Machinists, District Lodge 160, Local Lodge 289 (SSA Marine)

National Labor Relations Board - Administrative Judge Opinions

May 8, 2012

19-CD-000502 (N.L.R.B. May. 8, 2012)

JD(SF)–22–12
Pugent Sount, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS DISTRICT LODGE 160,
LOCAL LODGE 289
and Cases 19–CD–502
19–CD–506
SSA MARINE, INC.
and
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION
John H. Fawley, Esq.,
for the General Counsel.
Jacob H. Black, Esq. (Robblee, Detwiler & Black, PLLP),
of Seattle, Washington, for the Respondent.
James McMullen, Esq.,
for the Charging Party.
Phil A. Thomas, Esq. (Leonard Carter, LLP),
of San Francisco, California, for ILWU
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried based on a joint
motion and stipulation of facts approved by me on March 19, 2012. SSA Marine, Inc. (herein
SSA) filed the charge in Case 19–CD–502 on June 10, 2009, and the charge in Case 19–CD–
506 on September 28, 2010. The General Counsel issued the order consolidating cases,
consolidated complaint, and notice of hearing on October 31, 2011. The complaint alleges that
the International Association of Machinists and Aerospace Workers District Lodge 160, Local
Lodge 289 (herein Respondent) demanded that SSA assign certain work to employees it
represents rather than to employees represented by the International Longshore and
Warehouse Union (herein ILWU) but thereafter, the Board assigned the work to the ILWU
represented employees. The complaint alleges that Respondent violated Section 8(b)(4)(ii)(D)
by threatening to picket SSA and by maintaining an action in arbitration seeking monetary
and/or other contractual remedies, thereby undermining the Board’s award, both with an
objective of forcing and requiring SSA to assign the work to employees that Respondent
represents. Respondent filed a timely answer that denied it had violated the Act.
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On the entire record and after considering the briefs filed by the General Counsel,1
Respondent, SSA2 and ILWU, I make the following.
Findings of Fact
I. Jurisdiction
SSA, a State of Washington corporation with an office and place of business in Seattle,
Washington, is engaged in the business of providing stevedoring and terminal services at the
Puget Sound area marine terminals, including cruise ship terminals. During the past 12 months,
a representative period, while conducting these business operations SSA purchased goods and
supplies valued in excess of $50,000 directly from entities outside the State of Washington. The
parties stipulate, and I find, that SSA is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that Respondent and ILWU are labor organizations
within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Facts
Pacific Maritime Association (herein PMA) is a multiemployer collective-bargaining
agent. Its members include the approximately 50 for-profit stevedore companies, marine
terminal operators, and maintenance contractors who employ longshoremen, mechanics, and
other categories of dockworkers at waterfront facilities located at ports in Washington, Oregon,
and California, and approximately 20 for-profit ocean carriers who engage the stevedore
companies, marine terminal operators, and maintenance contractors to load and unload cargo
from their oceangoing vessels. At all material times, SSA and other employer-members of PMA
have duly authorized PMA to represent them in negotiations with the ILWU over the terms and
conditions of employment for a coastwide multiemployer bargaining unit of employees
performing work described in the ILWU-PMA Pacific Coast Longshore & Clerks Agreement
(herein PCL&CA) at the Ports of Seattle and other Pacific Coast ports in Washington, Oregon,
and California. PMA has never had a collective-bargaining relationship with Respondent and is
not a party to any agreements with Respondent.
At all material times, SSA has been party to a collective-bargaining agreement with IAM
that covers all maintenance and repair work on equipment owned and/or leased by SSA in the
Puget Sound area. Prior to July 1, 2008, pursuant to its collective-bargaining agreement with
IAM, SSA assigned its maintenance and repair work in the Puget Sound area to employees
represented by IAM. At all material times, SSA as an employer-member of PMA has been party
to a collective-bargaining agreement with ILWU. In July 2008, during the term of IAM’s contract
with SSA, PMA entered into a contract with ILWU giving maintenance and repair work at all
“new” terminals to ILWU members. At all times since July 1, 2008, SSA has assigned the work
of the maintenance and repair of its stevedoring and terminal service power equipment while
present at Terminal 91 in Seattle, Washington (herein the disputed work) to employees who are
represented by the ILWU, and who are neither members of, nor represented by, Respondent.
