                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


AMERICAN PRESIDENT LINES, LTD.,          No. 11-36080
               Plaintiff-Appellant,
                                           D.C. No.
                 v.                     3:10-cv-00183-
                                             JWS
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, ALASKA
LONGSHORE DIVISION, UNIT 60,               OPINION
              Defendant-Appellee.


      Appeal from the United States District Court
               for the District of Alaska
      John W. Sedwick, District Judge, Presiding

               Argued and Submitted
          May 21, 2013—Anchorage, Alaska

                  Filed July 12, 2013

   Before: A. Wallace Tashima, Richard C. Tallman,
         and N. Randy Smith, Circuit Judges.

              Opinion by Judge Tallman
2           AMERICAN PRESIDENT LINES V. ILWU

                           SUMMARY*


                            Labor Law

    The panel reversed the district court’s dismissal for lack
of statutory standing of an employer’s action seeking
damages under § 303 of the Labor Management Relations
Act for unfair labor practices allegedly committed by a union
at arbitration in violation of § 8(b)(4)(ii)(A) and (B) of the
National Labor Relations Act, and remanded.

    The panel held that, even though the employer did not
exhaust a petition to vacate the arbitration award under § 301
of the Act, nothing in § 303 precluded the employer’s action
for damages. The panel held that, whether it considered the
employer as either a neutral or primary employer, the
employer sufficiently alleged that it had suffered damages by
reason of the union’s alleged unfair labor practices. The
panel held that the employer had satisfied every statutory
requirement to establish standing under § 303.


                            COUNSEL

Philip L. Ross (argued), Littler Mendelson, P.C., San
Francisco, California; Douglas S. Parker, Littler Mendelson,
P.C., Anchorage, Alaska, for Plaintiff-Appellant.

Robert S. Remar (argued), Eleanor I. Morton, and Emily M.
Maglio, Leonard Carder, LLP, San Francisco, California, for
Defendant-Appellee.

    *
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              AMERICAN PRESIDENT LINES V. ILWU                         3


                               OPINION

TALLMAN, Circuit Judge:

    Section 303 of the Labor Management Relations Act1
(“LMRA”) provides a judicial forum to pursue damages
resulting from certain unfair labor practices2 committed by a



 1
     Section 303 provides:

          (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) of this
          section 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 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.

29 U.S.C. § 187.
  2
    Section 8(b)(4)(ii) of the National Labor Relations Act (“NLRA”)
provides that it shall be an unfair labor practice for a union to:

          threaten, coerce, or restrain any person engaged in
          commerce or in an industry affecting commerce, where
          in either case an object thereof is—

          (A) forcing or requiring any employer or self-employed
          person to join any labor or employer organization or to
4            AMERICAN PRESIDENT LINES V. ILWU

union. In rare cases, the union can commit a predicate unfair
labor practice through its conduct in an arbitration
proceeding. The plaintiff employer’s claim requires us to
resolve whether Section 303 permits an action challenging the
union’s conduct at the arbitration when the plaintiff has
admittedly failed to challenge the arbitration award itself in
court under Section 301 of the LMRA, 29 U.S.C. § 185.

    The defendant union maintains that as a matter of policy,
the interest in the finality of arbitration proceedings should
require plaintiffs in these rare cases to first exhaust a petition
to vacate the arbitration award before they can claim Section
303’s remedy. But in the face of a statutory right to pursue
damages, we cannot place additional obstacles to enforcing
that right without congressional authorization. Because
nothing in Section 303 precludes this action, even without
exhausting a petition to vacate, we reverse the district court’s
dismissal for lack of statutory standing.




         enter into any agreement which is prohibited by
         subsection (e) of this section;

         (B) forcing or requiring any person to cease using,
         selling, handling, transporting, or otherwise dealing in
         the products of any other producer, processor, or
         manufacturer, or to cease doing business with any other
         person, or forcing or requiring any other employer to
         recognize or bargain with a labor organization as the
         representative of his employees . . . .

29 U.S.C. § 158(b)(4)(ii).
          AMERICAN PRESIDENT LINES V. ILWU                5

                             I

                             A

    This case places the courts in the middle of a long-
standing dispute between plaintiff American President Lines,
Ltd. (“APL”), and the defendant, the International Longshore
and Warehouse Union (“the ILWU”), over who may claim
certain longshore work handling cargo at the Port of Seward,
Alaska.

