Exhibit      -..D 
aw i
,Pon Commission Reg
1      Meeting oilWM'l'
To:   Port of Seattle Commissioners
Re:   Proposed Worker Retention Policy / Commission Meeting December 13, 2011
From: Filo Foods, LLC and BF Foods, LLC, Concessionaires at SeaTac
Prepared by, Cecilia A. Cordova
Connell Cordova Hunter & Gautschi pllc
Attorneys for Filo Foods, LLC and BF Foods, LLC
Date:  December 11, 2011

MEMO SUPPORTING THE AVIATION CONCESSIONS PROGRAM'S
RECOMJVIENDATIONS
REGARDING WORKER RETENTION POLICY

The Port of Seattle's Worker Retention proposal is not legally supportable. It would
impermissibly interfere with a tenant's federally protected rights to assign work to their
own employees. Additionally, it would:

0  Be an act of Contempt of Court, by the Port and the Commissioners, for
violating the 2000 CityIce permanent injunction.
0  Subject the Port and the Commissioners to a Section 1983 claim.

0  Require the Port to pay the legal fees of any tenant challenging the worker
retention policy.

The proposal's impermissible terms require the following:

0     Incoming prime concessionaires will recruit their new employees from the
employee pool compiled of all non-management employees of the
concessionaires whose leases are set to expire and who wish to continue
working in the concession program at SeaTac (the "Pool").
0     A written explanation of why workers are incompatible with serving the
market in which the company competes must be provided to the Port in
order to hire employees outside of the Pool.
0     Employees hired from the Pool must be retained for up to 180 days (unless
the concessionaire has grounds to terminate such employee for cause
pursuant to the new concessionaire's employment policies).

Worker Retention Policy is prohibited by 2000 Permanent Injunction

In 2000, the US. District Court, permanently enjoined the Port of Seattle

"from any conduct that interferes, either by the Port's actions or inactions, with the
exercise of the federally protected rights of ...third parties using Port facilities to
assign work to their own employees... this injunction prohibits the Port from

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Filo Foods, LLC and BF Foods, LLC
Memo Opposing Proposed POS Worker Retention Policy 12/11/2011
Cecilia Cordova / Connell Cordova Hunter & Gautschi pllc

...adopting any  policy or other requirement that interferes with those federally
protected rights."l

Contempt of Court

The Port may be held in contempt of court for violating the CityIce permanent injunction.
Approval of a worker retention policy requiring tenants to retain a work force or hire
from a pool of employees will be a deliberate action violating the permanent injunction
prohibiting any agreement or adoption of any policy or other requirement interfering with
a tenant's federally protected right to "assign work to their own employees."

Section 1983 action: Government Interference with Federally-Protected Rights.

0     Section 1983 provides a federal remedy for the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, including
violations of federal statutory as well as constitutional rights."
0     It provides a remedy against all forms of ofcial violation of federally
protected rights.
0     The small businesses at SeaTac would have a Section 1983 action against
the Port of Seattle if the proposed worker retention policy is enacted.

Act of Coercion: Requiring Termination for Cause

The Worker Retention proposal imposes labor terms and obligations upon the tenant
which the tenant did not bargain for.

In the City Ice v Port ofSeattle Order, Judge Rothstein held, "The Port cannot wield
public power to coerce private parties into agreements they never negotiated..."2

By requiring a tenant to create written policies as grounds for termination, the Port
impermissibly coerces the concessionaire into an agreement it never negotiated.
Washington recognizes "the general rule that unless an employee has a contract for a
denite term of employment, the employee may be discharged at any time without cause
and without recourse."

Misuse of Commission Authority

Section 1983 gives persons deprived of a federal right a remedy against government
ofcials who, under color of state law, deprive them of their federal rights.


I
See Order and Consent Judgment: Citylce v Port ofSeattle, US. District Court (C99-1647R)
2
See Order Granting Plaintiff's Motion for Summary Judgment and Denying Defendant's Motion for
Summary Judgment. CityIce v Pan ofSeattle, US. District Court (C99-1647R)
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Memo Opposing Proposed POS Worker Retention Policy 12/11/2011
Cecilia Cordova / Connell Cordova Hunter & Gautschi pllc

The US. Supreme Court has held that "misuse of power, possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state law,
is action taken "under color of" state law.

Individual liability for Port Commissioners under Section 1983

To obtain a favorable  1983 verdict against a Port Commissioner, a tenant must show
rst, that the worker retention policy violated its federal right, and second, that the
Commissioners' conduct here was irrational or invidious.

Government ofcials can be individually liable for civil damages under  1983 if:

1)    Various employees advised the ofcial against taking action which would
constitute a denial of someone' s constitutional or federal rights;
2)    The plaintiffs consistently asserted their rights would be violated by the
government ofcial' 5 proposed action, thus putting the ofcial on notice it
intended to pursue those rights; and
3)    The ofcial's action clearly violates plaintiff' s established rights, which
the official reasonably should be aware of.

