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

National Labor Relations Board - Board Decisions

Mar 12, 2014

360 N.L.R.B. 520 (N.L.R.B. 2014)

520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 64
International Association of Machinists and Aero-
space Workers District Lodge 160, Local Lodge
289 and SSA Marine, Inc. and International
Longshore and Warehouse Union. Cases 19–
CD–000502 and 19–CD–000506
March 12, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 8, 2012, Administrative Law Judge William
G. Kocol issued the attached decision. The General
Counsel, the Charging Party, and Intervenor filed excep-
tions and supporting briefs, and the Respondent filed an
answering brief to the exceptions. The Respondent filed
cross-exceptions and a supporting brief, and the General
Counsel and the Charging Party filed answering briefs to
the cross exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Decision and Order.
The judge found that the International Association of
Machinists and Aerospace Workers District Lodge 160,
Local Lodge 289 (IAM or Respondent), did not violate
Section 8(b)(4)(ii)(D) of the Act by maintaining an arbi-
tration action against the Charging Party, SSA Marine,
Inc. (Employer or SSA Marine), with an object of coerc-
ing the Employer to reassign certain disputed work to
employees it represented rather than to employees repre-
sented by the Intervenor, International Longshore and
Warehouse Union (ILWU). Accordingly, he dismissed
the complaint. For the reasons set forth below, we re-
verse.
I. BACKGROUND
1. The underlying work dispute
The Employer and its predecessors have operated ma-
rine cargo terminals and provided stevedoring services at
various ports on the Puget Sound in Washington, includ-
ing the Port of Seattle, where the instant dispute arose.
Since the 1940s, the Employer and the IAM have been
parties to several collective-bargaining agreements cov-
ering all maintenance and repair (M&R) work on equip-
ment owned or leased and operated by the Employer in
the Puget Sound area. The work in dispute here is the
maintenance and repair of the Employer’s stevedoring
and terminal service equipment while the equipment is
present at Terminal 91 in Seattle.
The Employer also has a longstanding relationship
with the ILWU, through the Pacific Maritime Associa-
tion (PMA), a multiemployer association that negotiated
collective-bargaining agreements with the ILWU on be-
half of approximately 70 companies at various ports on
the West Coast, including the Port of Seattle. For more
than 40 years, the Employer, as a member of the PMA,
has utilized ILWU-represented employees to provide
traditional longshore work, such as operating cargo-
handling equipment to load and unload vessels. The
ILWU-represented employees have also performed cer-
tain M&R work for the Employer and other PMA mem-
bers at several ports along the West Coast, but not in the
Puget Sound area.
On July 1, 2008, during the term of the latest collec-
tive-bargaining agreement between the IAM and the Em-
ployer, the PMA and the ILWU executed a Memoran-
dum of Understanding for the years 2008–2013 (MOU).
The MOU provided for the Employer to assign to ILWU-
represented mechanics the M&R work at “all new marine
terminal facilities” at which the Employer subsequently
commenced operations.
To assuage the Employer’s concerns about possible
repercussions from the MOU’s assignment of M&R
work to ILWU-represented employees, the Employer
asked for and received from the PMA an indemnification
agreement. This agreement provided that the PMA
would reimburse the Employer for damages resulting
from breaching its contract with the IAM, including if
the IAM were to seek and obtain “pay-in-lieu” relief.
On April 24, 2009, the Employer moved its preexisting
cruise ship operations from Terminal 30, where IAM-
represented employees had been performing the M&R
work, to Terminal 91, and it assigned the M&R work to
ILWU-represented employees.
The IAM filed a grievance challenging the Employer’s
assignment of the Terminal 91 M&R work to ILWU-
represented employees. On May 8, 2009, Arbitrator Mi-
chael Cavanaugh issued a decision and award sustaining
the grievance and directing the Employer to make its
IAM-represented employees whole. Cavanaugh did not,
however, direct the Employer to reassign the disputed
work to those employees.