    APL operates ocean-going container ships and marine
terminals involved in transporting cargo throughout the
world, including in and out of Alaska. The ILWU represents
longshore workers in specified Alaskan ports, including the
Port of Seward on the Alaskan mainland. APL and one other
steamship operator, Horizon Lines, form the multi-employer
bargaining group called the Alaska Maritime Employers
Association (“AMEA”), which is a signatory to the All
Alaska Longshore Agreement (“AALA”). The AALA is a
collective bargaining agreement covering dockside activity
directed by the employers that applies to all ILWU longshore
workers in all covered ports in Alaska.

    Under the AALA, APL has traditionally used ILWU-
represented longshore workers in Dutch Harbor, APL’s deep
water port at the tip of the Aleutian Islands and its main
Alaskan cargo handling location. Because of their size,
APL’s deep draft, ocean-going cargo vessels cannot call at
small ports in remote areas of Alaska, and APL does not own
or operate in Alaska its own tender vessels, such as barges,
that can operate in these ports. So APL enters into
connecting carrier agreements with local barge operators to
bring export product, usually containers of frozen fish, for
6          AMERICAN PRESIDENT LINES V. ILWU

APL customers from Alaskan mainland ports to the Dutch
Harbor terminal.

    This dispute was triggered by a separate carrier agreement
with a barge company, Samson Tug & Barge, which operates
out of Seward. In 2004, APL contracted with Samson to
move APL containers between Seward and Dutch Harbor.
Under the agreement, APL employed ILWU longshore
workers to load empty cargo containers onto Samson barges
in Dutch Harbor. When the barges reach Seward the
containers are off-loaded onto Seward’s public dock. APL’s
customers then fill the empty containers with their product.
Once filled, the containers are loaded back onto Samson’s
barges, which then transport the product back to Dutch
Harbor—where they are off-loaded by ILWU-represented
longshore workers and onto APL’s container ships.

    The crux of the dispute is that Samson employees—who
are not ILWU-represented laborers—perform all of the cargo
handling of APL containers in Seward. Samson employees
are represented by a different union, the Marine Engineers’
Beneficial Association (“MEBA”). The ILWU balked at this
arrangement and argued that the AALA requires APL to give
the Seward work to members of the ILWU.

    The ILWU believed that APL had violated Section 7.641
of the AALA (“the Work Preservation Clause”), which
provides:

       In further consideration of the terms and
       conditions set forth in this Contract, the
       Employer hereby assures the Union that it will
       use its best efforts and act in good faith in
       preserving as much as possible all of the work
          AMERICAN PRESIDENT LINES V. ILWU                 7

       covered by this Contract for the registered
       work force.

It is undisputed that prior to 2003, the ILWU had performed
the same longshore work at Seward for a different employer,
North Star Stevedore, when North Star was a signatory to the
AALA. The parties dispute, though, whether any of the
Seward work previously performed for North Star involved
APL containers. Compare Appellant’s Opening Brief at 13
(“APL first penetrated the Seward market in July 2004.”) with
Appellee’s Answering Brief at 8 (“Before 2004 ILWU Alaska
Longshore Division-represented longshore workers loaded
and discharged APL containers at the Port of Seward . . . for
North Star.”). MEBA has disclaimed any right to this work.

    The ILWU brought a grievance against APL for breach of
the collective bargaining agreement, claiming that APL failed
to preserve the Seward work for members of the ILWU. At
the time, however, a new bargaining agreement was being
negotiated, and the parties ultimately came to terms. In a
Letter of Understanding incorporated in the renegotiated
AALA, APL agreed that it “[p]robably will cease doing
business in Seward with Samson.”

    APL attempted to contract with Horizon Lines, an AMEA
member that uses trucks to move cargo from Seward to
Anchorage and then transports containers to Dutch Harbor on
ships. But Horizon would not agree to take on 100 percent of
APL’s Seward cargo, so APL continued to use Samson, and
its MEBA-represented employees, to handle its Seward
customers’ containers.

   In 2006, the local Seward constituent of the ILWU (“Unit
60”) filed a grievance over APL’s refusal to have ILWU-
8          AMERICAN PRESIDENT LINES V. ILWU

represented workers perform the off-loading and loading of
APL containers in Seward. The grievance alleged that the
displacement of ILWU longshore workers in Seward violated
the AALA.

