton ruled that the port's working agreement with union longshore workers applies at the EGT grain terminal. However, he stopped short of saying it obligates EGT to hire members of the International Longshore and Warehouse Union.

In effect, he kicked the issue down the road, saying the matter should be put to a federal labor arbitrator.

The port and union claimed victory Friday because Leighton rejected EGT's claim that the working agreement had no bearing on its contract with the port to build the $200 million grain terminal on port land.

"It certainly is a high-five moment for the port and the ILWU," port attorney Frank Randolph said.

In an 11-page ruling, Leighton wrote: "The parties were acutely aware of the Working Agreement, and of the Port's belief that it established union longshore jurisdiction over the property to be leased -- both on the docks and on the land side of the facility."

Leighton rejected EGT's request for summary judgment based on its claim that its contract with the port does not obligate it to hire the ILWU. Had Leighton granted that request, the matter would have been settled Friday in EGT's favor.

EGT attorneys have not said if they plan to ask for reconsideration or appeal. They argue that the working agreement violates federal labor laws by forcing the company to recognize a union before it even hired employees. The company has hired Federal Way-based union contractor General Construction Co. to staff the terminal with union operating engineers based out of Gladstone, Ore.

"Our position has always been that we are not required to hire ILWU workers, and Judge Leighton's ruling does not obligate us to do so. Additionally, we believe that application of the port's Working Agreement violates federal labor law. We are confident that further consideration of this case will support our position," EGT CEO Larry Clarke said in a written statement.

EGT sued the port in January, arguing that the company was not bound by the port's working agreement with the ILWU.

Leighton put the resolution of the matter in the hands of an arbitrator, who could decide by the end of the year whether the union can legally have labor jurisdiction at EGT under the National Labor Relations Act, Randolph said.

At a hearing in Tacoma last week, Leighton criticized the port and EGT for leaving the contract language on labor so muddy and confusing. In the end, the text of the working agreement was included within the contract, but EGT attorneys argued the language was only referenced the agreement and did not bind the company.

Instead, Leighton agreed with port attorneys that the court must determine the intent of the labor agreement, likely after a ruling from the arbitrator.

"Despite EGT's suggestions to the contrary, the Court's primary purpose is to ascertain and give effect to the parties' intent" in writing the contract, Leighton wrote.

ILWU officials praised Leighton's ruling in a written statement, noting their members have worked in other West Coast grain terminals for decades.

"EGT is trying to disrupt the positive relationship that the ILWU has in every other grain terminal, and EGT's lawsuit against the Port of Longview shows that the company doesn't mind shifting more legal costs to Cowlitz County taxpayers," ILWU Coastal Committeeman Leal Sundet said.

EGT and the ILWU have been locked in a months-long fight over the 25 to 35 jobs at the terminal. Last week, Leighton fined the union $250,000 for illegal picketing at the site, including mass blocking on rail tracks in front of incoming grain trains and vandalism at the terminal.