Respondent has not been certified by the Board as the exclusive collective-bargaining
representative of any of the employees performing the disputed work, nor has the Board issued

1 Respondent’s motion to strike portions of the General Counsel’s brief is denied.
2 For good cause shown, I grant SSA’s motion to file its brief one day late.
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any order determining that Respondent is the exclusive collective-bargaining representative of
the employees performing that work.
On April 24, 2009, Respondent initiated a grievance against SSA regarding the
assignment of the disputed work to the ILWU. On May 8, 2009, Arbitrator Michael Cavanaugh
issued a “Decision and Award” finding that SSA had breached its collective-bargaining
agreement with Respondent by assigning the disputed work to its employees represented by
ILWU, rather than those represented by Respondent, and directing SSA to make Respondent-
represented employees whole. Arbitrator Cavanaugh succinctly gave the following overview of
the case:
The Employer operates marine terminals and provides stevedoring services in Puget
Sound, including at cruise ship terminals in Seattle. The Union represented the
maintenance and repair (M&R) mechanics who have historically serviced the power
equipment used at the cruise terminals. During the summer of 2008, the Employer, as a
member of the Pacific Maritime Association, negotiated a replacement labor agreement
covering employees in its International Longshore & Warehouse Union (ILWU)
bargaining unit. As part of the PMA/ILWU Agreement for the years 2008–2013,
maintenance work on equipment used at “new” facilities was assigned to ILWU
mechanics (footnote omitted). For the 2009 cruise ship season, cruise ships will call at
the Smith Cove Terminal in Puget Sound, located at Terminals 90-91, instead of at
Terminal 30 and Pier 66 as in prior years. Apparently, ILWU has claimed the M&R work
at the Smith Cove facility, claiming that it is “new,” and the Employer has responded by
subcontracting the maintenance work on its equipment to Harbor Industrial. Harbor is a
PMA member and employs ILWU mechanics. The Union maintains that by
subcontracting its maintenance work to Harbor and its ILWU workforce, the Employer
has violated the terms of the SSA/IAM Agreement because that Agreement
unequivocally preserves historical maintenance work in the Puget Sound area for the
IAM bargaining unit.
Later Arbitrator Cavanaugh summarized SSA’s contractual obligations to Respondent as
follows:
Under the terms of their Agreement, which preexisted [sic] the provisions of the
PMA/ILWU Agreement for a number of years, the Employer has been and continues to
be obligated to perform this M&R work with the members of the IAM bargaining unit.
That is so because Article 2, for example, provides that “work which has been historically
performed by the members of the bargaining unit will continue to be performed by the
members of the bargaining unit.” . . . Similarly, Article 5 (“Recognition, Hiring and
Jurisdiction”) provides in pertinent part, ”to further clarify this Article, it is understood that
IAM represented employees will maintain and repair all equipment owned and leased by
SSAT in the Puget Sound area. . . . The facts in evidence substantiate the Union’s
contention that the equipment maintenance work at Smith Cove Terminal is the precise
work formerly by the IAM mechanics at Pier 66 and Terminal 30 (emphasis in original).
Given these facts it is entirely unsurprising that Arbitrator Cavanaugh found that SSA had
breached its contract with Respondent. By letter dated May 12, 2009, following receipt of the
arbitrator’s Decision and Award, Respondent demanded under the threat of picketing that SSA
assign the disputed work to employees represented by Respondent, pursuant to its collective-
bargaining agreement with SSA, and to make the Respondent-represented employees whole.
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By letter dated May 14, 2009, ILWU informed PMA that it rejected and repudiated the
arbitrator’s decision and award and that it would pursue all available and appropriate remedies
to insure that the disputed work continued to be performed by ILWU-represented employees.
