International Association of Machinists and Aerospace Workers, District Lodge No. 160 (SSA Terminals

National Labor Relations Board - Board Decisions

Jul 16, 2020

369 N.L.R.B. 126 (N.L.R.B. 2020)

369 NLRB No. 126
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Association of Machinists and Aerospace
Workers, District Lodge No. 160 and SSA Termi-
nals, LLC and International Longshore and
Warehouse Union, Local 19. Case 19–CD–238056
July 16, 2020
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN RING1 AND MEMBERS KAPLAN
AND EMANUEL
This is a jurisdictional dispute proceeding under Section
10(k) of the National Labor Relations Act. SSA Termi-
nals, LLC (the Employer) filed an unfair labor practice
charge on March 19, 2019,2 alleging that International As-
sociation of Machinists and Aerospace Workers District
Lodge 160, Local Lodge 289 (IAM), violated Section
8(b)(4)(D) of the Act by threatening to engage in pro-
scribed activity with an object of forcing the Employer to
assign certain work to employees represented by IAM ra-
ther than to employees represented by International Long-
shore and Warehouse Union (ILWU).
A hearing was held on April 24 and 25, and June 6, be-
fore Hearing Officer Daniel Hickey. Thereafter, the Em-
ployer, IAM, and ILWU each filed a posthearing brief.
The National Labor Relations Board affirms the hearing
officer’s rulings, finding them free from prejudicial error.3
On the entire record, the Board makes the following find-
ings.
I. JURISDICTION
The parties stipulated that the Employer, a Delaware
corporation, operates and manages marine terminals and
provides stevedore services at various ports located on the
Puget Sound in Washington. The parties also stipulated,
1 Chairman Ring has recused himself from consideration of this De-
cision and Determination of Dispute. He is a member of the panel for
quorum purposes, but did not participate in this decision on the merits.
In New Process Steel v. NLRB, 560 U.S. 674 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a two-
member quorum when one of the panel members has recused himself.
Under the Court’s reading of the Act, “the group quorum provision [of
Sec. 3(b)] still operates to allow any panel to issue a decision by only
two members if one member is disqualified.” New Process Steel, 560
U.S. at 688; see also American Postal Workers Union, AFL–CIO, Local
1901 (Postal Service), 369 NLRB No. 9, slip op. at 1 fn.3 (2020) (cita-
tions omitted).
2 Dates hereafter are in 2019 unless otherwise indicated.
3 In light of our award of the disputed work to IAM-represented em-
ployees, we find it unnecessary to pass on IAM’s exception to the hear-
ing officer’s finding that several subpoenas served by IAM were largely
cumulative and immaterial to a determination of the assignment issues
involved in this case.
and we find, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and
is subject to the Board’s jurisdiction and that IAM and
ILWU are labor organizations.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer operates and manages marine cargo ter-
minals and provides stevedoring services at various ports
along the Pacific Coast, including Terminals 5, 18, and 30,
and Pier 91 at the Port of Seattle. The Employer is a mem-
ber of the Pacific Maritime Association (PMA) and party
to the PMA’s Pacific Coast Labor Contract Document
with ILWU (ILWU-PMA agreement).4 ILWU members
primarily perform stevedoring work for the Employer, but
also perform maintenance and repair (M&R) work at a
number of the Employer’s terminals on the Pacific Coast.5
The Employer is also party to a collective-bargaining
agreement with IAM, covering employees performing
M&R work at several SSA terminals, including those in
the Port of Seattle.6 At the time of the hearing, IAM-
represented mechanics performed M&R work at Termi-
nals 18, 25, and 30 at the Port of Seattle, while ILWU-
represented mechanics performed M&R work at Termi-
nals 5 (the terminal at issue) and 46, and Pier 91 at the Port
of Seattle.
