PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC

National Labor Relations Board - Board Decisions

May 2, 2018

366 NLRB No. 76 (N.L.R.B. 2018)

366 NLRB No. 76
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.
Ports America Outer Harbor, LLC, currently known
as Outer Harbor Terminal, LLC and Interna-
tional Association of Machinists and Aerospace
Workers, District Lodge 190, East Bay Automo-
tive Machinists Lodge No. 1546, International
Association of Machinists and Aerospace Work-
ers, AFL–CIO/CLC.
International Longshore and Warehouse Union and
International Association of Machinists and
Aerospace Workers, District Lodge 190, East
Bay Automotive Machinists Lodge No. 1546, In-
ternational Association of Machinists and Aero-
space Workers, AFL–CIO/CLC. Cases 32–CA–
110280 and 32–CB–118735
May 2, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
On December 1, 2016, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent Union filed exceptions and a supporting
brief, the General Counsel and the Charging Party each
filed an answering brief, and the Respondent Union filed
a reply. The Charging Party filed cross-exceptions and a
supporting brief, and the Respondent Union filed an an-
swering brief.
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 and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and

1 The Respondent Union has excepted to some of the judge’s credi-
bility determinations. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
We reject the Respondent Union’s claim that it was denied due pro-
cess because it did not receive timely notice of the scope of the unit
alleged to be appropriate by the General Counsel—specifically, wheth-
er the General Counsel was alleging that the unit included crane me-
chanics. The unit found appropriate by the judge, a finding we have
affirmed, is the same unit alleged in the complaint, and there is no
dispute that crane mechanics are excluded from that unit. In these
circumstances, we reject the Respondent Union’s claim that anything in
the manner in which the General Counsel litigated the case could have
misled the Respondents into believing that the alleged unit included
crane mechanics.
to adopt her recommended Order as modified and set
forth in full below.2
In 1999, the Port of Oakland leased berths 20–24 to
marine terminal operator A.P. Moller-Maersk (Maersk).
At that time, the International Association of Machinists
and Aerospace Workers, District Lodge 190, and East
Bay Automotive Machinists Lodge No. 1546, Interna-
tional Association of Machinists and Aerospace Work-
ers, AFL–CIO/CLC (Machinists) represented the em-
ployees performing marine terminal maintenance and
repair work (M&R work) at those berths. Maersk con-
tracted the M&R work to Pacific Marine Maintenance
Company, LLC (PMMC), which recognized the Machin-
ists and adopted the predecessor’s collective-bargaining
agreement with the Machinists. In 2005, Pacific Crane
Maintenance Company, Inc. (PCMC) took over the
M&R work at berths 20–24, hired the PMMC unit em-
ployees, but recognized the International Longshore and
Warehouse Union (ILWU) as their representative and
applied to those employees the coastwide multi-employer
collective-bargaining agreement between the ILWU and
the Pacific Maritime Association (PMA-ILWU Agree-
ment). In PCMC/Pacific Crane Maintenance Co., 359
NLRB 1206 (2013), reaffirmed in 362 NLRB No. 120
(2015) (PCMC), the Board found, among other things,
that PMMC and PCMC, a single employer, violated the
Act by withdrawing recognition from the Machinists,
recognizing the ILWU when the ILWU did not represent
an uncoerced majority of unit employees, and applying
the terms of the PMA-ILWU Agreement to the unit em-
ployees. The Board further found that the ILWU violat-
ed the Act by accepting such recognition and agreeing to
apply the PMA-ILWU Agreement, including its union-
security provisions, to the unit employees.
In January 2010, Respondent Ports America Outer
Harbor, LLC (PAOH) took over the operation of berths
20–24 at the Port of Oakland and contracted the M&R
work to PCMC’s successor, Pacific Crane Maintenance
Co., LP (PCMC II).3 PCMC II continued to recognize

2 In declining to recommend a broad cease-and-desist order against
the Respondent Union, the judge relied on Postal Service, 354 NLRB
412 (2009). We agree with the judge that a broad order is unwarranted
in this case, but we do not rely on her citation of Postal Service, which
was decided by a two-member Board and thus in the absence of a quor-
um. See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010).
We have amended the judge’s conclusions of law and remedy and
modified her recommended Order to conform to the violations found
and the Board’s standard remedial language. We shall substitute a new
notice to conform to the Order as modified.
3 PCMC II is a named respondent in the Board’s decision in PCMC
and a successor employer to PMMC and PCMC under both NLRB v.
Burns International Security Services, 406 U.S. 272 (1972), and Gold-
en State Bottling v. NLRB, 414 U.S. 168 (1973). See PCMC, 359
NLRB at 1207 fn. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the ILWU and to apply the PMA-ILWU Agreement to
the unit employees. In October 2010, PAOH took over
the operation of berths 25 and 26 at the Port of Oakland.
The M&R work at those berths had been performed by
Machinists-represented employees of marine terminal
operator Transbay Container Terminal. PAOH extended
its service contract with PCMC II to cover the M&R
work at berths 20–26, and PCMC II included the former
Machinists-represented employees of Transbay Contain-
er Terminal along with the existing unit employees in the
ILWU unit. Finally, in July 2013,4 having decided to
take over the work itself, PAOH cancelled its contract
with PCMC II and hired the employees that previously
had worked for PCMC II at Berths 20–26. Despite the
Machinists’ bargaining demand, PAOH recognized the
ILWU and applied the PMA-ILWU Agreement to the
unit employees.
The main issue presented in this case is whether Re-
spondent PAOH is a successor employer to PCMC II. If
so, then, consistent with the Board’s prior decision in
PCMC, it violated Section 8(a)(5) and (1) of the Act by
failing and refusing to recognize and bargain with the
Machinists and further violated Section 8(a)(2) and (1)
by recognizing the ILWU as the representative of the unit
employees and applying the PMA-ILWU Agreement,
including its union-security clause, to those employees;
and the ILWU violated Section 8(b)(1)(A) and (2) by
accepting such recognition. The judge found that PAOH
became a successor employer to PCMC II when it took
over performance of the M&R work on July 1. For the
reasons stated in the judge’s decision as well as those
discussed below, we agree.
An employer is a successor employer obligated to rec-
ognize and bargain with the union representing the pre-
decessor’s employees when (1) the successor acquires,
and continues in substantially unchanged form, the busi-
ness of a unionized predecessor (the “substantial continu-
ity” requirement); (2) the successor hires, as a majority
of its workforce at the acquired facility, union-
represented former employees of the predecessor (the
“workforce majority” requirement); and (3) the unit re-
mains appropriate for collective bargaining under
the successor’s operations. Whether the “workforce ma-
jority” requirement has been met is determined as of the
time the successor has hired a substantial and representa-
tive complement of employees. Finally, assuming all
other requisites are established, the successor’s duty to
bargain attaches if the union has demanded recognition
or bargaining, even if the union’s demand was made be-
fore the other requirements for successorship had been

4 All dates hereafter are in 2013 unless stated otherwise.
met. See Burns, 406 U.S. at 280–281; Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27, 43–54 (1987).
We find that the judge correctly applied this test to the
facts here.
To begin, we agree with the judge that the General
Counsel established substantial continuity between
PCMC II and PAOH. The record shows that after the
M&R operation changed hands in July, the unit employ-
ees continued to perform the same jobs under generally
the same working conditions and under most of the unit’s
former supervisors.5 The ILWU failed to present any
evidence showing that the day-to-day life of the unit em-
ployees was significantly different after PAOH took over
the M&R operations. Thus, as the judge observed, for-
mer PCMC II employees hired by PAOH would “under-
standably view their job situations as essentially unal-
tered.” Fall River Dyeing, 482 U.S. at 43 (internal quo-
tation omitted); see also A. J. Myers & Sons, Inc., 362
NLRB No. 51, slip op. at 7 (2015) (differences in equip-
ment, location, and supervision did not defeat finding of
continuity of operations); Van Lear Equipment, Inc., 336
NLRB 1059, 1063–1064 (2001) (finding substantial con-
tinuity, notwithstanding that new employer provided a
different supervisor, different pay rates and benefits, and
newer buses to drive, where employee bus drivers were
performing the same work that they performed for the
predecessor).
Moreover, on July 1, when PAOH hired a substantial
and representative complement of employees, a majority
of its employees performing bargaining-unit work were
former PCMC II employees. Indeed, the record shows
that as of July 1, all steady mechanics employed by
PAOH previously worked for PCMC II at berths 20–26.6

5 There is no dispute that PAOH M&R Director Gilbert Currier and
M&R Manager Michael Loftesnes, along with M&R Supervisors Rob-
ert Walker and Brad Stolison, oversaw the work of the M&R depart-
ments and supervised the M&R mechanics for PCMC II and thereafter
for PAOH. Although PAOH did not hire former PCMC II manager Joe
Ray, the record suggests that Ray had an extremely limited supervisory
role, as he just did paperwork and gave the M&R mechanics no direct
instructions. Moreover, both Currier and Loftesnes testified that the
work performed by the M&R mechanics did not change after PAOH’s
takeover. Employee Bobby Payne also testified that his job duties
remained the same, notwithstanding a slight change in his work loca-
tion (from berth 24 to berth 25). Lastly, in adopting the judge’s finding
that PAOH’s employees’ jobs and working conditions remained the
same, we do not consider its predecessors’ assignment of their employ-
ees to nonunit positions in the crane department and nonunit locations
(berths 30 and 55–56), as such conduct was held unlawful in PCMC,
359 NLRB at 1211, and remained unremedied as of July 1.
6 The ILWU does not specifically argue that PAOH did not employ a
substantial and representative complement of employees as of July 1,
and in any event we agree with the judge that it did. In these circum-
stances, we reject the ILWU’s argument that PAOH’s employment of
additional non-crane mechanics after July 1 calls into question the
judge’s finding of majority status. Therefore, we find it unnecessary to
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 3
The ILWU argues, however, that the judge should have
considered non-steady mechanics—temporary employ-
ees PAOH employed through the PMA-ILWU joint dis-
patch hall under the PMA-ILWU Agreement between
July 1 and December 31. We reject this contention be-
cause PAOH’s use of non-steady employees to supple-
ment the bargaining unit was a product of the unlawful
application of the PMA-ILWU Agreement to the unit.
PCMC, above, 359 NLRB at 1211.7
Further, we agree with the judge that a unit consisting
of employees performing the M&R work at berths 20–26
at the Port of Oakland remained an appropriate unit un-
der PAOH’s operations. As the judge found, non-crane
mechanics continued to perform M&R container and
equipment repair and were not interchanged with crane
mechanics. Also, the record shows that non-crane me-
chanics worked at different locations than crane mechan-
ics. In these circumstances, we find that non-crane me-
chanics remained a separate and distinct group under
PAOH’s operations. Cf. Bronx Health Plan, 326 NLRB
810, 812 (1998) (finding a unit appropriate under succes-
sor’s operations where the alleged unit employees per-
formed a distinct function from that traditionally per-
formed by employees in the larger unit under the prede-
cessor, they had been physically separated from the larg-
er unit, and they had not been subject to interchange with
the larger unit), enfd. 203 F.3d 51 (D.C. Cir. 1999).8
We also agree with the judge that there is no merit in
the ILWU’s claim that the alleged unit was no longer
appropriate under PAOH’s operations. Other than its
accretion defense, which we reject as discussed below,
the ILWU argues that PAOH was not required to recog-
nize the Machinists as the representative of the alleged
unit because the employees had been part of the ILWU
coastwide bargaining unit for at least 8 years before
PAOH’s takeover. We reject this argument because the
unit employees’ representation by the ILWU and their
inclusion in the ILWU-PMA coastwide unit was a direct
result of the predecessor employers’ unlawful assistance
to and recognition of the ILWU. In making unit deter-