Following receipt of the above demands from Respondent and ILWU, SSA filed the
charge in Case 19–CD–502. Between June 30 and July 2, 2009, a hearing pursuant to Section
10(k) of the Act was held in Seattle, Washington. On January 22, 2010, the Board by its two-
sitting Members issued a Decision and Determination of Dispute, which is reported at 355 NLRB
23 (2010), finding that SSA’s employees represented by the ILWU were entitled to perform the
disputed work and that Respondent was not entitled by any means proscribed by Section
8(b)(4)(D) of the Act to force SSA Marine to assign the disputed work to employees represented
by Respondent. Following Respondent’s written agreement to comply with the Decision and
Determination of Dispute described the Regional Director approved SSA’s withdrawal of its
charge in Case 19–CD–502.
In June 2010 Respondent notified Arbitrator Cavanaugh and SSA that it was seeking
contractual “pay-in-lieu” remedies to enforce Cavanaugh’s May 8, 2009 Decision and Award,
and that a hearing should be scheduled. Following Respondent’s notification that it was seeking
the contractual pay-in-lieu relief, SSA filed the charge in Case 19–CD–506 on September 28,
2010. Respondent has never withdrawn its demand that a hearing be held before Arbitrator
Cavanaugh regarding the contractual pay-in-lieu relief it is seeking. A hearing has never been
held and Respondent’s demand has been held in abeyance pending resolution of the instant
proceedings before the Board.
On December 15, 2010, the Board issued a Decision and Determination of Dispute,
which is reported at 356 NLRB No. 54, finding that SSA’s employees represented by the ILWU
were entitled to perform the disputed work and that Respondent was not entitled by any means
proscribed by Section 8(b)(4)(D) of the Act to force SSA Marine to assign the disputed work to
employees represented by Respondent. On May 24, 2011, the Board issued an Order Vacating
and Remanding, which is reported at 356 NLRB No. 161, in which it vacated the above Decision
and Determination of Dispute that issued on December 15, 2010, as having been improvidently
issued, and remanded the case to the Regional Director. On May 26, 2011, the Regional
Director issued an Order Revoking Approval of Withdrawal of Charge in which he revoked the
approval of the withdrawal of the charge in Case 19–CD–502 and reinstated the charge. On
July 22, 2011, the Board issued its Decision and Determination of Dispute, which is reported at
357 NLRB No. 24, finding that SSA’s employees represented by ILWU are entitled to perform
the disputed work and that Respondent is not entitled by any means proscribed by Section
8(b)(4)(D) of the Act to force SSA Marine to assign the disputed work to employees represented
by Respondent.
Following issuance of the Board’s Decision and Determination of Dispute on
July 22, 2011, Respondent has informed the Regional Director that it would comply with the
decision and would not demand that Respondent’s members be dispatched to perform the
disputed work, but that it would not withdraw its demand that the arbitrator schedule a hearing
regarding the contractual pay-in-lieu relief described. Respondent has not otherwise assured
SSA or the Regional Director that it would never seek any monetary and/or other contractual
remedies (specifically, “pay-in-lieu” relief) to enforce Arbitrator Cavanaugh’s May 8, 2009
Decision and Award. By letter dated November 10, 2011, Respondent has agreed not to take
any actions to enforce Arbitrator Cavanaugh’s May 8, 2009, Decision and Award pending
resolution of the instant matter by the Board, but it has specifically reserved the right to seek full
contractual backpay relief if the Board issues a Decision and Order in favor of the Respondent.
Should Respondent seek contractual backpay relief, as described above, Respondent will not,
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under any circumstances, seek to dispatch Respondent’s members to perform the disputed
work at any time now or in the future, in contravention of the Board’s July 22, 2011 10(k)
Decision and Determination. Rather, Respondent intends to seek “pay-in-lieu” relief for
Respondent’s members for the time period of July 1, 2008 to July 21, 2011, and/or July 1, 2008
to present, but no other relief. The relief requested would be within the order of magnitude of
the number of hours per year that ILWU-represented employees have performed the disputed
work, as estimated. The estimated number of hours that SSA employees represented by ILWU
have performed since spring 2009 is as follows: 2476 hours for 2009; 2784 hours for 2010; and
2543 hours for 2011.