                              B

    The AALA has a two-step arbitration procedure for
resolving grievances. The grievance first goes before an
Alaska Arbitrator. Once the Alaska Arbitrator reaches a final
decision, and the award has been implemented, the parties
can appeal to the Coast Arbitrator in California for a final
determination.

     In September 2006, the Alaska Arbitrator conducted the
initial arbitration based solely on the parties’ written
submissions. The arbitrator determined that: (1) “[t]he work
in dispute was previously performed by APL using a
stevedore signatory to the AALA as required by the
agreement prior to the work being performed by Samson
employees;” and (2) “APL . . . conditions and controls the
hiring of Samson in violation of the agreement with the
ILWU.” The Alaska Arbitrator ordered APL to assign the
Seward work to Unit 60. The Alaska Arbitrator also
determined, as a matter of labor law, that the union was not
violating Section 8(b)(4) of the National Labor Relations Act
by demanding the work.

    APL appealed the decision to the Coast Arbitrator, who
did not initially rule on the merits. The Coast Arbitrator
remanded the matter and instructed the Alaska Arbitrator to
hold a full evidentiary hearing and to refrain from making any
conclusions regarding the legal impact of its decision. The
Coast Arbitrator ruled that the initial Alaska Arbitrator
            AMERICAN PRESIDENT LINES V. ILWU                       9

decision would remain in effect in the interim. APL never
gave the work to the ILWU; instead, it paid “in lieu of” time
cards to the ILWU, which essentially pays the union at
contract rates for all hours of longshore work performed by
Samson employees in Seward.

    The Alaska Arbitrator, after a full hearing, then issued
a new decision in which he once again required that the
ILWU receive APL’s Seward longshore work. He found that:
(1) “[t]he work that has historically been performed,
now has been agreed is longshore work;” and (2)
“[l]oading/discharging containers from Samson barges was
work previously performed by the ILWU . . . through a
signatory stevedore, North Star.” The arbitrator stated that
APL could give the work to ILWU’s Unit 60 in several ways,
including: (1) Samson could sign a compliance agreement
with the AALA and hire the ILWU directly; (2) APL could
have its own stevedore company—which does not currently
operate in Alaska—perform the work; or (3) the work could
be done using a company that will work with the ILWU in
Seward. “Obviously this is an Employer decision,” the
Alaska Arbitrator wrote, “but in any event, [ILWU] longshore
personnel must perform the work.” The arbitrator ordered
APL to give the work to Unit 60, and in the interim pay “in
lieu of” time cards for longshore work Samson performed
with APL containers.

    APL refused to give the work to the ILWU, contending
that the arbitrator’s interpretation of the Work Preservation
Clause rendered it a “hot cargo” agreement3 prohibited by



  3
    A “hot cargo” agreement exists when a union and employer agree to
have the employer cease handling the goods of another or cease doing
10            AMERICAN PRESIDENT LINES V. ILWU

Section 8(e) of the NLRA.4 So APL continued to pay “in lieu
of” time cards. It attempted to appeal again to the Coast
Arbitrator. The ILWU, though, objected and claimed that the
Alaska Arbitrator’s decision would not be “implemented”—
as required for an appeal—until APL actually gave the
Seward work to the ILWU. The Alaska Arbitrator agreed
with the union.

     The Coast Arbitrator refused to consider the second
appeal: “[T]he Alaska Arbitrator’s determination concerning
implementation of assigning the work in question to the
ILWU, rendered as part of his retained jurisdiction, is
required to be followed as a precondition to appealing his
decision in this case.” The Coast Arbitrator refused to
comment on the merits and made it clear that APL was free
to file an unfair labor practice charge with the National Labor
Relations Board if APL believed compliance with the
arbitration award would cause it to violate the NLRA.


business with any other person. 29 U.S.C. § 158(e). See also 48A Am.
Jur. 2d Labor and Labor Relations §§ 1813–32.
 4
     Section 8(e) provides:

          It shall be an unfair labor practice for any labor
          organization and any employer to enter into any
          contract or agreement, express or implied, whereby
          such employer ceases or refrains or agrees to cease or
          refrain from handling, using, selling, transporting or
          otherwise dealing in any of the products of any other
          employer, or to cease doing business with any other
          person, and any contract or agreement entered into
          heretofore or hereafter containing such an agreement
          shall be to such extent unenforceable and void.

