Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

International Longshore & Warehouse Union v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 29, 2018

International Longshore & Warehouse Union, Petitioner
National Labor Relations Board, Respondent

          Argued March 19, 2018

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Robert S. Remar argued the cause for the Petitioner. Eleanor Morton and Emily M. Maglio were with him on brief.

          Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for the Respondent. Richard F. Griffin, Jr., General Counsel at the time the brief was filed, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney, were with her on the brief.

          David A. Rosenfeld was on the brief for Intervenors International Association of Machinists and Aerospace Workers, et al., in support of the Respondent and Cross-Petitioner.

          Before: Henderson, Kavanaugh and Katsas, Circuit Judges.


          Karen LeCraft Henderson, Circuit Judge

         The post-World War II growth in international maritime shipping has spawned a history of labor disputes along the West Coast of the United States between the Petitioner, the International Longshore and Warehouse Union (ILWU), and the Intervenor, the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM). The battles between the two unions have played out in federal court, see Int'l Ass'n of Machinists & Aerospace Workers v. NLRB, 253 Fed.Appx. 625 (9th Cir. 2007), and before the National Labor Relations Board (NLRB or Board), see Pac. Mar. Ass'n, 256 NLRB 769, 772 (1981). This case adds a chapter to the unions' protracted disputes.

          In 2002, the Pacific Crane Maintenance Company (PCMC) began using a subsidiary, [1] the Pacific Marine Maintenance Company (PMMC) (together, Employer or PCMC/PMMC), to provide loading and unloading services to Maersk, a large shipping company, at three West Coast ports: Oakland and Long Beach, California and Tacoma, Washington. PCMC created PMMC to perform the Maersk contract because Maersk had purchased the terminal operations from a company named Sealand, which, as a condition of sale, required Maersk to recognize IAM as the union representative for the employees performing maintenance and repair (M&R) work at the three ports. Because PCMC was already bound by a collective bargaining agreement (CBA) with ILWU, it could not recognize IAM itself. Thus, from 2002 to 2006, PCMC continued to recognize ILWU while its subsidiary, PMMC, recognized IAM as the representative of the M&R employees at the Oakland and Tacoma ports.[2]

         In late 2004, in an effort to drive down costs, Maersk requested bids from both PCMC and PMMC for M&R work at the Oakland and Tacoma ports. PCMC responded with the lower bid and Maersk accepted it. As a result of losing the Oakland and Tacoma M&R work, on March 30, 2005, PMMC terminated its 100 M&R employees and shut down its operations completely. The next day, PCMC hired 76 of the former PMMC mechanics to do the same M&R work and hired six additional former PMMC mechanics shortly thereafter. As a result of the change, however, PCMC ceased recognizing IAM and began recognizing ILWU as the former PMMC M&R employees' union. IAM responded with claims of unfair labor practices and the NLRB General Counsel brought charges against ILWU, PMMC and PCMC under the National Labor Relations Act, 29 U.S.C. §§ 151-169 (NLRA or Act). With a few exceptions no longer at issue, the administrative law judge (ALJ) recommended dismissing the charges. The Board disagreed, concluding that the Employer was obligated to bargain with IAM over the termination of PMMC's unit employees and that the Employer's recognition of ILWU was unlawful. Ultimately, PCMC and PMMC settled the claims, leaving ILWU as the sole Petitioner.

         ILWU raises three challenges to the Board's Decision and Order. First, it contends that the Board erred in concluding that the Employer was obligated to bargain with IAM over its decision to shut down PMMC and terminate its workforce. Second, it argues that the Board improperly excluded evidence that the M&R employees merged by accretion into the ILWU West Coast-wide employee bargaining unit. Third, it disputes the propriety of the Board remedy. For the following reasons, we deny ILWU's petition and grant the Board's cross-application for enforcement.

         I. BACKGROUND

         Maersk, and companies like it, transport goods around the world in large container ships packed with 20-foot metal containers. At port terminals, the shipping containers are unloaded by cranes and transported to off-site locations where they are "stripped" and distributed to their final destinations. The inverse process includes "stuffing" containers off-site and eventually loading them onto the cargo ships for export at the terminals. See Joint Appendix (JA) 693, 1218-19. The machinery and the containers used in this process periodically need maintenance and repair. Port-terminal contract repair companies, like the Employer, employ M&R mechanics to ensure the process runs smoothly.