pass on the ILWU’s argument that additional non-crane mechanics who
started working for PAOH on July 13 previously worked for PCMC II
at locations other than berths 20–26.
7 We also note that the ILWU does not contend that former PCMC II
employees did not constitute a majority of the unit employees on July 1
had the judge considered both steady and non-steady mechanics hired
by PAOH.
8 The judge, at one place, inadvertently misstated that the work of
the unit employees included maintenance and repair of cranes. The
judge’s misstatement is a harmless error and does not affect our deci-
sion. As the judge’s recommended Order correctly indicated, the bar-
gaining-unit work is limited to non-crane M&R work. Also, in deter-
mining whether PAOH is a successor employer, we have not consid-
ered its crane department operations.
minations, the Board gives no weight to bargaining histo-
ry where the union involved has already been found to
have been illegally assisted by the employer. See, e.g.,
Pacific Telephone and Telegraph Co., 80 NLRB 107,
112 (1948).
In addition, the ILWU argues that the alleged unit did
not remain appropriate because the “unit work at issue in
the PCMC case” represented a tiny fraction of the M&R
work in 2013. Specifically, the ILWU argues that
PCMC’s primary customer was Maersk, whereas Maersk
containers comprised only a small percentage of the con-
tainer volume at berths 20–26 after 2010. Again, we are
unpersuaded by the ILWU’s argument. The unit in this
case is defined by the work performed (noncrane M&R
work at berths 20–26), not by the customer for whom the
work is performed. Moreover, a change in the identity of
customers served will not defeat a successorship finding
where, as here, the employees continue to perform the
same work in the same location using the same equip-
ment. See Mondovi Foods Corp., 235 NLRB 1080,
1081–1082 (1978).9
For these reasons, we agree with the judge that as of
July 1, PAOH was a successor employer to PCMC II.
And because the Machinists had requested bargaining,
we further agree that PAOH violated the Act by failing to
recognize and bargain with the Machinists. PAOH fur-
ther violated the Act by instead recognizing the ILWU as
the representative of the unit employees and applying the
PMA-ILWU Agreement, including its union-security
provisions, to those employees, and Respondent ILWU
violated the Act by accepting such recognition and agree-
ing to apply the PMA-ILWU Agreement to the unit em-
ployees.10

9 The ILWU argues that the judge erroneously precluded its argu-
ment and evidence on the issue of the appropriateness of the alleged
unit. However, each Respondent did dispute the appropriateness of the
unit in its posthearing brief, and the judge considered and rejected those
contentions. In addition, we will reverse a judge’s evidentiary ruling
only when the party urging such reversal demonstrates that the judge’s
ruling was not only erroneous, but also prejudicial to its substantive
rights. Monroe Mfg., 323 NLRB 24, 25 (1997). Assuming arguendo
that the judge’s ruling was erroneous, the ILWU has not shown that the
evidence it seeks to admit would warrant reversal of the judge’s finding
on the issue of unit appropriateness. Specifically, the excluded evi-
dence was offered to show that the unit was no longer appropriate
because it had been accreted to the ILWU coastwide unit under the
PMA-ILWU Agreement. The Board has held, however, that the appli-
cation of the PMA-ILWU Agreement to PCMC/PCMC II’s non-crane
mechanics was an unlawful unilateral change, which therefore could
not be relied on in determining whether the unit of non-crane mechan-
ics retained its separate identity. See PCMC, 359 NLRB at 1211.
10 We find no merit in the ILWU’s exception to the judge’s ruling re-
jecting evidence concerning the ILWU’s alleged majority support
among the unit of non-crane mechanics at berths 20–26 in the Port of
Oakland. As the judge observed, the proffered evidence that the unit
employees were members of the ILWU prior to PAOH’s 2013 takeover
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
AMENDED CONCLUSIONS OF LAW
1. Insert the following as Conclusion of Law 1 and re-
number the subsequent paragraphs accordingly:
“1. Ports America Outer Harbor, LLC, currently known
as Outer Harbor Terminal, LLC, is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.”
2. Insert the following as Conclusion of Law 2 and re-
number the subsequent paragraphs accordingly:
“2. Machinists District Lodge 190 and East Bay Auto-
motive Machinists Lodge No. 1546, affiliated with the
International Association of Machinists and Aerospace
Workers, AFL–CIO/CLC (Machinists or IAM), and
the International Longshore and Warehouse Union
(ILWU or the Respondent Union) are labor organiza-
tions within the meaning of Section 2(5) of the Act.”
3. Insert the following as Conclusion of Law 3 and re-
number the subsequent paragraphs accordingly:
“3. The Machinists is, and at all material times has
been, the exclusive collective-bargaining representative
of employees in the following appropriate unit:
All employees employed at Berths 20 through 26 at the
Port of Oakland, Oakland, California performing work
described in and covered by ‘Article 1, Section 2. Work
Jurisdiction’ of the April 1, 2002 through March 31,
2005 collective-bargaining agreement between the In-
ternational Association of Machinists and Aerospace
Workers, AFL–CIO and Pacific Marine Maintenance
Co. LLC (the Machinists-PMMC Agreement); exclud-
ing all other employees, guards, and supervisors as de-
fined in the Act.”
AMENDED REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist from engaging in such conduct and, as
explained in the remedy section of the judge’s decision,
to take certain affirmative action designed to effectuate
the policies of the Act. Among other remedies, the judge
recommended an affirmative bargaining order to remedy

is irrelevant, given that predecessor employers had unlawfully applied
the PMA-ILWU Agreement, including its union-security provisions, to
non-crane mechanics in the Port of Oakland since 2005. See PCMC,
359 NLRB at 1211. Moreover, the Board’s determination of “majority
support” turns on whether a majority of unit employees wish to be
represented by a particular union, not on whether a majority of them are
members of that union. See Trans-Lux Midwest Corp., 335 NLRB 230,
232 (2001), enfd. mem. 53 Fed. Appx. 571 (D.C. Cir. 2002). For the
same reasons, we also find no merit to the ILWU’s exceptions to the
judge’s ruling precluding evidence or argument concerning PAOH’s
alleged good-faith doubt of the Machinists’ majority status premised on
the employees’ ILWU membership.
the Respondent Employer’s unlawful refusal to bargain
with the Machinists.
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining
order is warranted in this case as a remedy for the Re-
spondent Employer’s unlawful refusal to recognize and
bargain with the Machinists. The Board adheres to the
view that an affirmative bargaining order is “the tradi-
tional, appropriate remedy for an 8(a)(5) refusal to bar-
gain with the lawful collective-bargaining representative
of an appropriate unit of employees.” Id. at 68.11
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required the
Board to justify, on the facts of each case, the imposition
of an affirmative bargaining order. See, e.g., Vincent
Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738–739
(D.C. Cir. 2000); Lee Lumber & Building Material Corp.
v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In Vincent, above at 738, the court
summarized its requirement that an affirmative bargain-
ing order “must be justified by a reasoned analysis that
includes an explicit balancing of three considerations: (1)
the employees’ § 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.”
Although the Board has respectfully disagreed with the
court’s requirement for the reasons set forth in Caterair,
above, we have examined the particular facts of this case
and find that a balancing of the three factors warrants an
affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees, who
were denied the benefits of collective bargaining through
their designated representative by the Respondent Em-
ployer’s refusal to recognize and bargain collectively
with the Machinists and its recognition of the ILWU, and
by the ILWU’s acceptance of that recognition. A bar-
gaining order is particularly necessary to vindicate the