During contract negotiations in July 2008, the PMA and
ILWU signed a Letter of Understanding (LOU) providing
that, for the years 2008–2013, any terminal operating with
a non-ILWU work force would be “red-circled.” This
meant that PMA members could continue to use non-
ILWU employees at the red-circled terminals but had to
use ILWU labor at all other terminals. Importantly, the
LOU also provided that a terminal would lose its red-cir-
cle status if it is vacated by the terminal operator. The
2014–2019 ILWU-PMA agreement notes that “ILWU ju-
risdiction of [M&R] work shall not apply at those specific
4 The PMA is a multiemployer association that bargains with ILWU
on behalf of its members who are operating companies at various ports
on the West Coast, including the Port of Seattle. It negotiated the ILWU-
PMA agreement.
5 Specifically, the Employer uses ILWU-represented mechanics for
M&R work in Oregon (Coos Bay and Portland), Washington (Longview
and Port of Tacoma), and California (Oakland, San Diego, and Port
Hueneme). In the Port of Seattle, following a similar 10(k) proceeding,
ILWU-represented workers have performed M&R work for the Em-
ployer at Pier 91. See Machinists Lodge 160 (SSA Marine, Inc.), 357
NLRB 126 (2011) (awarding work at Terminal 91 in Seattle to ILWU
and incorporating by reference a prior vacated decision in Machinists
Lodge 160 (SSA Marine, Inc.), 355 NLRB 23 (2010)).
6 The Employer has been party to collective-bargaining agreements
with IAM covering all M&R work on equipment owned and/or leased
by the Employer in the Puget Sound area since the 1940s. Their most
recent agreement runs from 2017–2020.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
marine terminals that are listed as being ‘red-circled’ in
the [LOU].”
Terminal 5 at the Port of Seattle is owned by the North-
west Seaport Alliance and, from 1997 to 2014, was leased
and operated by PMA-member American President Lines.
Because American President Lines used IAM-represented
mechanics to perform M&R work, Terminal 5 was red-
circled. In 2014, American President Lines ceased its op-
erations at Terminal 5 and, for the next 4 years, Terminal
5 and its cranes remained mostly unused.
In 2018, the Northwest Seaport Alliance, in a joint part-
nership between the Ports of Seattle and Tacoma, devel-
oped a modernization plan, which included reopening Ter-
minal 5 and leasing its operation to the Employer.7 In Au-
gust 2018, the Employer unveiled plans to reopen Termi-
nal 5 for container cargo and informed IAM that, because
the terminal had lost its red-circle status, the Employer
would use ILWU labor to perform M&R work at Terminal
5.8 IAM offered to supply mechanics but, in or about Sep-
tember 2018, on the advice of the PMA, the Employer as-
signed the work to ILWU-represented mechanics,9 who
have performed it ever since.
In January 2019, the Employer subcontracted some of
the M&R work to Pacific Crane Maintenance, LLP, which
used ILWU-represented mechanics from Southern Cali-
fornia.10
By letter dated March 18, 2019, IAM informed the Em-
ployer that it would take economic action against the Em-
ployer, including picketing and striking, unless the Em-
ployer assigned the disputed work at Terminal 5 to IAM-
represented employees.
B. Work in Dispute
The parties stipulated that the work in dispute is the
maintenance and repair work at Terminal 5 in the Port of
Seattle, Seattle, Washington.
C. Contentions of the Parties
All parties agree that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated. The parties also
agree that IAM and ILWU have competing claims for the
M&R work at Terminal 5. And both IAM and ILWU as-
sert that their respective collective-bargaining agreements
cover the disputed work.
IAM contends that the work in dispute should be as-
signed to employees it represents based on the factors of
7 The modernization plan also included the July 2019 closure of Ter-
minal 46, which was run by another terminal operator. At the time of the
hearing, 45 ILWU-represented mechanics worked at Terminal 46.
8 The plan was for Terminal 5 to receive a ship that was previously
being received at Terminal 30 (and serviced by IAM-represented me-
chanics).
collective-bargaining agreements, past practice, area and
industry practice, relative skills, and economy and effi-
ciency of operations. Conversely, ILWU contends that the
work in dispute should be assigned to employees it repre-
sents based on the factors of current assignment and job
loss. It also argues that a majority of the factors are neutral
and, therefore, “do not favor changing the status quo.”
The Employer declined to give a preference.
D. Applicability of the Statute
The Board may proceed with determining a dispute pur-
suant to Section 10(k) of the Act only if there is reasonable
cause to believe that Section 8(b)(4)(D) has been violated.