         The Board has previously chronicled the history of ILWU and IAM. See, e.g., Shipowners' Ass'n of the Pac. Coast, 7 NLRB 1002 (1938); Pac. Mar. Ass'n, 256 NLRB 769, 772 (1981). We note, however, that the two unions have different organizational models. In the port-terminal context, IAM represents only M&R mechanics and it usually does so on a local level, dividing its bargaining units either by terminal or by company. This was the case from the 1960s to the early 2000s, when IAM operated as the exclusive union representative for the single-employer, multi-terminal bargaining unit of M&R mechanics at Long Beach, Oakland and Tacoma.

         ILWU is more inclusive. Its bargaining unit is composed of a West Coast-wide group of longshoremen, stevedores, marine clerks, planners and longshore mechanics. A single CBA, the Pacific Coast Longshore and Clerks Agreement (PCL&CA), [3] binds ILWU, on one side, and the Pacific Maritime Association (PMA), a collection of approximately 70 maritime employers along the Pacific Coast (including PCMC), on the other. Pursuant to the PCL&CA, ILWU and

          PMA have established an employment dispatch system that is in effect along the Pacific Coast. The system operates through a series of "halls" that match employees to employers on a flexible basis so that labor can flow to the terminals that need it most. The Employer describes this system as its "lean staffing model." JA 412.

         This chapter of the unions' story began in 1999, when Maersk purchased the Oakland, Tacoma and Long Beach port operations[4] from Sealand. As a condition of the sale, Sealand required Maersk to recognize IAM as the M&R mechanics' union in all three locations.

         At that time, PCMC was performing M&R work for Maersk in Los Angeles and it was interested in expanding its work to the three newly acquired Maersk terminals.[5] Because PCMC was bound by the PCL&CA to recognize ILWU, however, Sealand's IAM-recognition requirement prevented PCMC from performing the work. In order to get around this obstacle, PCMC created PMMC. PMMC then bid on, and won, the Maersk contract. Thereafter, PMMC recognized IAM and began performing the M&R work at the former Sealand terminals.

         On March 31, 2002, the IAM-Sealand (now IAM-PMMC) CBA was set to expire. Around the same time, Maersk consolidated its Southern California operations by merging its M&R workforce into a single terminal (Pier 400) in the Port of Los Angeles. As a result of the consolidation, Maersk no longer needed PMMC's services at the Long Beach terminal and instead contracted with PCMC to do its M&R work at the new consolidated Los Angeles terminal. As for the Oakland and Tacoma terminals, PMMC and IAM agreed to a CBA extension from April 1, 2002 to March 31, 2005 but did so only after more than a dozen bargaining sessions and a strike vote of unit employees.

         In late 2004, with the March 31, 2005 CBA expiration date looming, Maersk solicited bids from both PCMC and PMMC for work at the Oakland and Tacoma terminals. PCMC submitted a bid of $64.46 per hour and PMMC submitted a bid of $72.88 per hour. At the ALJ hearing, PCMC and PMMC representatives explained the difference in price. PCMC representative Joseph Gregorio testified that the discussion regarding the different bid prices "always was focused upon the concept that there was differences [sic] in labor costs, " including "benefits and pensions." JA 92. Similarly, PMMC informed Maersk that its higher bid resulted from a "collection of [employee] benefits." JA 172.

         Maersk selected PCMC to do the work. Accordingly, on January 25, 2005, Maersk terminated its maintenance contract with PMMC, effective March 31, 2005. On January 26, PMMC notified IAM, informing it and its unit employees[6] that PMMC intended to terminate its operations on April 1. PMMC also explained how the unit employees could apply for employment with PCMC to continue working the same jobs. In early February, IAM requested that PMMC bargain over its decision to terminate work at the Oakland and Tacoma terminals. PMMC agreed to bargain over the effects of the terminations but asserted ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.