11 Members Kaplan and Emanuel express no view as to whether
Caterair International was correctly decided in this regard. However,
they acknowledge that Caterair is extant Board precedent.
At a certain point, PAOH became known as Outer Harbor Terminal,
LLC (OHT). In March 2016, PAOH/OHT ceased operations and filed
Chapter 11 bankruptcy proceedings. However, the Board has issued an
affirmative bargaining order even when a successor employer ceased its
operations during the proceedings. See, e.g., Dunmyre Motor Express,
Inc., 275 NLRB 299, 300 (1985); Emsing’s Supermarket, Inc., 284
NLRB 302, 305 (1987), enfd. 872 F.2d 1279 (7th Cir. 1989). The
judge’s recommended affirmative bargaining order, which we find
warranted, will apply in the event PAOH/OHT resumes operations.
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 5
unit employees’ Section 7 rights in this case because
those employees were not only denied representation by
the Machinists but also unlawfully required to join the
ILWU as a condition of their employment. At the same
time, an affirmative bargaining order, with its attendant
bar to raising a question concerning the Machinists’ con-
tinuing majority status for a reasonable period of time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued representation by the
Machinists. The duration of the order is no longer than is
reasonably necessary to remedy the ill effects of the vio-
lation. It is only by restoring the status quo ante and re-
quiring the Respondent Employer to bargain with the
Machinists for a reasonable period of time that the em-
ployees will be able to fairly assess the Machinists’ ef-
fectiveness as a bargaining representative in an atmos-
phere free of the Respondent Employer’s unlawful con-
duct. The employees can then determine whether con-
tinued representation by the Machinists is in their best
interest.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. It removes the Re-
spondent Employer’s incentive to delay bargaining in the
hope of further discouraging support for the Machin-
ists. It also ensures that the Machinists will not be pres-
sured to achieve immediate results at the bargaining table
following the Board’s issuance of a cease-and-desist or-
der to forestall an effort by the ILWU to resume its rep-
resentative status, perhaps with the Respondent Employ-
er’s support—or worse, its unlawful assistance.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent Employer’s violations because it would permit
another challenge to the Machinists’ majority status be-
fore the taint of the Respondent Employer’s unlawful
refusal to bargain with the Machinists and its unlawful
recognition of the Respondent Union has dissipated.
Such a result would be particularly unjust in the circum-
stances presented here, where the Respondent Employ-
er’s unfair labor practices likely created a lasting nega-
tive impression of the Machinists among employees in
the bargaining unit, the Respondent Employer has made
clear its preference that its employees be represented by a
different labor organization, and that the union (the
ILWU) has enjoyed the fruits of its unlawful representa-
tion for many years. We find that these circumstances
outweigh the temporary impact the affirmative bargain-
ing order will have on the rights of employees who op-
pose continued representation by the Machinists or by
any other union. In order to provide employees with the
opportunity to fairly assess for themselves the Machin-
ists’ effectiveness as a bargaining representative, the bar-
gaining order requires the Respondent Employer to bar-
gain with the Machinists for a reasonable period of time
should it resume operations.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violations in this
case.
ORDER
A. The Respondent Employer, Ports America Outer
Harbor, LLC, currently known as Outer Harbor Termi-
nal, LLC, Oakland, California, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively, on request, with the Machinists District Lodge
190 and East Bay Automotive Machinists Lodge No.
1546, affiliated with the International Association of Ma-
chinists and Aerospace Workers, AFL–CIO/CLC (Ma-
chinists) as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
bargaining unit (the unit) concerning wages, hours, and
other terms and conditions of employment:
All employees employed at Berths 20 through 26 at the
Port of Oakland, Oakland, California, performing work
described in and covered by “Article 1, Section 2.
Work Jurisdiction” of the April 1, 2002 through March
31, 2005 collective-bargaining agreement between the
International Association of Machinists and Aerospace
Workers, AFL–CIO and Pacific Marine Maintenance
Co. LLC (the Machinists-PMMC Agreement); exclud-
ing all other employees, guards, and supervisors as de-
fined in the Act.
(b) Granting assistance to International Longshore and
Warehouse Union (ILWU or Respondent Union) and
recognizing it as the exclusive collective-bargaining rep-
resentative of the unit employees at a time when the
ILWU did not represent an unassisted and uncoerced
majority of the employees in the unit.
(c) Applying the terms and conditions of employment
of the collective-bargaining agreement between the Re-
spondent Employer and the ILWU (the PMA-ILWU
Agreement), including its union-security provisions, to
the unit employees at a time when the ILWU did not
represent an unassisted and uncoerced majority of the
employees in the unit.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from the
ILWU as the exclusive collective-bargaining representa-
tive of the unit employees, unless and until that labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
the ILWU, including its union-security provisions, to the
unit employees, unless and until that labor organization
has been certified by the National Labor Relations Board
as the exclusive representative of those employees.
(c) Should the Respondent Employer resume opera-
tions, recognize and, on request, bargain with the Ma-
chinists as the exclusive collective-bargaining representa-
tive of the unit employees concerning wages, hours, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement.
(d) Should the Respondent Employer resume opera-
tions, on request of the Machinists, rescind any depar-
tures from terms and conditions of employment that ex-
isted immediately prior to its predecessor’s unlawful
recognition of the ILWU.
(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, after being signed by
the Respondent Employer’s authorized representative, a
copy of the attached notice marked “Appendix A”12 to
the last known addresses of all current and former unit
employees employed by the Respondent Employer at any
time since July 1, 2013.
(f) Promptly furnish the Regional Director with signed
copies of the Respondent Employer’s notice to employ-
ees marked “Appendix A” for posting by the Respondent
Union at its facilities where notices to employees and
members are customarily posted.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent Em-
ployer has taken to comply.
B. The Respondent Union, International Longshore
and Warehouse Union, Oakland, California, its officers,
agents, and representatives, shall
1. Cease and desist from

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(a) Accepting assistance and recognition from Re-
spondent Employer Ports America Outer Harbor, LLC,
currently known as Outer Harbor Terminal, LLC, as the
exclusive collective-bargaining representative of the em-
ployees in the unit described below (the unit) at a time
when the Respondent Union did not represent an unco-
erced majority of the employees in the unit:
All employees employed at Berths 20 through 26 at the
Port of Oakland, Oakland, California, performing work
described in and covered by “Article 1, Section 2.
Work Jurisdiction” of the April 1, 2002 through March
31, 2005 collective-bargaining agreement between the
International Association of Machinists and Aerospace
Workers, AFL–CIO and Pacific Marine Maintenance
Co. LLC (the Machinists-PMMC Agreement); exclud-
ing all other employees, guards, and supervisors as de-
fined in the Act.
(b) Maintaining and enforcing the PMA-ILWU
Agreement, or any extension, renewal, or modification
thereof, including its union-security provisions, so as to
cover the unit employees, unless and until the ILWU has
been certified by the National Labor Relations Board as
the representative of those employees.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Decline recognition as the exclusive collective-
bargaining representative of the unit employees, unless
and until the ILWU has been certified by the National
Labor Relations Board as the exclusive representative of
those employees.
(b) Reimburse all present and former unit employees
for all initiation fees, dues, and other moneys paid by
them or withheld from their wages pursuant to the PMA-
ILWU Agreement, with interest.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at
its headquarters and at its offices and meeting halls in
Oakland, California, copies of the attached notice marked
“Appendix B.”13 Copies of the notice, on forms provided

13 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-
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 7
by the Regional Director for Region 32, after being
signed by the Respondent Union’s authorized representa-
tive, shall be posted by the Respondent Union and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees and
members are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, or other electronic means, if the Respondent
Union customarily communicates with its members by
such means. Reasonable steps shall be taken by the Re-
spondent Union to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Within 14 days after service by the Region, post at
the same places and under the same conditions as in the
preceding subparagraph signed copies of the Respondent
Employer’s notice to employees marked “Appendix A.”
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent Union
has taken to comply.
Dated, Washington, D.C. May 2, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
MAILED 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 mail and
obey this notice.

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.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
collectively, on request, with the Machinists District
Lodge 190 and East Bay Automotive Machinists Lodge
No. 1546, affiliated with the International Association of
Machinists and Aerospace Workers, AFL–CIO/CLC
(Machinists) as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
bargaining unit (the unit) concerning wages, hours, and
other terms and conditions of employment:
All employees employed at Berths 20 through 26 at the
Port of Oakland, Oakland, California, performing work
described in and covered by “Article 1, Section 2.
Work Jurisdiction” of the April 1, 2002 through March
31, 2005 collective-bargaining agreement between the
International Association of Machinists and Aerospace
Workers, AFL–CIO and Pacific Marine Maintenance
Co. LLC (the Machinists-PMMC Agreement); exclud-
ing all other employees, guards, and supervisors as de-
fined in the Act.
WE WILL NOT grant assistance to International Long-
shore and Warehouse Union (the ILWU) or recognize it
as the exclusive collective-bargaining representative of
the unit employees at a time when the ILWU does not
represent an unassisted and uncoerced majority of the
employees in the unit.
WE WILL NOT apply the terms and conditions of em-
ployment of our collective-bargaining agreement with
the ILWU (the PMA-ILWU Agreement), including its
union-security provisions, to the unit employees at a time
when the ILWU does not represent an unassisted and
uncoerced majority of the employees in the unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL withdraw and withhold all recognition from
the ILWU as the exclusive collective-bargaining repre-
sentative of our employees in the unit described above,
unless and until the ILWU has been certified by the Na-
tional Labor Relations Board as the exclusive collective-
bargaining representative of those employees.
WE WILL refrain from applying the terms and condi-
tions of employment of a collective-bargaining agree-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ment with the ILWU, including its union-security provi-
sions, to the unit employees, unless and until that labor
organization has been certified by the National Labor
Relations Board as the exclusive representative of those
employees.
WE WILL, should we resume operations, recognize and,
on the Machinists’ request, bargain with the Machinists
as the exclusive collective-bargaining representative of
our employees in the unit described above concerning
wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
WE WILL, should we resume operations and on the
Machinists’ request, rescind any departures from terms
and conditions of employment that existed immediately
prior to our predecessor’s unlawful recognition of the
ILWU.
PORTS AMERICA OUTER HARBOR, LLC,
CURRENTLY KNOWN AS OUTER HARBOR
TERMINAL, LLC
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-110280 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
APPENDIX B
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 accept assistance or recognition from
Ports America Outer Harbor, LLC, currently known as
Outer Harbor Terminal, LLC (the Employer) as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit (the unit) at a
time when we do not represent an uncoerced majority of
the employees in the unit:
All employees employed at Berths 20 through 26 at the
Port of Oakland, Oakland, California, performing work
described in and covered by “Article 1, Section 2.
Work Jurisdiction” of the April 1, 2002 through March
31, 2005 collective-bargaining agreement between the
International Association of Machinists and Aerospace
Workers, AFL–CIO and Pacific Marine Maintenance
Co. LLC (the Machinists-PMMC Agreement); exclud-
ing all other employees, guards, and supervisors as de-
fined in the Act.
WE WILL NOT maintain or enforce our collective-
bargaining agreement with the Employer (the PMA-
ILWU Agreement), or any extension, renewal, or modi-
fication thereof, including its union-security provisions,
to the unit employees, unless and until we have been
certified by the National Labor Relations Board as the
exclusive representative of those employees.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL decline recognition as the exclusive collec-
tive-bargaining representative of the employees in the
above unit, unless and until we have been certified by the
National Labor Relations Board as the exclusive collec-
tive-bargaining representative of those employees.
WE WILL reimburse all present and former employees
in the unit described above for all initiation fees, dues,
and other moneys paid by them or withheld from their
wages pursuant to the PMA-ILWU Agreement, with in-
terest.
INTERNATIONAL LONGSHORE AND WAREHOUSE
UNION
The Board’s decision can be found at
www.nlrb.gov/case/32-CA-110280 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 9
Amy Berbower, Esq., and David Willhoite, Esq., for the General
Counsel.
Mark Theodore, Esq., and Scott A. Kruse, Esq., for Respondent
Ports America Outer Harbor, LLC, currently known as Out-
er Harbor Terminal, LLC.
Robert Remar, Esq., Lindsay R. Nicholas, Esq., and Eleanor
Morton, Esq.,for Respondent International Longshore and
Warehouse Union.
David A. Rosenfeld, Esq., for International Association of Ma-
chinists and Aerospace Workers, District Lodge 190, East
Bay Automotive Machinists Lodge No. 1546, International
Association of Machinists and Aerospace Workers, AFL–
CIO/CLC.
David S. Durham, Esq., Todd C. Toral, Esq., and Christopher
M. Foster, Esq., for former Respondents MTC Holdings,
Inc. and its affiliates and subsidiaries, including but not lim-
ited to Marine Terminals Corporation.
Todd Amadon, Esq., limited appearance, for Pacific Maritime
Association.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. At is-
sue in these consolidated cases is whether PAOH1 succeeded to
the obligation to bargain with IAM2 when it took over perfor-
mance of marine terminal maintenance and repair (M&R) work
at berths 20 through 26 at the Port of Oakland3 on July 1,
2013.4 The General Counsel alleges that PAOH violated Sec-
tion 8(a)(1), (2), and (5) by recognizing ILWU5 and refusing to
recognize IAM. Also at issue is whether ILWU violated Sec-
tion 8(b)(1)(A) and (2) of the Act by accepting recognition of
the M&R employees.6
A. Employer Operations
The Port leases berths to marine terminal operators. The out-
er harbor of the Port contains berths 20–26. Berths 20–24 were
leased to marine terminal operator A.P. Moller-Maersk
(Maersk) in 1999. Marine terminal operator PAOH was award-
ed the lease of berths 20–24 and took over operation from
Maersk on January 1, 2010. At that time, marine terminal oper-
ator Transbay Container Terminal (TBCT) leased berths 25 and