See Operating Engineers Local 150 (R&D Thiel), 345
NLRB 1137, 1139 (2005). This standard requires finding
that there is reasonable cause to believe that there are com-
peting claims for the disputed work between rival groups
of employees and that a party has used proscribed means
to enforce its claim to the work. Id. Additionally, there
must be a finding that the parties have not agreed on a
method for the voluntary adjustment of the dispute. Id.
1. Competing claims for work
The parties stipulated, and we find, that ILWU and IAM
both claim the work in dispute.
2. Use of proscribed means
By letter dated March 18, 2019, IAM notified the Em-
ployer that it would take all actions necessary, including
picketing, to obtain assignment of the disputed work.
Such a threat establishes reasonable cause to believe that
IAM used proscribed means to enforce its claim to the
work in dispute. See Highway Road and Street Construc-
tion Laborers, Local 1010 (New York Paving), 366 NLRB
No. 174, slip op. at 3 (2018).
3. No voluntary method for adjustment of dispute
Finally, the parties stipulated, and we find, that there is
no agreed-upon method for the voluntary adjustment of
this dispute that would bind all parties. We therefore find
that this dispute is properly before the Board for determi-
nation.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative
award of disputed work after considering various factors.
See NLRB v. Electrical Workers IBEW Local 1212 (Co-
lumbia Broadcasting System), 364 U.S. 573, 578 (1961).
9 At that time, the Employer hired two ILWU-represented mechan-
ics—Dustin Crabtree and Seth Gelinas—to start rehabilitating some of
the cranes at Terminal 5.
10 The Employer hired subcontractors to work at Terminal 5 alongside
the two ILWU-represented mechanics until other ILWU-represented me-
chanics at Terminal 46, which was scheduled to close after Terminal 5
reopened, became available.
MACHINISTS LODGE NO. 160 (SSA TERMINALS, LLC) 3
The Board’s determination in a jurisdictional dispute is an
act of judgment based on common sense and experience,
reached by balancing the factors involved in a particular
case. Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402, 1410–1411 (1962).
The following factors are relevant in making the deter-
mination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence in the case record of a Board cer-
tification concerning the employees involved in this dis-
pute.
As mentioned above, the Employer has collective-bar-
gaining agreements with both IAM and ILWU. IAM’s
current collective-bargaining agreement with the Em-
ployer provides that “I.A.M. represented employees shall
perform all M&R work, including owned and leased
equipment and all M&R work on containers and chassis at
all Puget Sound Region Intermodal, Marine or Container
Terminals.” This language clearly covers the work in dis-
pute. Section 1.731 of the ILWU-PMA agreement also
covers that same work. It provides that “the maintenance
and repair work on all new marine terminal facilities that
commence operations after July 1, 2008 shall be assigned
to the ILWU,” and that “[n]ew marine terminals shall in-
clude new facilities, relocated facilities, and vacated facil-
ities.”11 (Emphasis added.)
Both unions have contractual provisions that arguably
give them a claim to the work in dispute. We therefore
find that this factor does not favor awarding the work in
dispute to employees represented by either union.12 See,
e.g., Longshoremen ILWU, Alaska Longshore Division
and ILWU, Unit 22 (American President Lines, LTD), 369
NLRB No. 63, slip op. at 4 (2020).
2. Employer preference and past practice
The factor of employer preference is generally entitled
to substantial weight. See Iron Workers Local 1 (Goebel
11 As noted supra, the ILWU-PMA agreement also references the
LOU.
12 The IAM argues that the Board here should follow its interpretation
of the same contracts set forth in a prior case—Machinists Lodge 160
(SSA Marine, Inc.), 357 NLRB 126 (2011) (incorporating by reference a
prior vacated decision in Machinists Lodge 160 (SSA Marine, Inc.), 355
NLRB 23 (2010)). In that case, the Board found that the collective-bar-
gaining agreement factor slightly favored awarding the work to IAM-
represented employees. Id. at 25. The question presented in the earlier
case, however, was whether the terminal at issue was “new” and, there-
fore, not subject to the “red-circled facility” exception in the ILWU-
PMA agreement that permitted hiring non-ILWU-represented mechan-
ics. Here, it is undisputed that American President Lines vacated Termi-
nal 5, which consequently lost its red-circle status based on language in
the ILWU-PMA agreement. Accordingly, both unions have equally
strong claims to the work in dispute based on their respective contracts.