29 U.S.C. § 158(e).
           AMERICAN PRESIDENT LINES V. ILWU                 11

                              C

    APL proceeded to file its charge with the NLRB alleging
that the arbitrator’s award violated Section 8(e) of the NLRA,
and that the ILWU violated Sections 8(b)(4)(ii)(A) and (B)
when it pursued its interpretation of the Work Preservation
Clause at arbitration. The NLRB General Counsel’s Division
of Advice investigated the charges and issued an “Advice
Memorandum” advising the NLRB Regional Office in Seattle
to dismiss the charges because they lacked merit. The NLRB
Regional Office dismissed the charges without an evidentiary
hearing, and the Central Office of Appeals denied APL’s
appeal from that dismissal.

                              D

    APL then filed this action in the District of Alaska under
Section 303 of the LMRA. 29 U.S.C. § 187. It asserted that
the ILWU violated Sections 8(b)(4)(ii)(A) and (B) of the
NLRA when it advanced an interpretation at arbitration that
forced APL to enter into a “hot cargo” agreement and to
cease doing business with Samson. It sought reimbursement
of the wages it had paid the ILWU through “in lieu of” time
cards. The ILWU, in its answer, raised nine different
affirmative defenses but never challenged APL’s standing.
The ILWU then moved for summary judgment on four
grounds, none of which challenged APL’s standing. The
district court, though, sua sponte ordered the parties to brief
whether APL had Article III and Section 303 standing.

     After receiving supplemental briefing, the district court
held that APL had Article III standing but lacked statutory
standing under Section 303(b) because “APL is attempting to
litigate issues—whether the Seward work was fairly
12         AMERICAN PRESIDENT LINES V. ILWU

claimable by ILWU and whether APL had a right to control
that work—that have already been decided through
arbitration which the parties agreed would be binding.” It
continued: “Allowing APL to proceed under § 303 would
undermine the national labor policy in favor of arbitration.”
The lawsuit was dismissed.

   APL timely appealed.         We have jurisdiction under
28 U.S.C. § 1291.

                               II

    APL brought this action as the last resort in its struggle to
avoid giving its Seward work to the ILWU. It has twice
failed to convince an arbitrator that it has no duty under the
AALA to give this work to the ILWU; it has failed to
convince the NLRB General Counsel that the ILWU’s
interpretation of the AALA has turned the agreement into a
“hot cargo” agreement; and it has also failed to file a timely
petition to vacate the arbitration award. But none of these
failures deprives APL of standing to bring this action under
Section 303.

    We think the district court conflated the merits of this
case with whether APL has statutory standing. As we read
the statute, nothing in Section 303 bars an employer—
whether primary or neutral—from seeking compensatory
damages for a union’s alleged unfair labor practice, even if
that practice occurs during arbitration. We reverse and
remand so that the district court may consider the merits of
APL’s claim, however questionable they may be in light of
the arbitrator’s adverse findings.
             AMERICAN PRESIDENT LINES V. ILWU                         13

                                   A

    Section 303 of the LMRA provides a judicial forum for
obtaining financial compensation for a union’s commission
of an unfair labor practice. See 29 U.S.C. § 187. The statute
establishes that it “shall be unlawful” for a union “to engage
in any activity or conduct defined as an unfair labor practice
in” Section 8(b)(4) of the NLRA. Id. § 187(a); see also id.
§ 158(b)(4). Then it quite broadly confers standing to
“[w]hoever shall be injured in his business or property by
reason o[f]”5 any such unfair labor practice. Id. § 187(b).

    We have held that Section 303’s requirement that an
injury occurs “by reason of” a Section 8(b)(4) violation
“imposes standing limitations.” Fulton v. Plumbers &
Steamfitters, 695 F.2d 402, 405 (9th Cir. 1982). In Fulton,
we held that a court must determine whether Section 303
standing exists by looking to: (1) the nexus between the
injury and the statutory violation; and (2) the relationship
between the injury alleged and the forms of injury that
Congress sought to prevent or remedy by enacting the statute.
Id. To determine the relationship between the injury and the
statutory violation, we examine whether the plaintiff “was
within the target area of the defendant’s illegal practices and
was not only hit, but also aimed at.” Id. at 406 (citation and
internal quotation marks omitted).