On May 12, 2009, the Employer received a letter from
the IAM stating that it would take all actions necessary––
including picketing––to obtain reassignment of the M&R
work at Terminal 91 to employees represented by the
IAM. On June 10, 2009, the Employer filed a charge in
Case 19–CD–00502, alleging that the IAM’s letter con-
stituted an unlawful threat in violation of Section
8(b)(4)(D).
MACHINISTS LODGE 160 (SSA MARINE, INC.) 521
2. Procedural background
On January 22, 2010, the Board issued a Decision and
Determination of Dispute awarding the disputed work to
employees represented by the ILWU and not to employ-
ees represented by the IAM. 355 NLRB 23. On Febru-
ary 11, 2010, the IAM notified the Regional Director that
it intended to comply with the Board’s determination,
and the Region approved the withdrawal of the charge in
Case 19–CD–000502. But, in June 2010, the IAM noti-
fied Arbitrator Cavanaugh and the Employer that it was
seeking contractual pay-in-lieu remedies based on
Cavanaugh’s award and that it intended to seek enforce-
ment of the initial arbitral award. This resulted in the
filing of a second charge in Case 19–CD–000506 on
September 25, 2010.
On December 15, 2010, acting on the Employer’s re-
quest for reconsideration, the Board issued a new Deci-
sion and Determination of Dispute in Case 19–CD–
000502, affirming the award of the work to employees
represented by the ILWU. 356 NLRB 288. However,
due to procedural irregularities the Board subsequently
vacated that decision and remanded the matter to the
Regional Director for further action. 356 NLRB 1282.
On May 26 and 27, 2011, the Regional Director rein-
stated the charge in Case 19–CD000502 and filed a re-
quest with the Board to issue a new Decision and Deter-
mination of Dispute. On July 22, the Board issued an-
other Decision and Determination of Dispute, once again
awarding the disputed work to employees represented by
the ILWU. 357 NLRB 126. Among other things, the
Board’s decision ordered the IAM to notify the Regional
Director, within 14 days and in writing, whether it would
refrain from forcing the Employer, by means proscribed
by Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination. Id.
3. The current dispute
Following the Board’s July 22 Decision and Determi-
nation of Dispute, the IAM informed the Regional Direc-
tor that it would not withdraw its demand that the arbitra-
tor schedule a hearing regarding the contractual payment-
in-lieu relief. On October 31, 2011, the Regional Direc-
tor issued a consolidated complaint in Cases 19–CD–
000502 and 19–CD–000506 alleging that the IAM vio-
lated Section 8(b)(4)(ii)(D) by continuing to maintain,
and refusing to withdraw, its arbitral action seeking
monetary and/or contractual remedies, with an object of
forcing and requiring the Employer to assign the disputed
work to IAM-represented employees.
By letter to the Region dated November 10, 2011, the
IAM reiterated that it reserved the right to seek full con-
tractual monetary relief based on Arbitrator Cavanaugh’s
award if the Board were to rule in its favor.1 The IAM
stated that it intends to seek pay-in-lieu relief for the pe-
riod from July 1, 2008 (the date the PMA and the ILWU
executed the MOU), to July 21, 2011 (the day before the
Board’s Decision and Determination of Dispute), or, in
the alternative, from July 1, 2008, to the present, but no
other or additional relief.
4. The Adminstrative Law Judge’s Decision
The judge dismissed the consolidated complaint. He
acknowledged that a union violates Section 8(b)(4)(ii)(D)
by attempting to obtain disputed work, after a 10(k) de-
termination awarding the work to employees represented
by another union, by requiring an employer to pay mone-
tary damages. See Plasterers Local 200 (Standard Dry-
wall, Inc.), 357 NLRB 1921, 1923 (2011); Sheet Metal
Workers Local 27 (E.P. Donnelly, Inc.), 357 NLRB 1577
(2011), enfd. 737 F.3d 879 (3d Cir. 2013). The judge,
however, found that precedent inapposite here because
the IAM disclaimed interest in performing the disputed
work and seeks only damages for the Employer’s breach
of contract. The judge concluded that, in light of the
IAM’s disclaimer, the General Counsel failed to show
that its pursuit of pay-in-lieu damages had a prohibited
object under Section 8(b)(4)(ii)(D)—i.e., forcing the
Employer to assign the work to IAM-represented em-
ployees.