13 See Sign Painters Local 756 (Heritage Display), 306 NLRB 818,
820 (1992) (finding no “clear-cut” preference where employer testified
Forming), 340 NLRB 1158, 1163 (2003). Here, the Em-
ployer declined to give a preference. When explicitly
asked which union the Employer preferred, Edward
DeNike, the Employer’s Senior Vice President, responded
that because the Employer works with hundreds of work-
ers from both unions on a continuing basis, he would “not
[give] a preference,” and that he “cannot [give] a prefer-
ence on this.”
Although the Board has found the employer preference
factor to have no bearing on a case where an employer ex-
pressly stated that it did not have a preference,13 the Board
has not limited itself to considering the employer’s ex-
plicit preference (or refusal to state one) and has relied on
other evidence presented during a hearing to make a con-
clusion as to the employer’s preference. See Operating
Engineers Local 150 (United Drilling), 337 NLRB 651,
653 (2002) (inferring preference by relying on other con-
siderations—assignment and past practice, refusal to reas-
sign the work after receiving threat of proscribed means,
and testimony about dissatisfaction with the work of one
of the unions—where the employer failed to expressly
state a preference, and distinguishing the case from Sign
Painters Local 756 (Heritage Display), 306 NLRB 818,
820 (1992), on the grounds that the employer in Heritage
Display “expressly stated that it did not have a prefer-
ence,” and the employer here “made no such state-
ment”).14 We find that the Employer’s preference to as-
sign the work to IAM may be inferred from: (1) the testi-
mony of one of the Employer’s witnesses that, were it not
for the ILWU-PMA agreement, the Employer would have
assigned the work in dispute to IAM-represented mechan-
ics; and (2) the Employer’s past practice.15 See id. Nota-
bly, when asked whether, in the absence of the ILWU-
PMA agreement, he “would have preferred to have moved
the IAM mechanics over,” DeNike answered, “yes, . . . if
we didn’t have [a] contract obligation to do so, we would
have used [IAM-represented mechanics] we already had
that it “does not ‘really have [a] preference’”) (emphasis added). The
instant case is distinguishable from Heritage Display as, here, the Em-
ployer stated that it would not give a preference.
14 In the absence of an explicit statement of preference, ILWU argues
that the only other evidence the Board should consider in determining
the Employer’s preference is the current assignment of the work. How-
ever, we find that the Employer provided additional testimony, discussed
infra, that sheds light on its preference.
15 While the Board does not generally examine reasons for an em-
ployer’s preference unless there is evidence that the employer was co-
erced into its preference, here, we examined the Employer’s stated rea-
sons for assigning the work, which shed light on its unstated preference.
See generally SSA Marine, Inc., supra at 26 (refraining from examining
why the employer preferred ILWU over IAM for the work in dispute).
Nothing in this decision should be read as affecting the Board’s practice
of refraining from analyzing why an employer prefers a particular union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
working for us [at terminals 18 and 30].” Accordingly,
although the Employer refused to give a preference,
DeNike’s testimony supports the conclusion that, but for
the ILWU-PMA agreement, the Employer would prefer
IAM-represented mechanics to do the work in dispute.
We find that this factor weighs in favor of awarding the
work to IAM-represented mechanics.16
Although the parties stipulated that IAM-represented
mechanics performed the M&R work at Terminal 5 prior
to 2014, there is no past practice with the Employer at Ter-
minal 5 because Terminal 5 was previously operated by
American President Lines and not the Employer. There is
no evidence that, prior to 2018, the Employer ever leased
or operated out of Terminal 5. As noted supra, however,
the Employer plans to use cranes at Terminal 5 that were
previously operated by IAM-represented mechanics. Be-
cause IAM-represented mechanics previously handled the
Terminal 5 cranes, we find that this factor weighs in favor
of awarding the work in dispute to IAM-represented me-
chanics.17 Cf. International Union of Operating Engi-
neers, Local 150, AFL–CIO (Jack Gray Transport, Inc.
d/b/a Lakes & Rivers Transfer), 364 NLRB No. 132, slip
op. at 3 (2016) (finding that, although there was no past
practice because the work in dispute involved new equip-
ment that had not been used previously, the past practice
factor weighed in favor of the union whose members had
traditionally handled the machinery that was being re-
placed by the new equipment).
