International Longshore and Warehouse Union and International Longshore and Warehouse Union, Local 4

National Labor Relations Board - Administrative Judge Opinions

Aug 13, 2014

19-CC-092816 (N.L.R.B. Aug. 13, 2014)

JD(SF)–41–14
Vancouver, Washington
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES, SAN FRANCISCO BRANCH OFFICE
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, AFL-CIO, and
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 4, AFL–CIO1
Cases 19–CC–092816
and 19–CC–115273
19–CD–092820
19–CD–115274
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 48, AFL–CIO
John H. Fawley, Atty.,
for the General Counsel.
Lester V. Smith, Atty. (Bullard Law), of Portland, Oregon,
for Charging Party Kinder Morgan Terminals.
Eleanor Morton and Lindsay R. Nicholas, Attys.,
(Leonard Carder LLP) for the Respondents.
Norman D. Malbin, General Counsel, IBEW Local 48, of
Portland, Oregon, for Charging Party IBEW Local 48.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, ADMINISTRATIVE LAW JUDGE. The Regional Director for Region
19 issued the initial consolidated complaint in this proceeding on June 28, 2013, based on the
charges filed by Local 48, International Brotherhood of Electrical Workers (Local 48, IBEW

1 I have amended the unconventional caption utilized in the original complaint and the
amended complaint because they appear to depict Kinder Morgan Terminals and Accurate
Electric of Oregon, Inc. as the charging parties in the CC cases, and Kinder Morgan Terminals
and IBEW Local 48 as the charging parties in the CD cases. In fact, IBEW Local 48 alone filed
all of the unfair labor practice charges in this proceeding. For due process purposes, I permitted
Kinder Morgan Terminals, the employer involved, to fully participate at the hearing on a party-
in-interest basis and to file a posthearing brief even though it has not been designated as such.
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Local 48, or Charging Party) on November 8, 2012, and amended multiple times thereafter, in
Cases 19–CC–092816 and 19–CD–092820. The Regional Director issued an amended
consolidated complaint (complaint) after further consolidating the original cases with Cases 19–
CC–115273 and 19–CD–115274 filed by Local 48 on October 22, 2013.
I conducted a 7-day hearing on the complaint allegations at Portland, Oregon, between
October 29 and December 12, 2013. During the course of the hearing I took official notice of,
and have considered, the record made in a closely related 10(k) proceeding in Case 36–CD–236
conducted in April and May 2011. The complaint alleges that Respondents engaged in unfair
labor practices within the meaning of Section 8(b)(4)(ii)(B) and 8(b)(ii)(4)(D).
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondents, Local 48 and KMBT,
I conclude that the General Counsel failed to prove essential complaint allegations that establish
the Respondents violated Section 8(b)(4)(B) and (D).
Findings of Fact
I. Jurisdiction
Kinder Morgan Bulk Terminals (KMBT), a Delaware corporation with an office and
place of business at the Vancouver Bulk Terminal (VBT), is engaged in the business of operating
a bulk cargo handling facility under a management agreement with the Port of Vancouver
(POV). During the 12-month period prior to the issuance of the complaint, KMBT purchased
goods and supplies used in its VBT operations valued in excess of $50,000 directly from entities
located outside the State of Washington. Based on these findings, I conclude that KMBT has
been, at all material times, an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Based on their admissions, I further conclude that each of the
Respondents is a labor organization within the meaning of Section 2(5).
II. Alleged Unfair Labor Practices
A. An Overview of the Relevant Operation
KMBT operates nearly 150 bulk terminal facilities throughout the United States and
Canada. In the Pacific Northwest KMBT operates marine bulk terminals at the Columbia River
deep-draft ports in Portland, Oregon, Longview, Washington, and Vancouver, Washington. This
proceeding involves KMBT’s operation at Vancouver.
The POV opened the VBT at berth 7 of that port in 1982. From that time until 1985 it
operated the VBT in partnership with the Anaconda Copper Company. From 1985 until 1991
and again from 1993 to 1995 the POV operated the VBT itself. Metropolitan Stevedoring
operated the VBT from 1991 to 1993. The Hall Buck Company operated the VBT from 1995
until KMBT acquired Hall Buck in July 1998. KMBT has operated the VBT from that time to
the present.
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Since 2001 KMBT operates the VBT pursuant to a management agreement with the POV
that provides the operator with no ownership or leasehold interest in the terminal. The
agreement broadly requires KMBT to adhere to applicable laws and governmental regulations.
The operation at the VBT essentially consists of unloading copper concentrate or
bentonite clay from railcars that arrive at the terminal and later loading those materials on ocean-
going vessels for export. The terminal is equipped with conveyor machinery that transports
these materials from the railcars to warehouses for storage until they are reloaded on a ship for
export with the use of similar conveyor equipment. When the railcars arrive at the VBT, they are
advanced to an unloading position by workers who operate programmable logic controllers
(PLCs). At that point the bulk material is hand scooped into hoppers on a conveyor system that
moves the material into a warehouse where it is dumped along the length of the building. When
a ship arrives for loading, workers in the warehouse scoop the material on to the conveyor
system that takes the material to the point where it is unloaded on the vessel.
KMBT utilizes local longshore workers represented by the ILWU to perform its principal
operation of loading and unloading bulk materials.2 It acquires these workers through a local
referral hall jointly operated by ILWU Local 4 (Respondent Local 4 or Local 4) and the Pacific
Maritime Association (PMA), a multiemployer bargaining agency. The terms and conditions of
employment for those workers are governed by the Pacific Coast Longshore Contract Document
(PCLCD) between the PMA and the ILWU.3 This lengthy and highly complex agreement
applies to a coastwise, multiemployer unit of workers represented by the ILWU’s Longshore
Division and employed by 70 or more members of the PMA that operate on or utilize the West
Coast docks in California, Oregon, and Washington. KMBT is bound to that multiemployer
agreement by reason of its membership in the PMA. The most recent PCLCD was effective for a
term beginning on July 1, 2008, and continuing through June 30, 2014.
In this case, the Respondents claim that the 2008 PCLCD defined the unit work to
include, among other tasks, all maintenance and repair (M&R) work on all cargo-handling
equipment utilized by the PMA employers, other than that specifically excepted by two letters of
understanding signed by the presidents of the PMA and the ILWU, and included as a part of the
PCLCD. This includes, Respondents assert, not only the mechanical M&R work, but also the
electrical/electronic M&R work (for brevity, electrical M&R work) associated with the
programmable logic controller systems (PLC), the conveyor equipment, ship loading spouts,
railcar advancement equipment, and the air compressors at least to the degree they are used as a
part of the cargo-handling equipment.
KMBT has always used ILWU-represented labor to perform the mechanical M&R work
at the VBT. The Respondents further claim that from 1982 until 1996, the employees they
represented performed the electrical M&R work at the VBT. This claim is supported to a degree
by the credible testimony of Lee Anderson, a retired ILWU mechanic who formerly worked at