The judge also found that the Employer was not re-
strained or coerced by the IAM’s pursuit of pay-in-lieu
damages because the PMA had agreed to indemnify the
Employer against any costs arising from breaching its
contract with the IAM.2 Accordingly, he concluded that
PMA assumed any coercive effect from the IAM’s con-
duct onto itself and away from the Employer.
II. DISCUSSION
Section 8(b)(4)(ii)(D) makes it an unfair labor practice
to “threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where
in either case an object thereof is . . . forcing or requiring
any employer to assign particular work to employees in a
particular labor organization . . . rather than to employees
in another labor organization.” It is well established that
a union violates Section 8(b)(4)(ii)(D) by maintaining a
lawsuit or arbitration to obtain work awarded by the

1 The letter stated that the IAM would not attempt to enforce the ar-
bitration award until the Board resolved the instant case.
2 The judge rejected, on due process grounds, the General Counsel’s
and the ILWU’s arguments that Sec. 8(b)(4)(ii)(D) would prohibit the
coercion of PMA as well as the Employer. The judge pointed out that
the complaint did not allege, and there is no charge supporting, any
unlawful conduct directed towards the PMA, and the IAM should not
have to guess which employer it is alleged to have restrained and co-
erced.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD522
Board under Section 10(k) to employees represented by
another union. See, e.g., Laborers Local 261 (W. B.
Skinner, Inc.), 292 NLRB 1035, 1035 (1989). Moreover,
it is equally well established that a union violates Section
8(b)(4)(ii)(D) by maintaining a lawsuit or arbitration to
obtain monetary damages in lieu of the work. See
Standard Drywall, supra at 1923; E. P. Donnelly, supra
at 1579 and cases cited at fn. 5.
Here, the stipulated facts show that, since the Board’s
10(k) determination awarding the disputed work to em-
ployees represented by the ILWU, the IAM has refused
to withdraw, and continued to maintain, an action against
the Employer seeking pay-in-lieu or other monetary rem-
edies based on the arbitrator’s May 8, 2009 decision.
Accordingly, the IAM’s actions violate Section
8(b)(4)(ii)(D).
Furthermore, there is no merit in the IAM’s conten-
tion, accepted by the judge that this case is distinguisha-
ble from those cited above because of the IAM’s putative
“disclaimer of interest” in the disputed work. As stated,
a union’s continued pursuit of monetary damages in lieu
of the work after a contrary 10(k) determination is coer-
cive within the meaning of Section 8(b)(4)(ii)(D). See
Roofers Local 30 (Gundle Construction), 307 NLRB
1429, 1430 (1992), enfd. 1 F.3d 1419 (3d Cir. 1993);
Longshoremen ILWU Local 13 (Sea-Land), 290 NLRB
616 (1988), enfd. 884 F.2d 1407 (D.C. Cir. 1989); Long-
shoremen ILWU Local 32 (Weyerhaeuser Co.), 271
NLRB 759 (1984), enfd. sub nom. Longshoremen ILWU
Local 32 (Weyerhaeuser) v. Pacific Maritime Assn., 773
F.2d 1012 (9th Cir. 1985), cert. denied 476 U.S. 1158
(1986). Moreover, a union’s pursuit of monetary damag-
es in these circumstances is coercive even where, as here,
it is accompanied by an express disclaimer of interest in
having employees it represents assigned to perform the
disputed work. See Gundle Construction, 307 NLRB at
1430.