    The nature of APL’s two alleged statutory violations and
the alleged injury are important to this inquiry. Under
Section 8(b)(4)(ii)(A), a union may not force or require an
employer to enter into a “hot cargo” agreement prohibited by

 5
   Because of a typographical error, the statute actually reads “by reason
or.” 29 U.S.C.A. § 187 n.1.
14         AMERICAN PRESIDENT LINES V. ILWU

Section 8(e). See 29 U.S.C. §§ 158(b)(4), 158(e). A “union
signatory” clause, which prohibits the employer from
subcontracting with all employers who are not union
signatories, is one such agreement. NLRB v. Hotel & Rest.
Emps. & Bartenders’ Union, 623 F.2d 61, 67 (9th Cir. 1980)
(“[I]t is well settled that union signatory clauses violate
section 8(e).”). APL posits that the ILWU’s interpretation of
the AALA, accepted by the arbitrator, makes the Work
Preservation Clause a “hot cargo” agreement because APL
may only work in Seward with subcontractors who are
signatories to the AALA.

    Second, under Section 8(b)(4)(ii)(B), a union may not
force an employer to cease doing business with other entities
who do not employ the union’s members. Under this section,
the union may seek to preserve “fairly claimable” work that
the employer has a “right to control,” but it may not exert its
influence to acquire new work. APL argues that the ILWU’s
interpretation of the AALA, accepted by the arbitrator, forces
APL to cease doing business with Samson—which does not
use ILWU labor in Seward—without a valid work
preservation justification.

    Because the arbitrator adopted the ILWU’s interpretation
of the AALA at arbitration, APL has paid “in lieu of” time
cards for the work Samson’s MEBA employees have
performed for APL. Therefore, this financial injury is
directly tied to the nature of the alleged statutory violations.

   APL has framed its complaint to position itself as a
neutral employer—which is to say that APL views the
ILWU’s dispute as primarily with Samson regarding the
Seward work. The law establishes that even neutral
employers have statutory standing to sue a union for alleged
           AMERICAN PRESIDENT LINES V. ILWU                  15

violations of Section 8(b)(4).    See Charvet v. Int’l
Longshoremen’s Ass’n, 736 F.2d 1572, 1576 (D.C. Cir. 1984)
(citing Int’l Longshoremen’s Ass’n v. Allied Int’l, Inc.,
456 U.S. 212 (1982)).

     But even if we were to categorize APL as a primary
employer—recognizing that the ILWU’s dispute lies
primarily with APL— “it is generally understood that an
action under section 303(b) may be brought . . . by the
primary employer as well. Primary employers have standing
to sue under section 303(b) because they are the direct objects
of the union’s unlawful activity.” Charvet, 736 F.2d at 1576
(citing Mead v. Retail Clerks Int’l Ass’n, Local Union No.
839, 523 F.3d 1371, 1375 n.5 (9th Cir. 1975)). Because
Section 8(b)(4) imposes a duty on an employer to resist
agreeing to “hot cargo” agreements, “[i]t is consistent with
congressional purposes, and only fair, that an employer
injured as a result of such obligatory resistance in the face of
coercion prohibited by section 8(b)(4)(ii)(A) should have a
remedy under section 303.” Mead, 523 F.2d at 1375–76.
There is no question that the ILWU has directed its activities
during arbitration at APL, the only other party to that
proceeding.

    Therefore, whether we consider APL as either a neutral or
primary employer, we conclude that it has sufficiently alleged
that it has suffered damages “by reason of” the ILWU’s
alleged unfair labor practices. We hold that APL has satisfied
every statutory requirement to establish standing under
Section 303.
16         AMERICAN PRESIDENT LINES V. ILWU

                              B

    We are left to determine whether APL’s failure to file a
petition to vacate the Alaska Arbitrator’s award should have
any effect on its ability to bring this Section 303 action
challenging the union’s conduct at that arbitration. The
district court believed so, but we disagree.