Here, Port Commissioners can be individually liable under  1983 if they take action to
adopt a worker retention policy:

1)    Port employees informed the Port Commissioners that adoption of a
worker retention policy, such as one advocated by the Unions, would
subject the Port to a lawsuit for violating the CityIce injunction prohibiting
the Port's interference with a third parties' right to assign work to their
own employees. According to the November 28, 2011 memo from Mark
Reis, Managing Director, Aviation Division, and Deanna Zachrisson,
Manager, Aviation Concessions Business:
a)    "The Port's Legal Department has evaluated the various proposals
that the Port adopt a labor harmony and/or a worker retention
policy. Staff believes that there is a signicant legal risk that the
courts will nd the adoption of a worker retention and/or labor
harmony policy, as proposed by HERE/UFCW, a violation of
federal law and an act of contempt of the permanent injunction
issued by Judge Barbara Rothstein in 2000 (Citylce Cold Storage
Company v. Port ofSeattle)."
b)    The Port consulted outside legal counsel, with experience as a trial
attorney with the National Labor Relations Board, on this issue.
He agreed with the Port's legal counsel of the legal risk associated
with a labor harmony and/or worker retention policy.

3
Monroe v. Pape, 365 US. 167, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1960), quoting United States v. Classic,
313 US. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).
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Memo Opposing Proposed POS Worker Retention Policy 12/11/2011
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c)    The Commission was advised against adopting a labor harmony
and/or worker retention policy in both 2010 and 2011.
d)    Two prior legal lawsuits against the Port for similar actions
interfering with a tenant's rights to assign work to their own
employees in CityIce and in the Judge Pechman's court order in
2005 in the Flying Eagle Espresso.case.
e)    High likelihood that a Port-adopted worker retention policy would
be challenged in court. Staff specically cited our July 26, 2011
testimony in front of the Commission representing that DBE
Concessionaires at SeaTac would have grounds for a lawsuit if the
Port adopted a worker retention policy requiring concessionaires to
retain workers of previous concessionaires for 180 days.
f)     "The Airport should not adopt any worker retention or labor
harmony policy that carries signicant legal risk of violating the
permanent federal injunction or federal law."
2)    Moreover, DBE concessionaires have consistently asserted that their
federal rights would be violated if the Port adopted a worker retention
policy, thus putting the Port and the Port Commissioner on notice that they
would pursue their rights.
3)    The CityIce permanent injunction clearly prohibits the Port from violating
a third parties' federal right to "assign work to their employees."

N0 Qualified Immunity Defense for Commissioners.

Normally, Commissioners would be protected from actions taken as Commissioners
under the Qualied Immunity defense. However, the US. Supreme Court denes the
limits of this defense by disallowing "license to lawless conduct."

There is clear public interest in deterring the unlawful conduct of government ofcials.
Unlawful conduct is determined by a Supreme Court test, focusing on the "objective legal
reasonableness of an ofcial's acts."

According to the test, if the Commissioner could be expected to know that adopting a
worker retention policy would violate a tenant's federal rights, then the Commissioner
"should be made to hesitate; and a person who suffers injury caused by such conduct may
have a cause of action."

Thus, to obtain a favorable verdict against a Commissioner, a tenant must show:

0  First, that the worker retention policy violates a federal right. According to the
Citylce permanent injunction, it is clear a worker retention policy would violate a
tenant's federal right.
0  Second, that the Commissioners' conduct here was irrational or invidious. This

can be shown, since Commissioners have been put on notice by both Port staff
and concessionaires that adoption of a worker retention policy would violate a

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Filo Foods, LLC and BF Foods, LLC
Memo Opposing Proposed POS Worker Retention Policy 12/11/2011
Cecilia Cordova / Connell Cordova Hunter & Gautschi pllc

tenant's federal rights, specically the right to assign work to their own
employees.

Adoption of a worker retention policy is clearly irrational, because the CityIce order
permanently enjoins Port Commissioners from engaging in such action which
interferes with the federal rights of a third party, using Port facilities, to assign work
to their own employees.

Conclusion

We support the Port Aviation Division's November 28, 2011 memorandum to the Port's
CEO, regarding Aviation Concessions Program Principles and Practices. This memo
recommends that the Commission not adopt an explicit worker retention policy. To
reiterate Mark Reis and Deanna Zacchrinson' s reasoning in the memo, a worker retention
policy:

0  Signicantly increases the Port's legal risk of violating both federal law and the
permanent federal injunction against the Port (CityIce);

0  Would likely be challenged in federal court by concessionaires;


0  Would reduce the likelihood of small and local businesses as concessionaires;


0  Is opposed by the majority of concessions stakeholders (incl. airlines, current
independent business, prospective local business, and small/ACDBE business);

0  Would increase management obligations of the Port and cause uncertainty
regarding appropriate regulation of such a policy; and

0  Is unnecessary to protect the continued employment opportunities of capable
concessions workers.

Moreover, as Port legal staff accurately warns, under Section 1983, attorney fees would
likely be awarded to any concessionaire challenging a worker retention policy.





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Filo Foods, LLC and BF Foods, LLC
Memo Opposing Proposed POS Worker Retention Policy 12/11/2011
Cecilia Cordova / Connell Cordova Hunter & Gautschi pllc