Finally, we find, contrary to the judge, that the Em-
ployer’s indemnification agreement with the PMA does
not provide an alternative ground for dismissing the
8(b)(4)(ii)(D) allegation against the IAM. Simply put,
the IAM is seeking contractual damages against the Em-
ployer, not the PMA, and the pursuit of the claim is coer-
cive under Section 8(b)(4)(ii)(D) regardless whether the
claim ultimately succeeds. See Standard Drywall, supra
1923 (“It is well settled that a union’s pursuit of a law-
suit or arbitration to obtain . . . monetary damages in lieu
of the work . . . violates Section 8(b)(4)(ii)(D).”) (Em-
phasis added.). Thus, for 8(b)(4)(ii)(D) purposes, it is of
no consequence that the Employer may have an indemni-
fication agreement with a third party under which it
would be reimbursed for monetary costs arising from a
breach of contract.3
For the foregoing reasons, we conclude that the IAM
violated Section 8(b)(4)(ii)(D) by refusing to withdraw,
and otherwise continuing to maintain, an action against
the Employer seeking to enforce Arbitrator Cavanaugh’s
award and to obtain pay-in-lieu or other monetary reme-
dies pertaining to disputed work after the Board awarded
that work to employees represented by the ILWU.
CONCLUSIONSOF LAW
1. SSA Marine, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Association of Machinists and Aero-
space Workers District Lodge 160, Local Lodge 289 and
International Longshore and Warehouse Union are each
labor organizations within the meaning of Section 2(5) of
the Act.
3. By refusing to withdraw and otherwise continuing
to maintain an action against the Employer seeking to
enforce Arbitrator Cavanaugh’s May 8, 2009 decision
and to obtain pay-in-lieu or other monetary remedies,
contrary to the Board’s Decision and Determination of
Dispute in 357 NLRB 126 (2011), the Respondent vio-
lated Section 8(b)(4)(ii)(D) of the Act.
REMEDY
Having found that the Respondent has engaged in an
unfair labor practice proscribed by Section 8(b)(4)(ii)(D)
of the Act, we shall order it to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, International Association of Machinists and
Aerospace Workers District Lodge 160, Local Lodge
289, Seattle, Washington, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Refusing to withdraw and otherwise continuing to
maintain an action against SSA Marine, Inc. seeking to
enforce Arbitrator Cavanaugh’s award and to obtain pay-
in-lieu or other monetary remedies, contrary to the

3 In E. P. Donnelly, supra at 1580, the Board found that a claim for
declaratory relief for breach of contract constitutes coercion in violation
of Sec. 8(b)(4)(ii)(D), even in the absence of monetary relief. Here,
likewise, any arbitration award for lost wages would be based on the
arbitrator’s finding that the Employer violated its collective-bargaining
agreement with the IAM. It follows that the IAM’s pursuit of such a
finding would itself constitute coercion sufficient to violate Sec.
8(b)(4)(ii)(D), regardless of whether the Employer or the PMA would
ultimately be responsible for any monetary damages.
MACHINISTS LODGE 160 (SSA MARINE, INC.) 523
Board’s Decision and Determination of Dispute in 357
NLRB 126 (2011). The work consists of:
The maintenance and repair of SSA Marine’s stevedor-
ing and terminal service equipment while it is present at
Terminal 91 in Seattle, Washington.
(b) Refusing to comply with the Board’s Decision and
Determination of Dispute reported at 357 NLRB 126
(2011).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Seek the withdrawal of the Cavanaugh arbitration
award against SSA Marine, Inc.
(b) Within 14 days after service by the Region, post in
conspicuous places in its Puget Sound, Washington busi-
ness offices, meeting halls, and all places where notices
to members are customarily posted, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized
representatives, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to members are
customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its members by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Within 14 days after service by the Region, deliver
to the Regional Director for Region 19 signed copies of
the notice in sufficient number for posting by SSA Ma-
rine, Inc. at its Puget Sound, Washington facility, in all
places where notices to employees are usually posted, if
the Employer is willing.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to withdraw or otherwise main-
tain an action against SSA Marine, Inc. seeking to en-
force Arbitrator Cavanaugh’s May 8, 2009 award and to
obtain pay-in-lieu or other monetary remedies, contrary
to the Board’s Decision and Determination of Dispute in
357 NLRB 126 (2011).
WE WILL seek the withdrawal of Arbitrator
Cavanaugh’s award against SSA Marine, Inc.
