ILWU Wins Another Round in Neptune Jade Case
by Steve Stallone, ILWU Dispatcher, September 1998
No Dispatcher Documents for PMA
The ILWU won a major court victory in the Neptune Jade case, stymieing the shipping employer group the Pacific Maritime Association's effort to make the union turn informant on the Liverpool dockers' supporters who picketed the scab ship. Alameda County Superior Court Judge Henry Needham, Jr. ruled Aug. 12 PMA cannot subpoena any documents the union has concerning the planning and organizing of the Neptune Jade picket line or the demonstrating that took place there in September 1997.
The PMA sought the union's documents to obtain the identities of the protestors so it could sue them for financial damages. But all the documents the ILWU has on those matters were obtained by the union's newspaper, The Dispatcher, while reporting the story. So the union's attorneys argued that all of them were protected from being subpoenaed under the California Shield Law that says courts cannot compel journalists to hand over any papers, records or photographs they gather in the course their reporting work. Judge Needham agreed with the union.
At the hearing PMA attorney Raymond Lynch argued that he needed the union's documents because they could identify participants in the picket line, could show if defendant and IBU member Robert Irminger planned and organized the demonstration, what his intentions were and what he was asking other people to do.
Lynch further argued that the journalist privilege doesn't apply because The Dispatcher is not the New York Times, just the internal organ of the ILWU. He said its 30,000 circulation to ILWU membership doesn't count as disseminating news to the public. For The Dispatcher to claim journalistic privilege, he said, is "a sham" and "opens journalistic privilege into a wide super highway."
But when Judge Needham asked if he had any legal authority or precedent for this position, Lynch acknowledged he did not.
ILWU attorney An Le responded that the Shield Law doesn't discriminate on type or content of the publication or periodical or the medium of news dissemination. All enjoy absolute journalistic privilege. In her brief to the court Le cited a U.S. Supreme Court decision for the principle that journalists' confidentiality must be protected or "reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment."
To overcome this Constitutional free press protection, the party demanding the reporter's records must show that the information they seek goes to the heart of the case, and that they have exhausted all other alternative sources for the information.
But Le argued that all the information PMA was seeking-on planning a demonstration and being present at one is all Constitutionally protected free speech and freedom of assembly action and none of it could prove PMA's allegations of illegal activity. She also argued that disclosing these documents would violate and have a chilling effect on the constitutional rights of free speech and association of the ILWU, its members and associates.
When the judge asked Lynch if he had looked for other sources for the information he wanted or had conducted other depositions to try to find it, Lynch replied that only the ILWU had the information and that he couldn't conduct meaningful depositions without it. Le pointed out the absurdity of this position by simply saying that Oakland Mayor-elect Jerry Brown had walked the picket line and made public statements that he had, and yet PMA had made no attempt to question or subpoena him. In the end Judge Needham ruled in the union's favor, saying the documents are protected by the journalists' privilege and that the subpoena was overbroad and impinged on the ILWU and its members First Amendment rights to associational privacy.
After the hearing ILWU International President Brian McWilliams addressed the 30 supporters who packed the courtroom. "It's nice the PMA realized The Dispatcher is not the New York Times or the Wall Street Journal," he said. "Those papers would never tell working people's stories. They are driven by their advertisers and business interests. If anyone's journalistic integrity and privilege should be questioned, it's theirs."
In another related case, the PMA brought the ILWU into federal court Aug. 11, the day before the hearing on the document subpoena. At the previous hearing in that case July 22 the ILWU had shut down the Port of Oakland and instead held a mass demonstration outside the courthouse to protest the Neptune Jade lawsuit. That day the PMA sought an arbitration, alleging the union had stopped work in violation of the contract and won. PMA now wanted the federal court to confirm that ruling and grant a preliminary injunction ordering the union not to pull any other work stoppages to pressure it into dropping the Neptune Jade lawsuit.
But ILWU attorney Richard Zuckerman argued that the court did not have jurisdiction to deal with this matter. The union is in the process of appealing the arbitration decision, he said, and the contract explicitly states that until the grievance process is exhausted, the courts cannot intervene.
Zuckerman labeled PMA's action part of its "unlawful program of racing to court to confirm admittedly 'interim' and non-final arbitration awards" in violation of the contract and cited numerous other similar failed attempts over the last couple of years.
U.S. District Court Judge Martin Jenkins sided with the union and denied PMA's motions to confirm the arbitration and grant the injunction.
Although the union was able to stop both the subpoena for documents and the injunction, the PMA still plans to pursue the prosecution of Robert Irminger and anyone else it can find to sue. Irminger will be deposed Sept. 3 and PMA attorneys are likely to ask him to "name names" of those involved in the Neptune Jade picket line.
This case is not over yet.
Three years of solidarity: The Liverpool dockers and the Neptune Jade lawsuit
The lawsuit arises from an action that happened in September 1997. The Neptune Jade, a container ship loaded by non-union labor at a port administered by the same company that had fired the Liverpool dockers, sailed into the Port of Oakland on the second anniversary of the dockers' sacking. ILW'U members did not cross the line for three days and the ship eventually left without being worked. It received similar receptions in Vancouver, British Columbia and at two ports in Japan.
This act of international solidarity was so effective the PMA decided to sue the pickets for hundreds of thousands of dollars in financial losses it claims it incurred because of the action in an effort to harass them and intimidate future would-be demonstrators. Named in the complaint were IBU San Francisco Region Chair Robert Irminger, Local 10 Executive Board member Jack Heyman, the Golden Gate chapter of the Labor Party, the Laney College Labor Studies Club and the Peace and Freedom Party.
At a hearing March 10 Alameda County Superior Court Judge Henry Needham, Jr. threw out the complaints against Heyman and the Labor Party, citing their First Amendment rights to free speech and assembly. But the court allowed the PMA to pursue Irminger. The Laney College Labor Studies Club and the Peace and Freedom Party were never served.
In its continuing quest to find more defendants to hold responsible for its losses, the PNIA subpoenaed all documents the ILWU International and Locals 10 and 34 have "that relate or refer to the demonstrating" or to the organizing or planning of the demonstrating at the Yusen Terminal in Oakland where the Neptune Jade berthed from Sept. 28 to Oct. 1, 1997.
Locals 10 and 34 testified they had no such documents so the hearing Aug. 12 focused on those held by the International and The Dispatcher.