     “Ordinarily, a party opposing an arbitration award must
move to vacate the award or be barred from further legal
action.” Sheet Metal Workers’ Int’l Ass’n, Local No. 252 v.
Standard Sheet Metal, Inc., 699 F.2d 481, 482 (9th Cir.
1982). Federal circuit courts have repeatedly dismissed
attempts to undermine an arbitrator’s award if the moving
party failed to file a petition to vacate. In Sheet Metal
Workers and in Brotherhood of Teamsters & Auto Truck
Drivers, Local No. 70 v. Celotex Corp., 708 F.2d 488, 490
(9th Cir. 1983), we refused to allow parties who failed to file
a Section 301 petition to vacate to later appeal judicial
confirmation of an arbitration award. We have adopted this
rule under the power Congress has given the federal courts to
fashion common law under Section 301 of the LMRA, which
governs collective bargaining agreements. See Textile
Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448,
456 (“[T]he substantive law to apply in suits under § 301(a)
is federal law, which the courts must fashion from the policy
of our national labor laws.”).

    The ILWU seeks to graft this general rule—that a failure
to file a petition to vacate precludes any legal contest of the
award—on to only those Section 303 suits involving union
conduct in an arbitration proceeding. Such a rule would
effectively require a plaintiff, in these rare situations, to
              AMERICAN PRESIDENT LINES V. ILWU                            17

exhaust a Section 301 petition to vacate before the plaintiff
may file a Section 303 claim.

    This rule, though, misunderstands the congressional intent
behind Section 303—which is simply to provide a judicial
forum for plaintiffs to recover the damages a union has
caused them through certain unfair labor practices that are
delineated in Section 8(b)(4) of the NLRA. Importantly, the
Section 8(b)(4) violations that serve as the premise for
Section 303 liability focus on the union’s conduct, not the
result it obtains. The NLRB has repeatedly confirmed that a
union can violate Section 8(b)(4) by advancing an improper
interpretation of a contractual clause at arbitration. See N.Y.
Post, 337 NLRB 608; Long Elevator, 289 NLRB 1095. The
Section 8(b)(4) violation occurs the moment the union
pursues arbitration with an unlawful secondary motive—in
this case, by allegedly attempting to force APL to subcontract
with only those employers who will hire ILWU labor—not if
or when the union succeeds in persuading the arbitrator to
sustain its grievance.

   APL challenges the union’s actions, not the arbitrator’s
decision.6 The arbitration award itself is only relevant in this



  6
    It is for this same reason we reject the ILWU’s attempt to apply the
six-month statute of limitations for a petition to vacate to this lawsuit.
Success on the Section 303 suit may have the collateral effect of
undermining the arbitration, but the action is targeted at the union’s
conduct, not the award itself. We see no reason to upend our consistent
practice of applying the statute of limitations for actions “upon a liability
created by statute” to Section 303 suits. See Hyatt Chalet Motels, Inc. v.
Carpenters Local 1065, 430 F.2d 1119, 1121 (9th Cir. 1970). In Alaska,
the limitations period is two years. See Alaska Stat. § 09.10.070(a) (“[A]
person may not bring an action . . . upon a liability created by statute . . .
18          AMERICAN PRESIDENT LINES V. ILWU

case to prove that the union’s conduct actually caused APL’s
damages. Although this lawsuit could effectively undermine
the arbitrator’s award, this would only occur because the
union itself allegedly committed an unfair labor practice in
obtaining the award.

     The ILWU essentially proposes that we fashion a rule that
would place an additional obstacle to Section 303 relief on a
small segment of plaintiffs, those who: (1) suffered damages
because of an alleged Section 8(b)(4) violation that occurred
during an arbitration; (2) lost the arbitration; and (3) failed to
file a petition to vacate that arbitration. It must propose such
a narrow rule because it knows that a union’s conduct at
arbitration can have an effect on other employers who may
well be injured—such as Samson in this case—but who have
no role in the arbitration proceeding and therefore cannot
petition to vacate the award. The ILWU has proffered no
statutory language or legislative history that would suggest
Congress intended to so finely parse out those who could
invoke Section 303’s remedy. When Congress provides a
plaintiff with a right of action, we are not free to place
additional impediments to exercising that right of action
without congressional instruction. See City of Milwaukee v.
Illinois, 451 U.S. 304, 317 (1981) (“We start with the
assumption that it is for Congress, not federal courts, to
articulate the appropriate standards to be applied as a matter
of federal law.”).

    It may seem unfair to allow APL an opportunity to
essentially render toothless an arbitration award it failed to
petition to vacate. But the NLRB, under the power Congress


unless the action is commenced within two years of the accrual of the
cause of action.”).
           AMERICAN PRESIDENT LINES V. ILWU                  19

gave it, has interpreted Section 8(b)(4) to prohibit certain
conduct during an arbitration, and Congress has provided
employers like APL with the Section 303 remedy for
damages caused by Section 8(b)(4) violations arising from
union misconduct in such proceedings. In these atypical
Section 303 cases involving arbitrations, we reject an
exhaustion requirement that would frustrate that
congressional intent.