3. Current assignment
The disputed work is currently assigned to mechanics
represented by ILWU, which argues, in the absence of
supporting precedent, that this consideration should be de-
cisive. We find that this factor weighs in favor of award-
ing the work to ILWU-represented mechanics, but we re-
ject ILWU’s argument that this factor on its own should
16 Although our finding that the Employer prefers IAM-represented
mechanics differs from the current assignment to ILWU-represented me-
chanics, in addition to the past practice factor, we find that the factors of
skills and trainings, and economy and efficiency also support the infer-
ence that the Employer prefers IAM-represented mechanics. See gener-
ally International Longshore and Warehouse Union, Local 12 (South-
port Lumber Co.), 367 NLRB No. 16, slip op. at 7 (2018) (finding that,
although inconsistent with past practice, an employer’s stated preference
was supported by consideration of relative skills and economy and effi-
ciency of operations).
17 Additionally, while there is no specific past practice for the Em-
ployer at Terminal 5, prior to the LOU, the Employer had a past practice
of assigning the work in dispute at its other terminals in the Port of Seat-
tle to IAM-represented mechanics. See SSA Marine, Inc., 355 NLRB at
26 (noting that “[t]he Employer has a practice of assigning M&R work
in the Port of Seattle to IAM-represented mechanics”).
18 ILWU claims that in Sec.10(k) cases between the parties, “the
Board has endorsed the employer’s assignment of the work and the
maintenance of the status quo, recognizing that the employers are gener-
ally in the best position to assess the appropriate assignment in this
result in the work being awarded to ILWU-represented
mechanics.18
4. Area and industry practice
The parties stipulated that both IAM- and ILWU-
represented mechanics perform the type of work in dis-
pute—M&R work—on the West Coast. At the Port of Se-
attle, IAM-represented mechanics perform M&R work at
Terminals 18, 25, and 30, and ILWU-represented mechan-
ics perform M&R work at Terminals 5 (the terminal in
dispute) and 46 (which was scheduled to close in July
2019), and at Pier 91. With the July 2019 closing of Ter-
minal 46, a majority of the M&R work at the Port of Seat-
tle would be done by IAM-represented mechanics The
parties also stipulated that, at the nearby larger Port of Ta-
coma and other Puget Sound facilities, most M&R work
is performed by ILWU-represented employees. Accord-
ingly, we find that this factor does not favor an award to
either group of employees. See, e.g., Machinists Lodge
160 (SSA Marine, Inc.), 355 NLRB 23, 26 (2010) (finding
that the factor of area and industry practice does not favor
an award to employees represented by IAM or ILWU
where both unions’ mechanics performed M&R work on
the West Coast, but the majority of the work in Seattle is
performed by IAM-represented mechanics and the major-
ity of the work at nearby Port of Tacoma and other Puget
Sound facilities is performed by ILWU-represented me-
chanics), incorporated by reference, 357 NLRB 126
(2011).
5. Relative skills and training
DeNike testified that both unions’ mechanics are quali-
fied to perform the work at Terminal 5.
The evidence established that IAM has an approxi-
mately 4-year-long apprenticeship program. The pro-
gram, which IAM manages jointly with various
complex and changing industry.” However, the cases cited by ILWU in
support of its claim show that, in each situation, along with the prevailing
union being the one currently performing the assigned work, the em-
ployer explicitly stated a preference for the prevailing union. See SSA
Marine, Inc., 355 NLRB at 27 (awarding the disputed work to the em-
ployer-preferred ILWU, which had already been assigned the work); Ma-
chinists District 160 Local 289 (SSA Marine), 347 NLRB 549, 552
(2006) (awarding maintenance work to the employer-preferred IAM,
which had most recently performed the work); Automotive Trades Dis-
trict Lodge 190 (Sea-Land Service), 322 NLRB 830, 835 (1997) (award-
ing the work to IAM, which the employer preferred, but which, although
initially assigned the work, was not performing the work at the time of
the dispute); Longshoremen’s and Warehousemen’s Union, Local 19
(West Coast Container Service, Inc.), 266 NLRB 193, 197 (1983)
(awarding the work in dispute to the employer-preferred IAM, which had
already been assigned the work). As noted above, an employer’s prefer-
ence is given substantial weight. See Goebel Forming, 340 NLRB at
1163. Accordingly, it is clear why the preferred unions in the cases cited
by ILWU prevailed.