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS DISTRICT LODGE
160, LOCAL LODGE 289
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 ap-
proved by me on March 19, 2012. SSA Marine, Inc. (herein
SSA) filed the charge in Case 19–CD–000502 on June 10,
2009, and the charge in Case 19–CD–000506 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 Associa-
tion of Machinists and Aerospace Workers District Lodge 160,
Local Lodge 289 (Respondent) demanded that SSA assign
certain work to employees it represents rather than to employ-
ees represented by the International Longshore and Warehouse
Union (ILWU) but thereafter, the Board assigned the work to
the ILWU represented employees. The complaint alleges that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD524
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 undermin-
ing 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.
On the entire record and after considering the briefs filed by
the General Counsel,1 Respondent, SSA,2 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 ter-
minals. 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 with-
in 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 (PMA) is a multiemployer col-
lective-bargaining agent. Its members include the approximate-
ly 50 for-profit stevedore companies, marine terminal opera-
tors, and maintenance contractors who employ longshoremen,
mechanics, and other categories of dockworkers at waterfront
facilities located at ports in Washington, Oregon, and Califor-
nia, 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 em-
ployer-members of PMA have duly authorized PMA to repre-
sent them in negotiations with the ILWU over the terms and
conditions of employment for a coastwide multiemployer bar-
gaining unit of employees performing work described in the
ILWU–PMA Pacific Coast Longshore & Clerks Agreement
(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

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.
maintenance and repair work in the Puget Sound area to em-
ployees 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 pre-
sent at Terminal 91 in Seattle, Washington (the disputed work),
to employees who are represented by the ILWU, and who are
neither members of, nor represented by, Respondent. Respond-
ent has not been certified by the Board as the exclusive collec-
tive-bargaining representative of any of the employees perform-
ing the disputed work, nor has the Board issued any order de-
termining 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, ra-
ther 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 steve-
doring services in Puget Sound, including at cruise ship ter-
minals 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 agree-
ment covering employees in its International Longshore &
Warehouse Union (ILWU) bargaining unit. As part of the
PMA/ILWU Agreement for the years 2008–2013, mainte-
nance work on equipment used at “new” facilities was as-
signed 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 subcontract-
ing its maintenance work to Harbor and its ILWU work force,
the Employer has violated the terms of the SSA/IAM Agree-
ment because that Agreement unequivocally preserves histor-
ical 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
MACHINISTS LODGE 160 (SSA MARINE, INC.) 525
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 histori-
cally performed by the members of the bargaining unit will
continue to be performed by the members of the bargain-
ing 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 Re-
spondent. 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 collec-
tive-bargaining agreement with SSA, and to make the Re-
spondent-represented employees whole.
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–00502. Be-
tween 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 Deci-
sion 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 Sec-
tion 8(b)(4)(D) of the Act to force SSA Marine to assign the
disputed work to employees represented by Respondent. Fol-
lowing 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–00502.
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 re-
lief, SSA filed the charge in Case 19–CD–00506 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 De-
termination of Dispute, which is reported at 356 NLRB 288,
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 re-
ported at 356 NLRB 1282, in which it vacated the above Deci-
sion 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–00502 and reinstated the charge.