                               C

    We readily dispatch any notion that the NLRB General
Counsel’s dismissal of APL’s unfair labor practices charge
precludes APL’s Section 303 suit. It has long been the case
that a Section 303 lawsuit and the pursuit of administrative
enforcement of Section 8(b)(4) coexist as independent
avenues for a party wronged by a union’s unfair labor
practices. Int’l Longshoremen’s & Warehousemen’s Union
v. Juneau Spruce Corp., 342 U.S. 237, 243–44 (1952).
“[A]ction under section 303” is “not dependent on prior
administrative determinations.” Plumbers & Fitters, Local
671 v. Matt J. Zaich Constr. Co., 418 F.2d 1054, 1056 (9th
Cir. 1969) (citing Juneau Spruce, 342 U.S. 237).

     Although some courts have applied collateral estoppel to
issues the NLRB has decided in a fully litigated enforcement
proceeding, see, e.g., Wickham Contracting Co. v. Bd. of
Educ., 715 F.2d 21 (2d Cir. 1983), the federal courts have
unanimously held that the mere dismissal of a charge by the
General Counsel does not preclude a Section 303 action. See
Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332, 334–35
(2d Cir. 1974) (“[T]he decision of the General Counsel not to
file a complaint on [the plaintiff’s] behalf has no res judicata
effect, as it is not a final judgment on the merits.”); Aircraft
20         AMERICAN PRESIDENT LINES V. ILWU

& Engine Maintenance & Overhaul, Bldg., Constr., Mfg.,
Processing & Distrib. v. I.E. Schilling Co., 340 F.2d 286, 289
(5th Cir. 1965) (“Surely, the mere refusal by the general
counsel to issue a complaint is not res judicata and can not
constitute a collateral estoppel.”).

   We will not belabor the point. Although the district court
may find the NLRB’s reasoning persuasive when considering
APL’s Section 303 claim on the merits, the General
Counsel’s mere dismissal of a charge—without even a formal
hearing—does not preclude this suit.

                              III

   Conceding without contesting that APL has standing, the
ILWU nonetheless implores us to affirm the district court’s
dismissal on the merits. We decline their request.

    “It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976). Whether APL’s
claim may survive summary judgment on its merits remains
“an issue not passed upon below.” Id.; see also Dodd v. Hood
River County, 59 F.3d 852, 863–64 (9th Cir. 1995) (refusing
to consider the merits after reversing the district court’s
dismissal for lack of ripeness). The ILWU suggests that even
though the district court phrased its dismissal order in terms
of standing, the court in reality considered and dismissed the
case on the merits. The district court’s order, though, clearly
stated that “APL’s claim is DISMISSED for lack of standing
             AMERICAN PRESIDENT LINES V. ILWU                           21

to proceed under Section 303(b).”7 It is clear that the district
court did not consider its judgment to be on the merits.

    APL showed the requisite standing to bring its timely
action. We remand to the district court so that it may
properly consider APL’s claim on the merits. On remand, the
district court must address both of the unfair labor practices
alleged by APL and determine whether: (1) the ILWU
violated Section 8(b)(4), and (2) if so, whether the union’s
conduct caused APL’s alleged damages.

                                    IV

    APL has alleged that the ILWU committed an unfair labor
practice, targeted directly at APL, during the arbitration of
their dispute concerning longshore work at the Port of
Seward. APL was not required to exhaust a petition to vacate
the arbitration award to establish standing under Section 303.
Absent clear congressional intent, we will not erect new
obstacles to pursuing damages under Section 303.

    The district court’s judgment is VACATED, and the case
is REMANDED so that the district court may consider the
merits of APL’s claim. Each party shall bear its own costs.




 7
    If the district court believed that the Alaska Arbitrator’s decision had
already determined the legal issues in this case, it did so erroneously. As
the Coast Arbitrator correctly noted, the Alaska Arbitrator was only
permitted by the AALA to make findings of fact. It is up to the district
court to determine whether to defer to or uphold those findings and, if it
does, what effect those factual findings have on APL’s legal arguments.