2 Bulk material is any type of cargo not in a container or other type of package.
3 The PCLCD is one portion of the Pacific Coast Longshore & Clerks Agreement that applies
to the longshore workers. Another similar document, the PCCCD applies to the clerk
classifications utilized by PMA employers.
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the VBT. Anderson confirmed that he performed electrical M&R work at the VBT until left in
1997 to work elsewhere.
However, other credible evidence establishes that as early as 1996, the VBT operators
began using local electrical contractors to perform at least some of their electrical M&R work.
Ken Sweo, the general foreman, a member of the board of directors of Accurate Electric of
Oregon, Inc. (Accurate), and a trained electrician, recalled that he first began performing
electrical M&R work at the VBT in 1996 while employed by Christensen Electric, a local
electrical contractor. Christensen, he said, lost the work to Hughes Electric in 2002. Accurate
acquired the work in 2004 and has been performing it since. The Accurate workers utilized to
perform the disputed work are represented by Local 48, International Brotherhood of Electrical
Workers (IBEW) located in Portland, the Charging Party in these cases.4
Vancouver aside, there is credible evidence that unit employees who work for other PMA
employers at other West Coast ports regularly perform electrical M&R work on the cargo-
handling equipment. Thus, Richard Marzano, the PMA’s director of contract administration and
arbitration, testified as follows:
Q: Okay. Are there individuals in the ILWU Longshore bargaining unit who do electrical
work?
(Interruption to hear and rule on objections to the question)
THE WITNESS: Yes. And to explain, longshore work–longshore work under Section 1 is
the movement of cargo. But under Section 1.7, it is mechanic work. And longshore
mechanics encompasses a great deal of different work. They maintain chasses. They
change tires. The, you know, you could have, you know, a guy who is just sitting there
with a hammer all day. But at the–if the other side of the spectrum, it would be crane
maintenance. It would be reefer maintenance. And in my experience, the guys, the
longshore workers who are performing crane maintenance and reefer maintenance work,
they are a very skilled workforce. They have–not to say that they are, but I've worked
with people directly that were electrical engineers, that these guys and these crane
maintenance workers had incredible electrical skills. So to say that, are there longshore
workers that do electrical work? The answer is yes.
Q: Okay. Are there ILWU longshore workers that work with fiber optics in the course of
their work also?
A: Fiber optics? Cables and–yes, yeah, there are.
Q: And are there ILWU represented longshore workers–well, let me go back to
something you said. You mentioned reefers?
A: Yes.
Q: That's a refrigerated container?