1 Ports America Outer Harbor, LLC, (PAOH), currently known as
Outer Harbor Terminal, LLC (OHT).
2 International Association of Machinists and Aerospace Workers,
District Lodge 190, East Bay Automotive Machinists Lodge No. 1546,
International Association of Machinists and Aerospace Workers, AFL–
CIO/CLC (IAM).
3 The Port of Oakland (the Port) in Oakland, California.
4 An amended consolidated complaint, issued on March 11, 2016,
included an alternative theory that MTCH Holdings (MTCH) and its
affiliates and subsidiaries, including but not limited to Marine Termi-
nals Corporation (MTC), constituted a single employer with PAOH.
The amended, consolidated complaint also alleged that PAOH, MTCH
and MTC were on notice of PCMC’s potential liability in the PCMC
litigation. These allegations were settled in a partial non-Board settle-
ment between IAM, PAOH/OHT, MTCH, and MTC.
5 International Longshore and Warehouse Union (ILWU).
6 There is no dispute and the record fully supports findings of juris-
diction and labor organization status. This case was heard over the
course of 17 days in Oakland, California.
26. The customers of these marine terminal operators are ocean
carriers or shipping lines who dock at the Port’s berths to load
and unload both containerized and non-containerized cargo.
The marine terminal operators coordinate loading and unload-
ing of the vessels, pickup and drop off of cargo by truck, and
movement, storage, and monitoring of the cargo in the terminal
yard. The M&R work at issue here involves maintaining and
repairing not only the cargo moving equipment but also the
containers and refrigeration equipment.
B. Collective Bargaining and Litigation Background
Due to lengthy ongoing litigation between the parties, the
relevant facts, none of which are disputed, commence in 1999.
In that year, Maersk took over operation of berths 20–24 at the
Port. It awarded the M&R container work to Pacific Marine
Maintenance Company, LLC (PMMC). PMMC adopted the
prior contractor’s single employer IAM collective-bargaining
agreement and signed a successor agreement with IAM effec-
tive from April 1, 2002 until March 31, 2005. This
PMMC/IAM contract applied to all mechanics and other IAM-
represented employees at facilities and operations where
PMMC did business and had commercial control including
berths 20–24 at the Port. (Art. 1, Sec. 2.). The contract extended
to “all accretions to the bargaining unit including, but not lim-
ited to, newly established or acquired shops, and the consolida-
tion of shops in the [covered] geographical area.” (Art. 1, Sec.
4.)
Pacific Crane Maintenance Co., Inc. (PCMC) took over the
M&R work at berths 20–24 at the Port beginning on March 31,
2005. PCMC hired the previous PMMC IAM-represented
M&R employees as ILWU-represented M&R employees.
PCMC applied the multi-employer Pacific Maritime Associa-
tion (PMA)-ILWU coast-wide contract. NLRB litigation en-
sued (the PCMC litigation) and in February 2009 an adminis-
trative law judge found no violation of the Act. Exceptions to
the judge’s decision were filed with the Board.
In January 2010, PAOH took over operation of berths 20–24
from Maersk. PAOH continued the services of PCMC to per-
form M&R work with its ILWU-represented employees. On
October 1, 2010, berths 25 and 26 were added to the PAOH
operations and 20 of the 23 IAM-represented employees who
previously worked for TBCT at berths 25 and 26 were incorpo-
rated into the PCMC ILWU-represented work force. No new
unfair labor practice charges were filed at this time.
On June 24, 2013, a three-member panel of the Board issued
PCMC I7 which reversed the administrative law judge and
found that stipulated single employers PCMC and PMMC, and
their stipulated successor employer Pacific Crane Maintenance
Co. LP (all referred to as PCMC/PMMC) had violated Section
8(a)(5) and (1) of the Act by withdrawing recognition from
IAM on March 31, 2005, and violated Section 8(a)(2) and (1)
by recognizing ILWU and applying the terms of the PMA con-
tract with ILWU to the employees performing the marine ter-
minal M&R work at various locations including berths 20

7 PCMC/Pacific Crane Maintenance Co., 359 NLRB 1206 (2013).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
through 24 at the Port.8 ILWU was found in violation of Sec-
tion 8(b)(1)(A) and (2). One year later, pursuant to NLRB v.
Noel Canning, 134 S.Ct. 2550 (2014), PCMC I was set aside
due to defective appointments of two of the three Board mem-
bers who issued PCMC I.
On July 1, 2013, PAOH took over the M&R work from
PCMC and continued the operations. PAOH did not have any
M&R employees prior to that date. All employees hired by
PAOH to perform the M&R work beginning July 1, 2013, had
previously worked for PCMC. PAOH continued recognition of
ILWU when it took over. The unfair labor practice charges
underlying this current litigation were filed at this time.9
On June 17, 2015, the Board, having considered de novo the
judge’s decision, held,10 inter alia, that PCMC/PMMC had
violated Section 8(a)(1), (2), and (5) and ILWU had violated
Section 8(b)(1)(A) and (2) when PCMC took over operations
on March 31, 2005, and recognized ILWU rather than IAM.
In March 2016, PAOH, now known as OHT, ceased opera-
tions and filed Chapter XI bankruptcy proceedings.
C. Alleged Unfair Labor Practices
From March 31, 2005 until October 1, 2010, PCMC/PMMC
continued to unlawfully recognize ILWU in violation of
PCMC II
The General Counsel avers that from March 31, 2005 until
October 1, 2010, Maersk subcontractor PCMC/PMMC contin-
ued to violate the Act, as found in PCMC II, by failing to rec-
ognize IAM and instead recognizing ILWU for employees
performing M&R work at berths 20–24. The General Counsel
also claims that ILWU continued to violate the Act as found in
PCMC II by accepting recognition throughout this period. Dur-
ing this period, on January 1, 2010, PAOH took over from
Maersk as the contracting employer at the Port. However,
PCMC continued their subcontracting duties as before—now
for PAOH rather than Maersk. There is no dispute regarding
these facts. Thus it is found that from March 31, 2005 until
October 1, 2010, PCMC/PMMC continued to refuse to recog-
nize IAM and, instead, recognized ILWU for employees per-
forming covered M&R work at berths 20–24.

8 In August 2007, with notice of PCMC’s potential unfair labor prac-
tice liability, Pacific Crane Maintenance Co., LP (PCMC LP) pur-
chased the business and assets of PCMC and continued to operate the
business in essentially the same form. The Board held in PCMC II that
PCMC LP was jointly liable for the unfair labor practices of
PCMC/PMMC pursuant to the parties’ stipulation that PCMC LP was a
successor employer pursuant to NLRB v. Burns Security Services, 406
U.S, 272 (1972), and Golden State Bottling v. NLRB, 414 U.S. 168
(1973).
9 IAM filed the charge and amended charge in Case 32–CA–110280
on July 30 and September 19, 2013, respectively. IAM filed the charge
in Case 32–CB–118735 on December 6, 2013. The complaint mistak-
enly lists these dates as in 2014. The complaint is hereby corrected.
10 PCMC/Pacific Crane Maintenance Co., 362 NLRB No. 120
(2015) (PCMC II), reviewed de novo the vacated decision in PCMC I,
and agreed with the rationale set forth in the vacated decision. The
factual and legal holdings in PCMC II are binding as to the current
dispute. The Board’s holding in PCMC II is on review in the District of
Columbia Circuit Court of Appeals.
Unlawful Recognition of ILWU Continued Following Acquisi-
tion of Berths 25 and 26 on October 1, 2010 in an appropriate
expanded bargaining unit of M&R employees
On October 1, 2010, PAOH expanded its operations beyond
berths 20–24 when it acquired the rights to operate adjacent
berths 25 and 26 from TBCT. TBCT ceased doing business at
that time. PAOH demolished the fence that separated berths
20–24 from berths 25 and 26 and operated the expanded area as
a consolidated terminal operation. Twenty of the former 23
M&R IAM-represented employees of TBCT were hired by
PCMC. PAOH purchased all of TBCT’s equipment and took
over TBCT’s clients. PAOH subcontracted performance of
marine terminal M&R work at Berths 25 and 26 to PCMC. The
TBCT M&R employees were incorporated into the unit and
worked alongside the PCMC M&R employees.
The General Counsel alleges that TBCT IAM-represented
M&R employees at Berths 25 and 26 performed unit work and
were thus, as a matter of law, included in the unit or, alterna-
tively, were accreted into the PCMC unit of ILWU-represented
M&R employees at Berths 20–24. The General Counsel alleges
that this work expanded the appropriate collective-bargaining
unit to include “all employees employed at Berths 20 through
26” (the expanded unit).
In agreement with the General Counsel, it is found that the
expanded unit is an appropriate unit for purposes of collective-
bargaining within the meaning of Section 9(b) of the Act. The
bargaining unit found appropriate in PCMC II, at 1212–1213,
was a single employer Oakland and Tacoma11 M&R unit de-
scribed as
All employees employed in Tacoma, Washington and Oak-
land, California, including at Berths 20 through 24 at the Port
of Oakland, Oakland, California, performing work described
in and covered by “Article 1.Section 2. Work Jurisdiction” of
the April 1, 2002 through March 31, 2005 collective-
bargaining agreement between [IAM and PMMC]; excluding
all other employees guards and supervisors as defined in the
Act.
The October 1, 2010 takeover of berths 25 and 26 added 20
additional M&R employees to the operations. These employees
formerly worked for TBCT and were represented by IAM.
There is no dispute that when they were hired by PCMC, these
employees were required to be represented by ILWU. Further,
there is no dispute that the prior TBCT employees had the same
duties and interests as the PCMC M&R employees they joined.
The TBCT employees were integrated functionally. They had
common supervision. Their skills and functions were identical.
They worked in the same areas with constant contact. Their
working conditions and benefits were identical. Thus, the Gen-
eral Counsel contends an appropriate “expanded” unit came
into being through inclusion of former TBCT employees. That
unit is described as follows:
All employees employed in Tacoma, Washington and Oak-
land, California including at Berths 20 through 26 at the Port
of Oakland, Oakland, California, performing work described