Referring to a concept developed during negotiations in 2008 to address PMA member
concerns about an ILWU proposal to modify the PCL&CA through a Memorandum of
Understanding (MOU) provision that assigns to the ILWU “the maintenance and repair work on
all new marine terminals that commence operations after July 1, 2008,” SSA asked for and
received from PMA an agreement that promises to reimburse SSA for damages that come
about as a result of SSA’s breaching its contract with Respondent for the assignment of the
disputed work No such agreement had been made in the past. Pursuant to that agreement,
requested and reached as described above, PMA agreed to fully indemnify SSA if Respondent
were to seek and obtain the “pay-in-lieu” relief. The reimbursement would be paid entirely from
PMA’s general assets. Although PMA is a not-for-profit organization, paying the reimbursement
would not require PMA to increase its cargo dues materially or to make any special
assessments from its members, including from SSA.
B. Issues Presented
The parties describe the issues in this case as follows.
Has Respondent IAM, since on or about July 22, 2011, coerced or restrained any person
engaged in commerce or in an industry affecting commerce with an unlawful object in
violation of Section 8(b)(4)(ii)(D) of the Act by refusing to withdraw and otherwise
continuing to maintain its legal action seeking to obtain any pay-in-lieu or other monetary
remedy to enforce Arbitrator Cavanaugh’s May 8, 2009, Decision and Award?
C. Positions of the Parties
1. The General Counsel’s position
The General Counsel contends that Respondent’s continued maintenance of its legal
action seeking to obtain pay-in-lieu or other monetary relief seeking to enforce an arbitrator’s
award directly contradicts and undermines the Board’s July 22, 2011 decision awarding the
disputed work to employees represented by the ILWU. Under well-settled Board law,
Respondent’s continued maintenance of its legal action after July 22, 2011, violates
§8(b)(4)(ii)(D) of the Act.
Commencing July 2008, SSA assigned the disputed work to employees represented by
the ILWU. After Respondent filed a grievance, an arbitrator issued a decision and award finding
that SSA’s assignment of the disputed work to ILWU-represented employees breached SSA’s
collective-bargaining agreement with Respondent and ordered SSA to make Respondent-
represented employees whole. The arbitrator did not determine the specific amount of make-
whole-relief owed because he found that the record developed before him was insufficient to
make that determination. Following issuance of the arbitrator’s decision, Respondent
threatened to picket if SSA did not reassign the disputed work to employees represented by
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Respondent. A hearing pursuant to Section 10(k) of the Act was held in light of Respondent’s
and ILWU’s competing demands for the work, Respondent’s threat to obtain the work, and the
absence of any voluntary method for resolving the dispute. Due to various procedural issues,
the Board did not issue a final Decision and Determination of Dispute until July 22, 2011 (the
10(k) decision). In that decision, the Board determined that employees of SSA represented by
ILWU were entitled to perform the disputed work and that Respondent was not entitled by
means proscribed by § 8(b)(4)(D) to force SSA to reassign the disputed work to employees
represented by Respondent. Meanwhile, in June 2010, Respondent initiated a legal action
before the arbitrator seeking an order requiring pay-in-lieu or other monetary relief to make its
employees whole for the contractual breach that the arbitrator had concluded SSA had caused
by assigning the disputed work to ILWU-represented employees. Since the issuance of the
Board’s July 22, 2011 10(k) decision, Respondent has refused to withdraw and continues to
maintain that legal action. Although Respondent’s initiation of its action to enforce the
arbitrator’s decision was not unlawful, its continued maintenance of that action following the
Board’s July 22, 2011 10(k) determination violates the Act. Settled Board law is clear that such
post-10(k) determination conduct is proscribed by § 8(b)(4)(D) because it directly undermines
the Board’s 10(k) determination, which constitutes the final resolution regarding the disputed
work. Here, Respondent’s legal action seeking monetary relief because SSA had ILWU-
represented employees perform the disputed work, directly undermines the Board’s 10(k)
determination that those ILWU-represented employees are entitled to perform the disputed
work. It does not matter that Respondent does not seek a remedy requiring SSA to reassign
the work to its members or that PMA would reimburse SSA for any damages awarded. Under
well-established Board law, seeking contractual pay-in-lieu relief for employees not entitled to
perform the disputed work under the Board’s 10(k) determination constitutes unlawful coercion
in violation of §8(b)(4)(ii)(D) of the Act regardless of which person in commerce is required to
pay the damages.