MACHINISTS LODGE NO. 160 (SSA TERMINALS, LLC) 5
employers, including the Employer, is certified by the
state of Washington, and has existed for approximately 40
years. In addition, when the Employer assigned the work
to ILWU-represented mechanics, IAM-represented me-
chanics had more experience handling Terminal 5’s
cranes, which they had previously maintained as employ-
ees of American President Lines, which ceased operations
there in 2014.
By contrast, ILWU has no comparable apprenticeship
program. At best, the evidence shows that the Employer:
(1) was satisfied with the two ILWU-represented mechan-
ics at Terminal 5, Dustin Crabtree19 and Seth Gelinas; and
(2) believed that ILWU-represented mechanics who
would become available for transfer when Terminal 46
closed were qualified. It should be noted, however, that
although Crabtree’s and Gelinas’ skills and training were
notable, their individual qualifications do not establish a
union-wide level of skills and training. On balance, we
find that this factor weighs in favor of awarding the work
to IAM-represented mechanics.
6. Economy and efficiency of operations
DeNike testified that it has “lesser [sic] cost with IAM,”
and it is “much more efficient and economical” to use
IAM-represented mechanics.
The record confirms that there are more costs associated
with using ILWU-represented mechanics than there are
with using IAM-represented mechanics. According to
DeNike, “the main difference . . . is that the IAM works
eight hours a day, gets paid eight hours a day” and that
“ILWU gets paid ten hours a day and works nine hours a
day.” Additionally, DeNike testified that, in hiring
ILWU-represented mechanics, the Employer would need
approximately fifteen mechanics—which is twice as many
as the seven or eight the Employer would need if it hired
IAM-represented mechanics. Consequently, hiring
19 Interestingly, the record seems to indicate that the skills gained by
Crabtree are due, at least in part, to him having previously been an IAM-
represented member. The evidence shows that Crabtree previously
worked at Terminal 5 for another employer, was represented by IAM,
and participated in IAM’s 4-year apprenticeship during this time.
20 Neither the unions nor the Employer used wage differentials to ar-
gue economic advantage. See Lakes & Rivers Transfer, supra, slip op.
at 4 (citing Southwest Regional Council of Carpenters (Standard Dry-
wall, Inc.), 346 NLRB 478, 483 (2006), and Painters Local 91 (Frank
M. Burson, Inc.), 265 NLRB 1685, 1687 (1982)), for the principle that
the Board does not consider wage differentials as a basis for awarding
disputed work). Instead, in finding its use of IAM-represented mechan-
ics more economical, the Employer focused on the fact that, regardless
of wage differentials, it would need more ILWU-represented mechanics,
who clock two additional hours per day, than IAM-represented mechan-
ics.
21 The record also reveals that when using ILWU-represented me-
chanics provided by subcontractors, the Employer must pay: (1) $5000
per week as a management fee to the subcontracting companies; (2) 10
percent sales tax on the subcontracted labor; (3) a markup, or “override,”
ILWU-represented mechanics would be more expensive
for the Employer.20
In addition to the daily cost differentials, ILWU runs an
exclusive hiring hall, which is paid for primarily by em-
ployers through an hourly assessment on labor.21 IAM
does not have a hiring hall and, therefore, does not have
an equivalent cost associated with the hiring of its me-
chanics.