11 PAOH did not take over the PCMC work in Tacoma.
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 11
in and covered by “Article 1.Section 2. Work Jurisdiction” of
the April 1, 2002 through March 31, 2005 collective-
bargaining agreement between [IAM and PMMC]; excluding
all other employees guards and supervisors as defined in the
Act.
At the time of litigation in PCMC, the Oakland work encom-
passed only berths 20–24. The General Counsel contends that
the single-employer expanded unit, including berths 20–26, is
appropriate for purposes of collective bargaining because the
former TBCT employees were hired into the historical bargain-
ing unit. The General Counsel relies on cases which hold that
when a collective-bargaining agreement defines the bargaining
unit in terms of the type of work performed, any new or trans-
ferred employees who perform that work are automatically
included in the bargaining unit.12 Thus, under this theory, once
a determination is made that the new or transferred employees
perform unit work and properly belong to the unit, no accretion
analysis is necessary.
In Tarmac America, the Board eschewed application of an
accretion analysis when one forklift operator was hired at a
nearby newly created distribution facility. Rather, the Board
determined that the classification was included in the unit de-
scription and the union’s geographic jurisdiction. Similarly, in
Gourmet Award Foods, when the employer refused to apply the
terms of its collective-bargaining agreement covering drivers
and warehousemen to temporary, jointly-employed ware-
housemen, the Board held, 336 NLRB at 873–874:
It is axiomatic that when an established bargaining unit ex-
pressly encompasses employees in a specific classification,
new employees hired into that classification are included in
the unit. This inclusion is mandated by the Board’s certifica-
tion of the unit or by the parties’ agreement regarding the
unit’s composition. In the present case, the jointly employed
employees are new hires employed by the Respondent and
placed in positions that are within the plain meaning of the
contractual unit description (drivers and warehousemen). The
broad and unequivocal language of the contract compelling
the inclusion of newly hired warehousemen employed solely
by the Respondent equally requires the inclusion of the tem-
porary warehousemen at issue in this proceeding.
The “new or transferred employees” analysis has been uti-
lized not only in refusal to bargain cases but also in unit clarifi-
cation contexts. See, e.g., Premcor, Inc., 353 NLRB 1365, 1366
(2001) (unit clarification appropriate to resolve ambiguity re-
garding unit placement of individual in newly created classifi-
cation); cf., AT Wall Co., 361 NLRB 695 (2014) (finding accre-
tion analysis applicable to acquisition of new operations). The
2002–2005 IAM contract defined “work jurisdiction” as includ-
ing, but not limited to:
Maintenance, Body and Fender work, Painting, Rebuilding,
Dismantling, Assembling, Repairing, Installing, Erecting,
Welding and Burning (or grinding processes connected

12 The General Counsel cites Tarmac America, Inc., 342 NLRB
1049, 1050 fn. 5 (2004); Gourmet Award Foods, 336 NLRB 872, 873
(2001).
therewith), Inspecting, Diagnosing, Cleansing, Preparing or
Conditioning of all units and auxiliaries (including refrigera-
tion and air conditioning (units) relating to . . . trucks, trailers,
cargo containers, generator sets, refrigeration units, dollies,
forklifts, shovels, trench digging and excavating equipment)
and all work historically being performed under this contract.
At the time TBCT ceased business, its M&R employees
worked pursuant to an IAM collective-bargaining agreement
with TBCT effective April 24, 2008 through June 30, 2013.
The work jurisdiction of that agreement covered
[A]ll employees engaged in the maintenance, rebuilding, dis-
mantling, assembling, repairing, installing, cleansing, prepar-
ing and conditioning of . . . containers, skeletal frame chassis,
refrigeration equipment, trailers, truck tanks, trailer tanks or
bodies . . . .”
Utilizing the “new or transferred employees” analysis, it is
easily concluded that the 20 former TBCT M&R employees
who were hired by PCMC performed the bargaining unit work
described in the work jurisdiction description of the 2002–2005
IAM contract.
Moreover, the same conclusion is reached if an accretion
analysis is applied. In N V Energy, Inc., 362 NLRB No. 5, slip
op. at 3–4 (2015), the Board summarized its accretion policies
as follows:
When the Board finds an accretion, it adds employees to an
existing bargaining unit without conducting a representation
election. The purpose of the accretion doctrine is to “preserve
industrial stability by allowing adjustments in bargaining units
to conform to new industrial conditions without requiring an
adversary election every time new jobs are created or other al-
terations in industrial routine are made.” NLRB v. Stevens
Ford, Inc., 773 F.2d 468, 473 (2d Cir. 1985), quoted in Fron-
tier Telephone of Rochester, supra at 1271. However, because
accreted employees are added to the existing unit without an
election or other demonstration of majority support, the accre-
tion doctrine’s goal of promoting industrial stability is in ten-
sion with employees’ Section 7 right to freely choose a bar-
gaining representative. Frontier Telephone of Rochester, su-
pra at 1271. The Board accordingly follows a restrictive poli-
cy in applying the accretion doctrine. See CHS, Inc., 355
NLRB 914, 916 (2010) (quoting Archer Daniels Midland
Co., 333 NLRB 673, 675 (2001)); Super Valu Stores, 283
NLRB 134, 136 (1987). Under the well-established accretion
standard set forth in Safeway Stores, Inc., 256 NLRB 918,
918 (1981), the Board finds “a valid accretion only when the
additional employees have little or no separate group identity
and thus cannot be considered to be a separate appropriate
unit and when the additional employees share an overwhelm-
ing community of interest with the preexisting unit to which
they are accreted.” Id. (footnotes omitted). See also Frontier
Telephone of Rochester, supra at 1271; E. I. Du Pont, supra at
608 (quoting Ready Mix USA, Inc., 340 NLRB 946, 954
(2003)). In determining whether this standard has been met,
the Board considers factors including integration of opera-
tions, centralization of management and administrative con-
trol, geographic proximity, similarity of working conditions,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
skills and functions, common control of labor relations, col-
lective-bargaining history, degree of separate daily supervi-
sion, and degree of employee interchange. Archer Daniels
Midland, supra at 675 (citing Progressive Service Die Co.,
323 NLRB 183 (1997)).9 However, the Board has held that
the “two most important factors—indeed, the two factors that
have been identified as critical to an accretion finding—are
employee interchange and common day-to-day supervision,”
and therefore “the absence of these two factors will ordinarily
defeat a claim of lawful accretion.” Frontier Telephone of
Rochester, supra at 1271 and fn. 7 (internal quotations and
footnote omitted).
In October 2010, TBCT ceased doing business at berths 25
and 26 and PAOH took over the TBCT lease of berths 25 and
26. PAOH purchased TBCT’s equipment through an equipment
purchase agreement. PAOH added berths 25 and 26 to its oper-
ation. These berths were adjacent to PAOH berths 20–24, sepa-
rated by a fence. The fence was torn down and maintenance
and repair work at the combined berth 20–26 area was integrat-
ed. The former TBCT employees no longer had a separate iden-
tity.
At the time of its closure in October 2010, TBCT employed
23 M&R employees represented by IAM. PCMC ultimately
hired 20 of the 23 TBCT M&R employees. The three who were
not hired chose to retire. Some of the M&R employees from
TBCT were placed in the repair shop at berth 24. Chassis repair
work was moved from the shop at berths 22 and 23 to a vacant
mechanic shop at berth 25.
The TBCT M&R employees were IAM-represented but were
hired by PCMC as ILWU-represented employees. Pursuant to
its subcontract, PCMC continued supervision of the M&R work
but now expanded that supervision to berths 25 and 26. On
being transferred to PCMC, the employees continued to per-
form the same duties. However, because the fence between
berths 20–24 and berths 25–26 was torn down, the former
TBCT employees worked side-by-side with PCMC employees
at M&R shops at berths 20–26 and were integrated into the
operations. The nature of their work remained the same. They
used the same equipment or type of equipment. All supervisors,
whether formerly with TBCT or PCMC, reported to centralized
PCMC management. Centralized PAOH administrative control
was exercised. Upon the takeover, PCMC applied the ILWU
contract to the former TBCT IAM-represented M&R employ-
ees.
Thus, the TBCT employees were accreted into the PCMC
work force. The employees worked in the integrated operations
side-by-side with PCMC M&R employees under the same su-
pervision and working conditions. Their skills and functions
were identical to the PCMC M&R employees. Management,
labor relations, and administrative control were centralized.
Thus, whether utilizing the “new or transferred employee”
analysis or the accretion analysis, the TBCT employees were
combined into an appropriate expanded unit.
From October 1, 2010 through June 30, 2013, PCMC contin-
ued to unlawfully recognize ILWU in the expanded unit
of employees.
The General Counsel further alleges that during the period
from October 1, 2010 until June 30, 2013, IAM continued as
the exclusive collective-bargaining representative of the ex-
panded unit. No new unfair labor practice charge was filed
during this period of time. However, contemporaneous with the
TBCT cessation of business, IAM requested bargaining with
PAOH on August 3, 2010. An August 18, 2010 IAM grievance
alleged refusal to bargain with IAM. From October 1, 2010
through June 30, 2013, PCMC continued as the PAOH M&R
subcontractor at berths 20–26.
From July 1, 2013 through March 2016,13 PAOH unlawfully
recognized ILWU in the expanded bargaining unit
of employees.
Effective July 1, 2013, PAOH ceased utilizing PCMC as a
subcontractor and took over performance of the marine termi-
nal M&R work at berths 20 through 26 at the Port. All M&R
employees hired by PAOH were hired from PCMC. These
employees continued to perform substantially the same work
under the same supervision at the same location. The operations
of the M&R department were continued in substantially un-
changed form.
As the Board explained in Nexeo Solutions, LLC, 364 NLRB
No. 44, slip op. at 5 (2016):
The Board’s successorship doctrine is “founded on the prem-
ise that, where a bargaining representative has been selected
by employees, a continuing obligation to deal with that repre-
sentative is not subject to defeasance solely on grounds that
ownership of the employing entity has changed.” Hudson
River Aggregates, Inc., 246 NLRB 192, 197 (1979), enfd. 639
F.2d 865 (2d Cir. 1981), citing [NLRB v. Burns Security Ser-
vices, 406 U.S, 272, 279 (1972)]. Consistent with this view, a
new employer that continues its predecessor’s business in
substantially unchanged form and hires employees of the pre-
decessor as a majority of its work force is a successor with an
obligation to bargain with the union that represented those
employees when they were employed by the predecessor.
Burns, 406 U.S. at 280–281; Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 43 (1987).
In determining whether there is substantial continuity of the
predecessor’s operations, the Court, in Fall River Dyeing, su-
pra, 482 U.S. at 41–43, found the following criteria instructive:
 [W]hether the business of both employers
is essentially the same;
 [W]hether the employees of the new com-
pany are doing the same jobs in the same working
conditions under the same supervisors; and
 [W]hether the new entity has the same pro-
duction process, produces the same products and
has basically the same body of customers.
These factors are viewed from the perspective of the em-
ployees. That is, whether the employees who were hired by the
successor would view their jobs as “essentially unaltered.”