2. Respondent’s position
This case arose from a jurisdictional dispute between Respondent and ILWU over
“maintenance and repair” (M&R) work performed at Terminal 91 in Seattle by SSA. In an earlier
proceeding, each union claimed the work, and on July 22, 2011, the Board issued a 10(k) award
providing that employees of SSA represented by ILWU were entitled to perform the work. For
decades, SSA has assigned M&R work in Puget Sound to employees represented by
Respondent. SSA is a member of PMA, an entity that bargains on behalf of companies working
at the various ports on the West Coast, including SSA. During the summer of 2008, SSA, as a
member of PMA, negotiated a labor agreement covering employees represented by the ILWU.
On July 1, 2008, PMA and the ILWU entered into an agreement providing that M&R work at
“new” Puget Sound terminals would be assigned to ILWU. Prior to PMA signing the agreement,
SSA procured PMA’s promise that PMA would indemnify SSA from any damages that would
result from SSA’s breach of its CBA with Respondent as a result of the new language
negotiated with the ILWU. After the SSA-ILWU agreement was signed in July 2008, SSA
assigned M&R work to ILWU members at Terminal 91. Respondent grieved SSA’s assignment
of M&R work and an arbitrator held that SSA’s assignment was a violation of its CBA with
Respondent. Respondent has held the remedy phase of the arbitrator’s decision in abeyance
pending the outcome of this proceeding. Respondent’s pursuit of pay-in-lieu remedy on the
foregoing facts does not subvert the Board’s 10(k) award. A pay-in-lieu remedy in no way
“undermines” the Board’s 10(k) award because it will not, with a certainty, coerce SSA to
reassign Respondent’s members the M&R work that was awarded to ILWU members by the
Board. Nor will SSA incur any financial loss. It is settled law that 10(k) determinations are
undermined when confronted with inconsistent arbitral decisions because “an employer would
be presented with a choice of either complying with the Board’s decision and risking Section
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301 damages, or complying with an arbitrator’s decision which was contrary to the Board’s
determination.” Local Union 33 (Blount Bros.), 289 NLRB 1482, 1484 (1988). Here, SSA is not
confronted with such a choice. While the Board has held in different circumstances that there is
essentially no material difference between seeking the assignment of work and seeking
payment in lieu of work, on the unique facts of this case there is a material difference. Two
important facts set this case apart from the run-of-the-mill “pay-in-lieu” case. First, SSA is
completely indemnified from any financial loss related to the arbitral remedy Respondent is
seeking. Second, SSA cannot be coerced to “assign” M&R work to Respondent because PMA
made a “commitment” to the ILWU in the 2008 negotiations to give the M&R work to the ILWU.
PMA then made an indemnification agreement with SSA because it was in the “best interest of
the industry for SSA to go along with that commitment.” In sum, SSA will not reassign work to
Respondent in reaction to a pay-in-lieu remedy because the “industry” does not prefer such an
assignment, SSA has no financial liability, and Respondent would not accept an assignment
contrary to the Board’s 10(k) decision. On the unique facts of this case, there is no coercion of
SSA and no subversion of the Board’s 10(k) decision. The Board has consistently allowed
unions to pursue a contract remedy in situations where an entity other than the employer
responsible for assigning work is liable for the contract damages. See, e.g., Blount Bros.,
supra; Ironworkers (Hoffman Constr. Co.), 293 NLRB 570 (1989); Slattery Assoc., 298 NLRB
787 (1990). PMA is responsible for any contract damages owed to Respondent. Because PMA
does not assign the work covered by the Board’s 10(k) determination, Respondent’s pursuit of
contract damages does not have a coercive effect on SSA’s assignment of work.1 In light of the
foregoing, Respondent’s actions do not subvert the Board’s 10(k) decision. Congress surely did
not intend for the Board to protect an employer who foments dispute by knowingly reneging on a
clear agreement with one union by later signing an irreconcilable agreement with another union.