Moreover, the Employer does not need to provide tools
for IAM-represented mechanics, a consideration that
helps in determining the outcome of this factor, and which
the Employer framed as “an advantage.” See Laborers’
Local 833 (Patent Scaffolding), 297 NLRB 997, 999
(1990) (finding that the factor of economy and efficiency
of operations weighs in favor of awarding the work to em-
ployees for whom the employer does not need to provide
tools). Additionally, unlike IAM-represented mechanics
who can take their tools with them as they work in the
Employer’s various terminals, ILWU-represented me-
chanics cannot take the tools back and forth with them.
The Employer testified that ILWU-represented mechan-
ics’ inability to take tools with them as they worked was a
“loss of efficiency.”
The Employer’s evidence establishes that it is more ef-
ficient to use IAM-represented mechanics because it can
transfer them from its other terminals to Terminal 5 with-
out spending time interviewing prospective mechanics, as
it would have to do if it were to use ILWU-represented
mechanics. IAM highlights the Employer’s evidence and
notes the inefficiency the Employer would experience by
having to call for additional mechanics from the ILWU’s
hiring hall. ILWU counters that there are economies and
efficiencies in using either work force, but ultimately con-
cedes that, on balance, the factor of efficiency and econ-
omy is either neutral or weighs slightly in favor of IAM.22
of approximately 10 percent to the company providing subcontractors;
and (4) $8000-$10,000 on additional tools for the subcontracting me-
chanics who traveled to Washington from other states to use at Terminal
5.
22 Although it makes this concession, ILWU argues that its mechanics
are more versatile than IAM-represented mechanics because they can
work with the Employer’s longshore work force as needed. See Labor-
ers (Eshbach Bros., LP), 344 NLRB 201, 204 (2005) (finding the factor
of economy and efficiency of operations weighed in favor of the union
whose members were performing other work on the project aside from
the disputed work); Laborers Indiana District Council (E&B Paving,
Inc.), 340 NLRB 1256, 1259 (2003). However, we find that this asser-
tion is insufficient to outweigh the factors weighing in IAM’s favor: the
need for fewer mechanics and the ability to substitute additional mechan-
ics from other terminals as needed. See United Industrial Workers of
North America (Albin Stevedore Co.), 182 NLRB 633, 636–637 (1970)
(finding that economy and efficiency of operations favored award of
work to union that has more members readily available to perform dis-
puted work and who are qualified to substitute for one another).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
We find that this factor weighs slightly in favor of assign-
ing this work to mechanics represented by IAM.
7. Job loss
Although not always a factor, the Board has considered
job loss when making an award of the work in dispute.
See, e.g., Iron Workers Local 40 (Unique Rigging), 317
NLRB 231, 233 (1995). The record shows that the closure
of Terminal 46 would result in the layoff of 45 ILWU-
represented mechanics.23 DeNike estimated that, if the
work were awarded to ILWU-represented mechanics, the
Employer would hire approximately 15 ILWU-
represented mechanics. Accordingly, the use of ILWU-
represented mechanics at Terminal 5 would prevent at
least 15 layoffs. If the work were awarded to IAM-
represented mechanics, those 15 ILWU-represented me-
chanics would join the other 30 mechanics from Terminal
46 in unemployment. However, if the work were awarded
to ILWU-represented mechanics, IAM-represented me-
chanics would see no job loss. Instead, IAM-represented
mechanics would experience a loss of hours. This factor
weighs in favor of awarding the work to mechanics repre-
sented by ILWU.
CONCLUSIONS
After considering all the relevant factors, we conclude
that employees represented by IAM are entitled to perform
the work in dispute. We reach this conclusion relying on
the factors of employer preference, past practice, skills
and training, and economy and efficiency of operations.
We find that these factors outweigh the two factors—cur-
rent assignment and job loss—that favor an award of the
work to ILWU-represented employees. In making this de-
termination, we are awarding the work to employees rep-
resented by IAM, not to the IAM. The determination is
limited to the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute:
Employees of SSA Terminal, represented by Interna-
tional Association of Machinists and Aerospace Workers
District Lodge 160, Local Lodge 289, are entitled to per-
form maintenance and repair work on SSA Terminal’s
equipment at Terminal 5, the Port of Seattle, in Seattle,
Washington.
Dated, Washington, D.C. July 16, 2020
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
23 As noted supra, Terminal 46 was scheduled to close in July 2019.