13 On or about March 31, 2016, PAOH, using the name OHT, ceased
doing business, sold its equipment, and is currently in Chapter XI bank-
ruptcy proceedings. All parties agree that PAOH/OHT no longer main-
tains a presence at the Port or anywhere else.
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 13
Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184 (1973);
see also, Tree-Free Fiber Co., LLC, 328 NLRB 389, 390
(1999) (employees did the same work in substantially the same
way and “from their viewpoint,” the operation and their role in
the operation was unchanged from that of the predecessor.)
As mentioned before, there is no dispute that one hundred
percent of the initial PAOH M&R steady14 workforce were
previously employees of PCMC. No one disputes, and the
Board found in PCMC II, that the historical unit is an appropri-
ate bargaining unit. As found above, the expanded bargaining
unit is also an appropriate bargaining unit. Thus, it remains
only to determine whether the PAOH unit of employees was
appropriate, whether the business of PAOH and PCMC were
essentially the same, whether employees of PAOH were doing
the same job in the same working conditions under the same
supervisors, and whether PAOH had the same production pro-
cess, the same services, and basically the same body of custom-
ers. All of these remaining questions are answered in the af-
firmative.
PAOH did not take over PCMC’s M&R work in Tacoma.
The only difference between the expanded unit and the PAOH
unit is that M&R work at Tacoma is not included. Thus, the
PAOH unit included only Oakland berths 20–26. No party ar-
gues that this variance defeats the appropriateness of the unit.
Moreover, as the General Counsel notes, a finding of succes-
sorship is not defeated by the mere fact that only a portion of a
unit is taken over. Bronx Health Plan, 326 NLRB 810, 811–812
(1998), enfd 203 F.3d 51 (D.C. Cir. 1999).
The businesses and production processes of PAOH and
PCMC, as they related to M&R work, were essentially identi-
cal.15 That is, both of them serviced containers, refrigeration
systems, and loading and unloading equipment. The equipment
used to load and unload either refrigerated or non-refrigerated
containers includes cranes, top picks, side picks, RTGs, fork-
lifts, yard goats, bombcarts, and pickup trucks.16 The work of
the unit employees involves maintenance and repair of the con-
tainers as well as maintenance and repair of cranes, generators,
chassis, pickups and loading and unloading equipment. There is
no evidence that the nature of this work has changed from 2005
to the present. There is no dispute that the operation of M&R

14 ILWU argues that the workforce was fluid due to dispatches of
temporary employees. There is no showing that these dispatched em-
ployees were part of the workforce at the time PAOH hired its perma-
nent representative complement of employees on July 1, 2013.
15 ILWU’s argument that the business of PAOH, a marine terminal
operator, and PCMC, an M&R subcontractor, ignores the requirement
that these matters be viewed from the perspective of employees. It is
the M&R work of these two entities that determines whether there is
substantial continuity of the business.
16 Top picks are machines that can lift and move a loaded container
and can stack these containers five containers high. Top picks are also
used for loading and unloading bombcarts or chassis. A bombcart is a
large trailer that is used on the port only and is not taken on the high-
way. It can handle heavy loads for transport from one part of the yard
to another part. A yard goat is a vehicle similar to a semi-tractor but it
is used only in the yard. Chassis and bombcarts can be hitched to a yard
goat for transport around the port. An RTG is a crane capable of lifting
containers six high. It has rubber tires and is not on a rail. A side pick is
a machine that handles empty containers.
work as performed by PCMC and PAOH at these berths was
similar if not identical.
When PAOH took over from PCMC on July 1, 2013, all of
its M&R employees were former PCMC employees in the ex-
panded unit. At a special meeting of the PMA Labor Relations
Committee (LRC) on June 21, 2013, PAOH stated that it
“planned to keep the same complement of men by departments
at Berths 20–26.” Seniority lists provided by PAOH indicated
52 PCMC mechanics would be “hired steady” by PAOH as of
Monday, July 1, 2013, and another 16 PCMC mechanics would
be “hired steady” by PAOH effective Saturday, July 13, 2013.
On July 1, 2013, PAOH began operating the M&R work it-
self. On that date, approximately 48–52 former PCMC mechan-
ics began working for PAOH.17 . On July 13, 2013, 16 more
former PCMC mechanics18 joined PAOH with a seniority date
of July 1, 2013. All of these mechanics continued to perform
the same job duties that they performed for PCMC.19 No other
employees were immediately hired. Thus, all of PAOH’s em-
ployees were former employees of PCMC in the expanded unit.
Further, the employees were doing the same job in the same
working conditions under the same supervisors both before and
after July 2013. They continued to perform M&R container and
equipment repair and are not interchanged with ILWU crane
repair mechanics. Thus, beginning in July 2013, John Luis
Costa became employed by PAOH as a mechanic at the shop
on berth 24 at the Port. Costa began working at berth 24 in
November 2004. At that time his employer was PMMC and he
was represented by IAM. He performed maintenance and repair
on container handling equipment such as top picks, side picks
forklifts, RTGs, yard goats, bombcarts, and pickup trucks. Cos-
ta worked in the same building while employed by PMMC,
PCMC, and PAOH. While he was employed by PCMC, he
continued working in the same building on the same equipment
using the same tools. His coveralls were changed from orange
to white. His assignments expanded to include maintenance and
repair of refrigerated containers (reefers), generators (gensets),
and port side cranes. When working for PCMC, he was repre-
sented by the ILWU. When PAOH took over, his coveralls
were changed from white to orange and new tools were pur-
chased by PAOH. These tools were the same type of tools used
by PMMC and PCMC. PAOH also provided a new fleet of yard
goats with catalytic converters to filter the diesel engine fumes.
The M&R employees performed regular maintenance such as
oil changes, valve adjustments, and similar jobs on all of the
equipment.
Bobby Payne worked at berth 24 for PAOH as a day shift
mechanic. He performed container and chassis repairs and reef-
er container repairs. He started working at the Port in 1990.
From 2005 to 2013, he worked for PCMC. Then PAOH took

17 Comparison of the LRC seniority list of 52 PCMC mechanics who
were eligible for hire on July 1, 2013, with a list prepared of all me-
chanics on or after January 16, 2014, indicates 48 of the 52 on the LRC
list worked for PAOH at the time the list was prepared for the NLRB.
18 Comparison of the LRC list of 16 PCMC mechanics who were to
be hired on July 13, 2013, with the PAOH list prepared for the NLRB
indicates that all of those mechanics were employed in January 2014.
19 Two additional mechanics who had not worked for PCMC were
hired on November 11, 2013.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
over. There was no break in his employment. Payne performed
the same work for PAOH that he performed for PCMC. His job
location was shifted from berth 24 to berths 25 and 26. Joe Ray
was his company manager with PCMC. A different manager,
Chris [last name unknown] was company manager for PAOH
and later was replaced by Dennis [last name unknown]. Payne
described the manager’s job as paperwork. No direct instruc-
tions were given to him by these managers. His leadman, Jose
Robles, has remained the same through PCMC and PAOH.
Payne testified that new tools were brought in by PAOH but
they are the same type tools provided by PCMC.
As of July 1, 2013, Michael Loftesnes became the manager
of the mechanic’s shop at berths 22 and 23, where the power
equipment, chassis, reefer, and container M&R employees
worked. He reported to Gil Currier who was manager of the
M&R department both before for PCMC and after for PAOH.
The former PCMC mechanics were directly supervised by prior
PCMC supervisors Robert Walker and Brad Stolison, both
hired by PAOH. According to Loftesnes, the work of the M&R
employees did not change when they ceased being employed by
PCMC and became employed by PAOH.
From this evidence, it is concluded the businesses of PCMC
and PAOH were basically the same and that PAOH used the
same M&R process as PCMC, provided the same services as
PCMC, and basically had a similar body of customers as
PCMC.20 Former PCMC employees became employees of
PAOH performing the same job in the same working conditions
under the same supervisors. New equipment similar to the
PCMC equipment was utilized.21 One hundred percent of
PAOH’s M&R employees were former PCMC M&R employ-
ees. There was no hiatus in their employment. Thus there can
be little doubt that PAOH is a Burns successor to the PCMC
obligation to bargain with IAM in an expanded, appropriate
unit of employees.
PAOH’s and ILWU’s arguments that PAOH is not a Burns
successor because the single-employer unit has lost its identity
are rejected.
PAOH and ILWU claim PAOH is not a Burns successor be-
cause the bargaining unit that existed in 2005 is no longer an
appropriate unit.22 Specifically, PAOH and ILWU contend that

20 Customers of PCMC generally utilized Maersk containers. Maersk
generator equipment remained after PAOH took over. Customers of
PAOH included Hamburg Sud and Mediterranean. There were small
differences in their containers. All of these customers were container
shipping companies. See, Mondovi Foods Corp., 235 NLRB 1080,
1082 (1978), cited by the General Counsel (changes in market can be
indicative of a different type of business but must be extreme before it
will alter a finding of successor).
21 In Harter Tomato Products Co., 321 NLRB 901, 902 (1996), enfd
133 F.3d 934 (D.C. Cir. 1998), the Board held that ownership of the
same assets is not a prerequisite to a finding of successor.
22 PAOH and ILWU cite Trident Seafoods, Inc. v. NLRB, 101 F.3d
111, 119 (D.C. Cir. 1996). PAOH also cites Dattco, Inc., 338 NLRB
49, at 49 (2002); and P. S. Elliott Services, 300 NLRB 1161 (1990).
ILWU also cites Indianapolis Mack Sales & Serv., 288 NLRB 1123,
1127. None of these cases involve an initial, historical bargaining unit
that was abrogated by unfair labor practices. Rather, they involve pas-
the original historic unit has effectively merged into the PMA-
ILWU multi-employer, coast-wide unit and lost its separate
identity. This argument cannot avail and is rejected as it is built
on unremedied unfair labor practices found in PCMC II. Alt-
hough PCMC was ordered in PCMC II to cease and desist from
recognizing ILWU, it has not done so and PAOH, as a Burns
successor, has continued to recognize ILWU. PAOH may not
rely on its predecessor’s unlawful recognition of ILWU to ren-
der the historic IAM single-employer unit inappropriate.
The Board previously rejected PAOH’s similar argument. In
its order denying PCMC/PMMC’s motion to reopen the record
and for reconsideration of PCMC II, the Board denied the re-
quest to reconsider the appropriateness of its bargaining order
due to passage of 10 years’ time since it unlawfully withdrew
recognition from IAM. The Board found that the affirmative
bargaining order was appropriate despite a significant passage
of time. (Unpublished order, slip op. at 3, March 1, 2016, 32–
CA–021925, et al.). Further, the Board denied PCMC’s request
to reopen the record to show that former IAM-represented em-
ployees had been integrated into the ILWU’s coastwise bar-
gaining unit. Specifically, the Board held that such unlawful,
unilateral changes would not be considered “in determining
whether the former PMMC unit lost its separate identity.” (Slip
op. at 4–5).23
PAOH’s argument that it is not a successor because it had a
good-faith doubt of IAM’s continuing majority status
is rejected.
Additionally, PAOH claims that it is not a Burns successor
because it had a good-faith doubt of IAM’s continuing majority
support. This argument is without merit. PAOH’s argument is
based on the “objective” evidence that its employees were all
members of ILWU. This argument overlooks the unremedied
unfair labor practices upon which ILWU membership is based.
It is rejected for that reason.
PAOH’s argument that IAM was guilty of laches in not filing a
charge in 2009 is rejected.
PAOH asserts that since 2009 IAM was aware of PAOH’s
presence at the Port. PAOH argues that because IAM waited
years (until 2013) to file a charge, IAM is guilty of laches.
PAOH notes prejudice from IAM’s failure to file a charge dur-
ing the period beginning 2009. Thus, PAOH explains that it
made the decision not to renew the PCMC contract without
knowing that IAM believed it had a claim to the M&R work.
Further, PAOH complains that the 10(b) period expired “many
times over.”
It is true that Section 10(b) of the Act provides, in relevant