Moreover, there can be no dispute that SSA understood this fact as it simultaneously negotiated
protection, in the form of indemnification from PMA, from grievances surely to be brought by
Respondent. SSA freely and knowingly chose to give the ILWU contractual claims to this work
because it does not risk paying damages in a grievance proceeding. In this circumstance, the
Board’s processes should not be made available to shield an intentionally wrongdoing SSA from
the natural consequences of its actions, particularly where the Respondent’s actions have no
coercive effect on SSA. The real nature of this dispute relieves Respondent of any prohibition
from seeking pay-in-lieu relief, under the Board’s July 22, 2011 10(k) decision, as SSA is not
thereby coerced.
1 Respondent further argues that, at a minimum, seeking a pay-in-lieu remedy for the time
period of the breach (July 1, 2008) until the Board’s 10(k) decision (July 22, 2011), could not be
coercive to SSA and in no way subverts the Board’s July 22, 2011 decision.
3. SSA’s position
SSA concurs with the General Counsel’s position.
III. Legal Analysis
Section 8(b)(4)(ii)(D) makes it unlawful for a union to threaten, coerce, or restrain any
person engaged in commerce where an object of that conduct is to force or require any
employer to assign particular work to employees in a particular labor organization rather than
employees in another labor organization. As the Supreme Court has indicated, by enacting this
provision Congress sought to protect employers and the public from the detrimental impact of
jurisdictional strikes. NLRB v. Plasterers’ Local 79, 404 U.S. 116, 130 (1971).
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The facts in this case, however, do not easily fall within the evil Congress sought to
forbid. As the Board has earlier found in its 10(k) award, Respondent has represented
employees performing M&R work for SSA and its predecessors for decades and that the then
existing collective bargaining indisputably covered that work. And as Arbitrator Cavanaugh
concluded SSA, PMA, and ILWU then decided to take that work away from employees
represented by Respondent and give that work to employees represented by ILWU, who had
never theretofore performed this work for SSA. To that extent, SSA was not an innocent
bystander caught up in a dispute not of its own making between two unions; rather, it created
the dispute. Yet in this proceeding the General Counsel seeks to shield SSA from the effects of
its breach of contract and even have Respondent reimburse SSA for the costs involved in
defending against Respondent’s clearly meriotious grievance!
Section 10(k) requires the Board to hear and determine the jurisdictional dispute. That
is, the Board is required to decide which labor organization gets the work. Section 10(k) also
requires that the Section 8(b)(4)(D) charge that triggered the 10(k) hearing be dismissed upon
compliance with the 10(k) award of the Board. So the issue in this case is whether or not
Respondent has complied with the Board’s 10(k) award of the work to ILWU. But the manner in
which the Board has fulfilled it obligations under Section 10(k) may be contributing to the
creation of jurisdictional disputes such as the one in this case. This is so because although the
Board applies a multifactor test in determining who should get the work, the result is always the
same—the Board awards the work to the labor organization to whom the employer itself has
most recently assigned the work. One may read the first few sentences of the 10(k) award to
ascertain to whom the employer has assigned the work most recently and then read no further
for the Board will certainly assign the work to that organization. So it did not require any
extensive legal analysis for SSA, PMA, and ILWU to feel confident that the Board would uphold
their decision to take the work from employees represented by Respondent.
Of course, once the Board awards the work the employees who normally would have
performed the work are likely out of a job. But what other remedies are available for those
employees whose collective-bargaining agreement has been violated and who suffered from the
dislocations caused them by their employer’s breach of the collective-bargaining agreement?
Here Respondent sought monetary damages for the employees it represents for the breach of
contract that deprived them of work. As the General Counsel correctly points out, it is well-
settled that after the Board issues its 10(k) award a union may not continue to obtain the
disputed work by requiring an employer to pay monetary damages until it does so. Plasters
Local 200 (Standard Drywall, Inc.) 357 NLRB No.160, slip op. at 3 (2011); Sheet Metal Workers
Local 27 (E.P. Donnelly, Inc.), 357 NLRB No. 131 (2011), and cases cited therein. Those cases
fit comfortably within conduct that is prohibited by Section 8(b)(4)(D) in that the unions engaged
in coercion (attempting to require an employer to pay money) for a prohibited object (forcing that
employer to assign work to that union). But what about the circumstances here, where
Respondent has clearly and unequivocally renounced the disputed work and seeks only
damages for SSA’s breach of contract? The General Counsel does not directly address this
issue. Rather he cites Iron Workers Local 433 (Otis Elevator), 309 NLRB 273, 274 (1992), aff’d.