On July 22, 2011, the Board issued its Decision and Determina-
tion of Dispute, which is reported at 357 NLRB 126, 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 Determina-
tion 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 dat-
ed November 10, 2011, Respondent has agreed not to take any
actions to enforce Arbitrator Cavanaugh’s May 8, 2009 Deci-
sion 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, 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 with-
in 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 Understand-
ing (MOU) provision that assigns to the ILWU “the mainte-
nance and repair work on all new marine terminals that com-
mence operations after July 1, 2008,” SSA asked for and re-
ceived from PMA an agreement that promises to reimburse
SSA for damages that come about as a result of SSA’s breach-
ing its contract with Respondent for the assignment of the dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD526
puted 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, co-
erced or restrained any person engaged in commerce or in an
industry affecting commerce with an unlawful object in viola-
tion of Section 8(b)(4)(ii)(D) of the Act by refusing to with-
draw and otherwise continuing to maintain its legal action seek-
ing to obtain any pay-in-lieu or other monetary remedy to en-
force 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 Section 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 reas-
sign the disputed work to employees represented by Respond-
ent. 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 vari-
ous 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 employ-
ees of SSA represented by ILWU were entitled to perform the
disputed work and that Respondent was not entitled by means
proscribed by Section 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 con-
tractual 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 con-
tinues 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 follow-
ing the Board’s July 22, 2011 10(k) determination violates the
Act. Settled Board law is clear that such post-10(k) determina-
tion conduct is proscribed by Section 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 be-
cause SSA had ILWU-represented employees perform the dis-
puted work, directly undermines the Board’s 10(k) determina-
tion 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 dam-
ages awarded. Under well-established Board law, seeking con-
tractual pay-in-lieu relief for employees not entitled to perform
the disputed work under the Board’s 10(k) determination con-
stitutes unlawful coercion in violation of Section 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 Re-
spondent 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 agree-
ment providing that M&R work at “new” Puget Sound termi-
nals 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 deci-
sion in abeyance pending the outcome of this proceeding. Re-
spondent’s pursuit of pay-in-lieu remedy on the foregoing facts
does not subvert the Board’s 10(k) award. A pay-in-lieu reme-
dy 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 set-
tled law that 10(k) determinations are undermined when con-
MACHINISTS LODGE 160 (SSA MARINE, INC.) 527
fronted with inconsistent arbitral decisions because “an em-
ployer would be presented with a choice of either complying
with the Board’s decision and risking Section 301 damages, or
complying with an arbitrator’s decision which was contrary to
the Board’s determination.” Carpenters Local 33 (AGC of Mas-
sachusetts), 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 com-
pletely indemnified from any financial loss related to the arbi-
tral 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 indem-
nification agreement with SSA because it was in the “best in-
terest of the industry for SSA to go along with that commit-
ment.” 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 con-
tract damages. See, e.g., AGC of Massachusetts, supra; Iron
Workers Local 751 (Hoffman Construction), 293 NLRB 570
(1989); Laborers Local 731 (Slattery Associates), 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.3 In light of the foregoing, Re-
spondent’s actions do not subvert the Board’s 10(k) decision.
Congress surely did not intend for the Board to protect an em-
ployer 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 dis-
pute that SSA understood this fact as it simultaneously negoti-
ated 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

3 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.
Board’s July 22, 2011 10(k) decision, as SSA is not thereby
coerced.
3. SA’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 em-
ployer to assign particular work to employees in a particular
labor organization rather than employees in another labor or-
ganization. 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).
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 per-
forming 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 re-
imburse SSA for the costs involved in defending against Re-
spondent’s clearly meritorious 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 8(b)(4)(D) charge that triggered the 10(k) hear-
ing 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 obli-
gations 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 deter-
mining 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 con-
fident 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 employ-
ees whose collective-bargaining agreement has been violated
and who suffered from the dislocations caused them by their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD528
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 em-
ployer to pay monetary damages until it does so. Plasterers
Local 200 (Standard Drywall, Inc.), 357 NLRB 1921, slip op.
at 3 (2011); Sheet Metal Workers Local 27 (E.P. Donnelly,
Inc.), 357 NLRB 1577 (2011), and cases cited therein. Those
cases fit comfortably within conduct that is prohibited by Sec-
tion 8(b)(4)(D) in that the unions engaged in coercion (attempt-
ing to require an employer to pay money) for a prohibited ob-
ject (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), affd. 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 une-
quivocal renunciation of the disputed work and the Board con-
cluded that there had not even been a contract between the em-
ployer and the union that would support a breach of contract. I
conclude that the General Counsel has failed to show that Re-
spondent’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 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 undermin-
ing; 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 re-
strained 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 co-
ercive 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 re-
quired 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 pro-
curing 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 collec-
tive-bargaining process, collective-bargaining contracts, and
stable, mature collective-bargaining relationships such as exist-
ed between SSA and Respondent before SSA’s breach of con-
tract. 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 poli-
cies under the Act encourage effective remedies for those
breaches of contract so that the effects on employees are miti-
gated 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.
On these findings of fact and conclusions of law and on the
[Recommended Order omitted from publication.]