sage in time and lawful changes in operations. Thus, the rationale of
these cases is inapplicable here.
23 The Board cited Naperville Jeep/Dodge, 357 NLRB 2252, 2253
(2012) (“In determining whether an established bargaining unit retains
its distinct identity, we do not consider the effects of the Respondent’s
unlawful, unilateral changes to the existing unit employees’ terms and
conditions of employment, as giving weight to such changes would
reward the employer for its unlawful conduct.”), enfd. 796 F.3d 31, 40
(D.C. Cir. 2015), cert denied, 136 S.Ct. 1457 (2016); Comar, Inc., 349
NLRB 342, 357–358 (2007) (same); Holly Farms Corp., 311 NLRB
273, 279 (1993) (same), enfd. 48 F.3d 1360 (4th Cir. 1995).
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 15
part, that “no complaint may issue based on any unfair labor
practice occurring more than six months prior to the filing of
the charge.” Thus, in general, an unfair labor practice charge
filed more than 6 months after the alleged unfair labor practice
took place is considered untimely. This policy bars litigation
over “past events after records have been destroyed, witnesses
have gone elsewhere, and recollections . . . have become dim
and confused.”24 Another important policy underlying adher-
ence to the 6-month limitation period is the stabilization of
labor relations.25
The 6-month limitation period prescribed by Section 10(b)
begins to run only when a party has clear and unequivocal no-
tice, either actual or constructive, of the violation of the Act.
University Moving & Storage Co., 350 NLRB 6, 7 (2007). The
burden of showing clear and unequivocal notice is on the party
raising the 10(b) defense. Broadway Volkswagen, 342 NLRB
1244, 1246 (2004). Where a delay in filing is a consequence of
conflicting signals or otherwise ambiguous conduct by that
party, a 10(b) defense will not be sustained. A & L Under-
ground, 302 NLRB 467, 469 (1991).
The operative triggering event in this litigation was transfer
of the M&R work from PCMC to PAOH. That happened on
July 1, 2013 and the unfair labor practice charges underlying
this proceeding were filed within the 6-month limitation period.
The initial charge against PAOH was filed on July 30, 2013.
The charge against ILWU was filed on December 6, 2013.
Implicit in PAOH’s 10(b) and laches arguments is an as-
sumption that the triggering event occurred in 2009. At that
time, PAOH asserts, IAM had knowledge of PAOH’s existence
and its continued use of ILWU mechanics to perform the M&R
work. This assertion is not accurate. It may be the IAM knew
that PCMC was continuing to use ILWU-represented employ-
ees. However, PAOH was not the employer of M&R employ-
ees at that time. PCMC was. Nothing had changed since 2005
when the PCMC litigation arose except that Maersk had been
replaced by PAOH. From the employee viewpoint, PCMC was
the M&R employer from 2005 through 2013. Accordingly, the
10(b) argument is without merit. Further, even had there been a
triggering event in 2009 or 2010, the Board is not a “court of
equity” and does not recognize equitable defenses such as un-
clean hands, laches, and estoppel. Goodyear Tire & Rubber
Co., 271 NLRB 343, 346 fn. 10 (1984) (citing Teamsters Local
294 (Island Dock Lumber), 145 NLRB 484, 492 (1963), enfd.
342 F.2d 18 (2d Cir. 1965): equitable doctrines do not apply
against charging parties because NLRB proceedings are not for
the vindication of private rights but are brought in the public
interest to effectuate statutory policy).
CONCLUSIONS OF LAW
1. By failing and refusing to recognize and bargain with IAM
as the exclusive collective-bargaining representative of PAOH
in an appropriate unit of M&R employees at berths 20 through
26 of the Port, Respondent PAOH/OHT has engaged in unfair
labor practices affecting commerce within the meaning of Sec-

24 H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 40.
25 Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411,
419 (1960).
tion 8(a)(5) and (1) of the Act and Section 2(6) and (7) of the
Act.
2. By recognizing ILWU as the exclusive collective-
bargaining representative of the PAOH unit of M&R employ-
ees at berths 20 through 26 of the Port even though the ILWU
never represented an unassisted and uncoerced majority of the
PCMC/PMMC M&R employees and applying the terms of the
PMA-ILWU Agreement, including its union-security provi-
sions, to its PAOH unit of M&R employees, Respondent
PAOH/OHT has rendered unlawful assistance and support to
ILWU in violation of Section 8(a)(2) and (1) of the Act.
3. By accepting assistance and recognition from PAOH/OHT
as the exclusive collective-bargaining representative of the
PAOH unit of M&R employees at berths 20 through 26 of the
Port and agreeing to application of the PMA-ILWU Agreement
to those employees, including union-security provisions, even
though it never represented an uncoerced majority of the em-
ployees in the unit, Respondent ILWU violated Section
8(b)(1)(A) and (2) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, they shall be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Pursuant to the informal settlement agreement between IAM,
PAOH/OHT, and MTCH/MTC, employees have been made
whole for any loss of earnings they may have suffered due to
PAOH’s refusal to recognize and bargain with IAM and
PAOH’s recognition of ILWU and application of the PMA-
ILWU Agreement. Moreover, the complaint, as amended fol-
lowing approval of the settlement, no longer alleges that
PAOH/OHT is a Golden State successor to PCMC/PMMC.
Thus, the issue of lost earnings is not present for remedy as to
PAOH/OHT.
Nevertheless, pursuant to the partial non-Board settlement
agreement, PAOH/OHT, having ceased doing business, has
agreed to mail a notice to employees. Accordingly,
PAOH/OHT shall mail the attached notice marked “Appendix
A,” at its own expense, to all current employees and former
employees employed by PAOH/OHT at any time since July 1,
2013. Similarly, ILWU must post the attached notice marked
“Appendix B” at its headquarters and offices and meeting halls
in Oakland, California.
Although PAOH/OHT is no longer in business at the Port, in
the event that it returns, it shall, on request, bargain with IAM
regarding wages, hours, benefits, and other terms and condi-
tions of employment, and if an agreement is reached, sign a
written contract. Further, should PAOH/OHT resume opera-
tions at the Port, it must rescind any departures from the terms
and conditions which existed prior to its predecessor’s unlawful
recognition of ILWU.26 An affirmative bargaining order is ap-
propriate to vindicate the Section 7 rights of employees who

26 Noting that a lease for berths 24–26 at the Port was recently
signed, IAM seeks a broader order containing language that any
POAH/OHT successor should be required to recognize IAM. The
standard language of all Board orders includes language applicable to
an employer’s “officers, agents, successors, and assigns.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
were denied representation by IAM and required to join ILWU
as a condition of continued employment.
In a typical situation in which recognition was unlawfully
extended and accepted, the employer and union would be or-
dered jointly and severally to reimburse all present and former
unit employees who joined the union for any initiation fees,
periodic dues, assessments, or any other moneys they may have
paid or that may have been withheld from their pay pursuant to
the PMA-ILWU Agreement, together with compound interest.
See, e.g., ISS Facility Services, Inc., 363 NLRB No. 27, slip op.
at 2 (2015). However, in this case, PAOH/OHT, MTCH/MTC,
and IAM have settled any potential dues liability owed by
PAOH/OHT to employees.
The release set out in the partial non-Board settlement in-
cludes any claims for “back pay, benefits, dues money or other
financial obligation whatsoever as a result to the continuation
of the litigation Case 32–CA–110280.” Because of the release
in the partial non-Board settlement between PAOH/OHT and
IAM, the remedy for dues liability on the part of Respondent
PAOH/OHT is no longer at issue in this proceeding.
Accordingly, Respondent ILWU is ordered to reimburse all
present and former unit employees who joined the ILWU for
any initiation fees, periodic dues, assessments, or any other
moneys they may have paid or that may have been withheld
from their pay pursuant to the PMA-ILWU Agreement since
July 1, 2013, together with interest as prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
IAM argues that ILWU must be held liable to the IAM pen-
sion and health and welfare funds for lost contributions, citing
Teamsters Local 70 (Emery Worldwide), 295 NLRB 1123,
1123–1124 (1989) (union ordered to make employer whole for
any expenditures it incurred in contributing to the union’s
health and welfare plan that it would not have incurred under
the contracted-for plan repudiated by the union); Graphic
Communications Workers Local 280, 235 NLRB 1084, 1085
(1978) (union that unlawfully induced employer to abandon
multi-employer bargaining required to make whole employer
for any financial expenditures made pursuant to unlawful labor
agreement which it would not have been obligated to make
under the multiemployer contract), enfd. 596 F.2d 904 (9th Cir.
1975). These cases are distinguishable as they involved Section
8(b)(3) bad-faith bargaining rather than Section 8(b)(1)(A) and
(2) unlawful recognition. The remedies in these cases flowed
from the specific violations found. Thus, the IAM’s request for
this remedy is denied. IAM further argues that ILWU should be
ordered to make whole employees for lost overtime, vacation
pay, pension, and severance pay. This request is not supported
by any authority and it is also rejected.
As to union dues, IAM requests that ILWU reimburse IAM
for its lost dues from these employees who had signed dues
check-off authorizations.27 Such request would appear to re-
quire double payment of dues by ILWU, first to employees (as