46 F.3d 1143 (9th Cir. 1995). But there is no evidence in that case that the union there
unequivocally stated it does not seek, and would not accept the disputed work. The General
Counsel also cites Marble Polishers Local 47-T (Grazzini Bros.,) 315 NLRB 520, 523 fn. 9
(1994). But that case too is distinguishable in that the union never made an unequivocal
renunciation of the disputed work and the Board concluded that there had not even been a
contract between the employer and the union that would support a breach of contract. I
conclude that the General Counsel has failed to show that Respondent’s pursuit of monetary
damages was for the purpose of forcing SSA to assign the work back to employees represented
by Respondent; Respondent has clearly given up on that effort. The General Counsel also
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points to wording in some cases that a union may not “undermine” a Board’s 10(k) award. But
there is no statutory or direct case authority that bars all undermining; if Respondent sought to
regain the work through collective bargaining with SSA would that not “undermine” the Board’s
award? Nor is it clear that what Respondent has done here results in unlawful undermining.
Remember, the wording in the Board’s 10(k) award forbids Respondent from seeking the work
in a manner prohibited by Section 8(b)(4)(D).
Not only do I conclude that the General Counsel has failed to show that Respondent’s
conduct had a prohibited object, I also conclude that he has failed to show that the conduct has
restrained or coerced SSA. This is so because, as Respondent points out, PMA has agreed to
indemnify SSA of any costs arising from its breach of contract. This is not surprising given that
the fact that PMA could confidently assume the Board would affirm SSA’s taking of the work
from the employees who performed it for decades and, in breach of its collective-bargaining
obligations, give the work to the ILWU and then bar Respondent from seeking any effective
remedy for that breach. But nonetheless PMA’s conduct has served to assume any coercive
effect from Respondent’s conduct onto itself and away from SSA. Interestingly, in its brief ILWU
disagrees with the General Counsel and agrees with Respondent that SSA is not being coerced
under these unique circumstances. However, the General Counsel and ILWU counter by
correctly pointing out that Section 8(b)(4)(D) forbids conduct directed at any person engaged in
commerce and PMA is certainly such a person. The problem, however, is that the complaint
does not allege, and there is no charge supporting, any unlawful conduct directed towards PMA
by Respondent. Respondent should not be required to guess which employer it has alleged
restrained and coerces. At this point due process prevents litigation of that matter in this
proceeding.
In its brief Respondent argues:
Congress surely did not intend for the Board to protect an employer who foments dispute
by knowingly and blatantly reneging on a clear agreement with one union by later
signing an irreconcilable agreement with another union, all while procuring indemnity for
grievances that were inevitably to be brought by the IAM. The Board's processes should
not be made available to shield an intentionally wrongdoing SSA from the natural
consequences of its actions. . . .
I agree.
Core policies of the Act support the integrity of the collective-bargaining process,
collective-bargaining contracts, and stable, mature collective-bargaining relationships such as
existed between SSA and Respondent before SSA’s breach of contract. Core policies of the
Act discourage breaches of those contracts, encourage use of the grievance-arbitration process
and respect for properly issued arbitration awards. Core policies under the Act encourage
effective remedies for those breaches of contract so that the effects on employees are mitigated
to some degree. A confluence of factors under Section 8(b(4)(D) and Section 10(k) have
seemed to have undermined those policies in cases such as this. In the absence of clear
precedent I will not take the next step down this road.
JD(SF)–22–12
5
10
15
20
25
30
35
40
45
50
10
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
Order
The complaint is dismissed.
Dated, Washington, D.C., May 8, 2012.
____________________
William G. Kocol
Administrative Law Judge

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.