27 IAM further argues that ILWU should make PAOH whole because
PAOH was forced to comply with an unlawful agreement. This request
far exceeds the scope of this hearing. No allegation is present in this
case that PAOH was forced to comply with an unlawful agreement.
ordered above) and again to IAM. This request is rejected as
punitive.
IAM requests that a finding be made regarding whether
PAOH was a “perfectly clear”28 successor to PCMC/PMMC in
order to ensure restoration of the former conditions existing
under the IAM contract and for purposes of future violations by
successors to PAOH and the ILWU in like or similar situations.
This invitation is declined as the issue of “perfectly clear” suc-
cessor is not now nor has it ever been at issue in this proceed-
ing.
Finally, IAM requests a broad order noting that ILWU was
previously found to have unlawfully accepted recognition.29 A
broad order is not limited to “any like or related” misconduct.
Rather, a broad order applies to any type of misconduct. A
broad order also extends the scope of coverage to include em-
ployees of all employers. Thus, a board order goes beyond the
relief that is typically granted. In Hickmott Foods, 242 NLRB
1357 (1979), the Board held
[A broad] order is warranted only when a respondent is
shown to have a proclivity to violate the Act or has engaged
in such egregious or widespread misconduct as to demon-
strate a general disregard for the employees’ fundamental
statutory rights. Accordingly, each case will be analyzed to
determine the nature and extent of the violations committed
by a respondent so that the Board may tailor an appropriate
order. [Footnote omitted.]
Thus, “repeat offenders and egregious violators” are subject
to broad orders. When considering the imposition of a broad
order under Hickmott, “the totality of circumstances” must be
examined to determine whether behavior manifests “an attitude
of opposition to the objectives of the Act.” Five Star Mfg., 348
NLRB 1301 (2006). IAM seeks an order that ILWU cease ac-
ceptance of recognition on a coast-wide, multi-employer basis.
Under the totality of the circumstances, a broad order would
appear to be unwarranted. ILWU does not qualify as a repeat
offender. One of the cited findings was in 1978. The other, in
2008. This does not constitute a clear pattern or practice of
unlawful conduct. See, e.g., Postal Service, 354 NLRB 412
(2009). As there is no showing of proclivity to violate the Act,
the request for a broad order is denied because there is no
showing of proclivity to violate the Act. See, e.g., Electrical
Workers Local 98 (Tri-M Group, LLC), 350 NLRB 1104
(2007); Iron Workers, 307 NLRB 843 (1992). As to egregious-
ness, ILWU accepted recognition of PCMC’s M&R workers in
2005 and continued this recognition after the ALJ decision in
2009 and through the Board’s decision of 2015. The case is still
in litigation before the District of Columbia Court of Appeals.
ILWU repeated this behavior in 2013 when it accepted recogni-

28 See Burns, supra, 406 U.S. at 294–295, recognizing that a succes-
sor may set initial substantive terms of employment except when it is
“perfectly clear” that the successor plans to retain all of the unit em-
ployees. Thus, a “perfectly clear” successor cannot set initial terms
where it states that it will retain all employees unless it is clear that
employment is conditioned on acceptance of new terms. Nexeo Solu-
tions, 364 NLRB No. 44, slip op. at 6–7 (2016).
29 IAM cites not only PCMC but also Retail Clerks Local 588, 227
NLRB 670 (1976), enfd 587 F.2d 984 (9th Cir. 1978).
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 17
tion from PAOH. Although ILWU’s defenses have been reject-
ed before the Board in PCMC II and in this pending litigation,
the issues are complex and ILWU’s actions do not qualify as
“egregious or widespread misconduct” which demonstrates
general disregard for fundamental statutory rights. Moreover, a
narrow order would encompass further behavior of this type.
Thus, a broad order is also denied on the basis of lack of egre-
giousness.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
A. The Respondent PAOH/OHT, Oakland, California, its of-
ficers, agents, successors and assigns shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith with
IAM as the exclusive collective-bargaining representative of its
employees in the following appropriate bargaining unit (the
expanded unit):
All employees employed at Berths 20 through 26 at the Port
of Oakland, Oakland, California performing work described
in and covered by “Article 1.Section 2. Work Jurisdiction” of
the April 1, 2002 through March 31, 2005 collective-
bargaining agreement between [IAM and PMMC]; excluding
all other employees guards and supervisors as defined in the
Act.
(b) Granting assistance to ILWU and recognizing ILWU as
the exclusive collective-bargaining representative of the PAOH
unit of M&R employees at berths 20 through 26 of the Port at a
time when the ILWU never represented an unassisted and un-
coerced majority of the PCMC/PMMC M&R employees and
maintaining and enforcing the terms of the PMA-ILWU
Agreement, including its union-security provisions, to its
PAOH unit of M&R employees.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Withdraw and withhold all recognition from the ILWU as
the exclusive collective-bargaining representative of the unit
employees unless and until the ILWU has been certified as the
exclusive representative of those employees.
(b) Refrain from applying the terms and conditions of em-
ployment of the PMA-ILWU contract, including its union-
security provisions, to the unit employees, unless and until the
ILWU has been certified as the exclusive representatives of
those employees.
(c) Although PAOH/OHT is no longer in business at the
Port, in the event that it returns, it shall recognize and on re-
quest bargain with the IAM as the exclusive collective-
bargaining representative of the employees in the expanded unit

30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
regarding wages, hours, and other terms and conditions of em-
ployment. Further, should PAOH/OHT resume operations at
the Port, it must rescind any departures from the terms and
conditions which existed prior to its predecessor’s unlawful
recognition of ILWU.
(d) Because Respondent has ceased doing business, it is not
ordered to post the attached notice marked “Appendix A.”31
However, because Respondent has gone out of business and/or
closed the facility involved in these proceedings, Respondent
shall duplicate and mail within 14 days, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 1,
2013.32
(e) Furnish the Regional Director with signed copies of its
notice to employees marked as “Appendix A” for posting by
the ILWU at its facilities where notices to employees and
members is customarily posted. Copies of the notice to be fur-
nished to the Regional Director shall be signed and returned to
the Regional Director promptly.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 32 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that PAOH/OHT has taken to comply.
B. The Respondent ILWU, its officers, agents, and repre-
sentatives shall
1. Cease and desist from:
(a) Accepting assistance and recognition from Respondent
PAOH/OHT as the exclusive collective-bargaining representa-
tive of the PAOH expanded unit of M&R employees at berths
20 through 26 of the Port at a time when it did not represent an
uncoerced majority of the employees in the unit and when the
IAM was the exclusive collective-bargaining representative of
the employees in that unit.
(b) Maintaining and enforcing the PMA-ILWU Agreement,
or any extension, renewal, or modification thereof, including its
union-security provisions, so as to cover the employees in the
expanded unit unless and until it has been certified by the
Board as the collective-bargaining representative of those em-
ployees.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Decline recognition as the exclusive collective-
bargaining representative of the unit employees, unless and
until ILWU has been certified as the exclusive representative of
those employees.
(b) Reimburse all present and former expanded unit employ-
ees for all initiation fees, dues, and other moneys paid to them

31 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.”
32 IAM’s request that a copy of the decision be enclosed with mail-
ing of the Notice is rejected. The Board notice sufficiently advises
employees that their Sec. 7 rights will be vindicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
or withheld from their wages pursuant to the PMA-ILWU
Agreement with interest.
(c) Preserve and within 14 days after service by the Region,
post at its headquarters and at its offices and meeting halls in
Oakland, California, copies of the attached notice marked “Ap-
pendix B.”33 Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by the
ILWU’s authorized representative, shall be posted by the
ILWU for 60 consecutive days in conspicuous places, including
all places where notices to employees and members are cus-
tomarily posted. In addition to physical posting of paper notic-
es, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, or other electronic
means. Reasonable steps shall be taken by the ILWU to ensure
that the notices are not altered, defaced, or covered by any other
material.
(d) Within 14 days after service by the Region, post at the
same places and under the same conditions as in the preceding
subparagraph signed copies of the PAOH/OHT notice to em-
ployees marked “Appendix A.”
(e) Within 21 days after service by the Region, file with the
Region Director for Region 32 a sworn certificate of a respon-
sible official on a form provided by the Region attesting to the
steps that the ILWU has taken to comply.
Dated, Washington, D.C. December 1, 2016
APPENDIX A
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law by withdrawing recognition from the
Machinists and recognizing ILWU instead 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 with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
Because we have been found to be the successor employer of
single employer Pacific Crane Maintenance Co., Inc. (PCMC)
and Pacific Marine Maintenance Co., LLC (PMMC) and their
successor Pacific Crane Maintenance Co., LP, WE WILL NOT
refuse to recognize and bargain in good faith with International
Association of Machinists and Aerospace Workers, District
Lodge 190, East Bay Automotive Machinists Lodge No. 1546,

33 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.”
International Association of Machinists and Aerospace Work-
ers, AFL–CIO/CLC (Machinists) as your exclusive collective-
bargaining representative in the following appropriate bargain-
ing unit:
All employees employed at Berths 20 through 26 at the Port
of Oakland, Oakland, California performing work described
in and covered by “Article 1. Section 2. Work Jurisdiction” of
the Machinists-PMMC Agreement; excluding all other em-
ployees, guards, and supervisors as defined in the Act.
WE WILL NOT grant assistance to or recognize International
Longshore and Warehouse Union (ILWU) as the exclusive
collective-bargaining representative of the above unit of em-
ployees because ILWU never represented an unassisted and
uncoerced majority of the employees of the PCMC unit em-
ployees and WE WILL NOT apply the terms of the Pacific Long-
shore Contract Documents to you unless and until ILWU is
certified as your exclusive collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights listed above.
WE WILL withdraw and withhold all recognition from ILWU
as the exclusive collective-bargaining representative of our
employees in the unit above unless and until ILWU has been
certified by the National Labor Relations Board as the exclu-
sive collective-bargaining representative of those employees.
WE WILL recognize and, on request, bargain with the Ma-
chinists as the exclusive collective-bargaining representative of
our employees in the unit described above concerning wages,
hours, and other terms and conditions of employment.
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY
KNOWN AS OUTER HARBOR TERMINAL, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32-CA-110280 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.
APPENDIX B
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 vio-
lated Federal labor law by accepting recognition from
PAOH/OHT and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
PORTS AMERICA OUTER HARBOR, LLC, CURRENTLY KNOWN AS OUTER HARBOR TERMINAL, LLC 19
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT accept assistance and recognition from Ports
America Outer Harbor, LLC, currently known as Outer Harbor
Terminal, LLC as the exclusive collective-bargaining repre-
sentative of the unit of employees below and WE WILL NOT
agree to application of the PMA-ILWU Agreement to those
employees, including the union-security provisions, even
though we did not represent an uncoerced majority of the em-
ployees. The unit is
All employees employed at Berths 20 through 26 at the Port
of Oakland, Oakland, California performing work described
in and covered by “Article 1. Section 2. Work Jurisdiction” of
the Machinists-PMMC Agreement; excluding all other em-
ployees, guards, and supervisors as defined in the Act.
WE WILL NOT maintain or enforce our collective-bargaining
agreement with PAOH/OHT or any modifications, renewals, or
extensions to that agreement, including its union-security pro-
visions, so as to cover the unit employees, unless and until we
have been certified by the National Labor Relations Board as
the collective-bargaining representative of those employees.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights listed above.
WE WILL DECLINE recognition as the exclusive collective-
bargaining represent of the unit described above unless and
until we have been certified by the National Labor Relations
Board as the collective-bargaining representative of those em-
ployees.
WE WILL reimburse all present and former employees in the
unit described above for all initiation fees, dues, and other
moneys paid by them or withheld from their wages pursuant to
the PMA-ILWU Agreement, with interest.
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/32-CA-110280 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.