4 During the arbitration proceedings described more fully below, the PMA disputed the
ILWU’s claims that the electrical M&R work at the VBT had ever been performed by ILWU-
represented workers but those claims appear to rely primarily on hearsay assertions.
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A: Yes, I'm sorry. It's a refrigerated container. It's a chilled container that's electrically
controlled.
In addition, Respondents adduced multiple instances over a recent two year period of PMA
employers throughout California, and in Tacoma and Seattle, Washington, soliciting applications
through ILWU local unions for workers to fill unit positions that require a variety electrical and
electronic skills, certificates, and state electrical licenses. (R. Exhs. 33, 34, 35, and 36) This
evidence far exceeds a mere anecdotal showing; many of the solicitations seek to fill numerous
openings, a few up to 40.
Regardless, since taking over operation of the VBT, KMBT has split the M&R work that
has been performed on the cargo-handling equipment there. It utilizes its own workers
represented by the ILWU to perform the mechanical M&R work at the facility. However, it has
always used a vendor to perform its electrical M&R work on an as needed basis. Over the years,
those vendors have been local electrical contractors whose workers are represented by the
ILWU. As noted, Accurate is currently the approved vendor utilized for the electrical M&R
work on the cargo-handling equipment at the VBT. On average, an Accurate electrician spends
1 or 2 days a week performing electrical M&R work at the VBT. KMBT has no obligation or
continuing agreement or contractual obligation to engage Accurate exclusively, nor has it ever
had a collective-bargaining agreement with IBEW Local 48 that applies to any of the workers it
directly employs at the VBT.
KMBT officials asserted that Leal Sundet, a coast committeeman for the ILWU
Longshore Division and a member of the ILWU’s coastwise bargaining team, warned them after
the PMA and the ILWU completed negotiations of the 2008 PCLCD that the ILWU planned to
come after the electrical M&R work at the VBT. On July 2, 2010, Local 4’s president wrote to
KMBT requesting, in effect, that KMBT’s comply with the 2008 Bulk Terminal Past Practice
LOU by hiring unit employees qualified to perform electrical M&R work instead of outsourcing
that work. KMBT did not respond. In the next 2 months, KMBT’s longshore workers at the
VBT grieved over six instances where nonunit workers (Local 48 electricians employed by
Accurate) performed electrical M&R work at the VBT.
B. The KMBT-ILWU Contract Dispute at the VBT
1. The 2008 PCLCD Provisions concerning M&R Work
The relevant terms of the 2008 PCLCD concerning M&R work reinforce the fact that it is
an agreement covering a coastwise, multiemployer bargaining unit at west coast ports. Section
1.71 of the 2008 PCLCD declares that the M&R work on all stevedore cargo handling equipment
(cargo-handling equipment) to be unit work with these words:5 “This Contract Document shall
apply to the maintenance and repair of all stevedore cargo handling equipment. (See sec. 1.81.)”
The referenced section 1.81 states:

5 Section 1.7 is inapplicable here as it addresses M&R work at container terminals.
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ILWU jurisdiction of maintenance and repair work shall not apply at those specific
marine terminals that are listed as being “red-circled” in the July 1, 2008 Letter of
Understanding on this subject. Red-circled facilities, as they are modified/upgraded (e.g.,
introduction of new technologies), or expanded, while maintaining the fundamental
identity of the pre-existing facility, shall not result in the displacement of the recognized
workforce and shall not be disturbed, unless as determined by the terminal owner or
tenant.
The letter of understanding (Red-Circle LOU) referenced in the above text sets forth the
“Clarifications and Exceptions to ILWU Maintenance and Repair Jurisdiction.” It declares that
the parties “discussed the assignment of maintenance and repair work to the ILWU coastwise
bargaining unit to offset the introduction of new technologies and robotics that will necessarily
displace/erode traditional longshore work and workers.” It then goes on to set forth a lengthy
description of what “scope of ILWU work” includes. Among the listing of included ILWU work
is the “maintenance and repair . . . of all present and forthcoming technological equipment
related to the operation of stevedore handling equipment and its electronics in all West Coast
ports except for those, and only those, specific marine terminal facilities listed as red-circled
below.” It then goes on to “red-circle” 30 excepted facilities, all of which are located at ports in
Oakland, Long Beach, Los Angeles, Tacoma, and Seattle. No facility at the POV is included in
this list of red-circled facilities. (R. Exh. 28, pp. 218–-223, emphasis added)
As the above description suggests, the Red-Circle LOU provides site-specific exceptions
to the ILWU’s jurisdiction over the M&R work at west coast ports. Its more specific term merit
the inference that it involves situations where PMA employers have a direct collective
bargaining agreement with other labor organizations that involve the performance of at least
some M&R work. Thus, the Red-Circle LOU further provides that a terminal operator who
owns or leases a red-circled facility and who has a “direct collective bargaining relationship”
with another union as of July 1, 2008, may transfer, in effect, its red-circle status and its non-
ILWU work force to a different, existing location in the same port provided in doing so it
maintains “a continuity of operations, personnel, and equipment.”
PCLCD Section 1.72 sets forth the parties mutual understanding “that the introduction of
new technologies, including fully mechanized and robotic-operated marine terminals, necessarily
displaces traditional longshore work.” This section goes on to describe the referenced
“traditional longshore work” as operating the cargo-handling equipment, maintenance and repair,
and the cleaning of the cargo handling equipment. It then states:
The parties recognize robotics and other technologies will replace a certain number of
equipment operators and other traditional longshore classifications. It is agreed that the
jurisdiction of the ILWU shall apply to the maintenance and repair of all present and
forthcoming stevedore cargo handling equipment in accordance with Sections 1.7 and
1.71 and shall constitute the functional equivalent of such traditional ILWU work. It is
further recognized that since such robotics and other technologies replace a certain
number of ILWU equipment operators and other traditional ILWU classifications, the
pre-commission installation per each Employer’s past practice . . . post-commission
installation, reinstallation, removal, maintenance and repair, and associated cleaning of
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such new technologies perform and constitute the functional equivalent of such
traditional ILWU jobs. [Emphasis added.]
Section 1.73 describes the “scope of work.” The language used here to describe the
scope of M&R work is patterned after the Red-Circle LOU. Thus, it states, “the scope of work
shall include . . . maintenance and repair, and associated cleaning of all present and forthcoming
technological equipment related to the operation of stevedore cargo handling equipment . . . and
its electronics that are controlled or interchanged by PMA companies, in all West Coast ports.”
(Emphasis added.)
The 2008 PCLCD contains another letter of understanding that became relevant to this
dispute as the grievances advanced through the contractual grievance-arbitration procedure. That
letter of understanding is titled, “M&R Work ‘Contract Stevedores’ and Bulk Facilities (the Bulk
Terminal Past Practice LOU). The Bulk Terminal Past Practice LOU states:
During the course of the 2008 PCL&CA negotiations, the Parties discussed and
agreed that Section 1.7, 1.71, 1.72, 1.73, and 1.731 shall cover work performed by PMA
member companies functioning as “contract stevedores” and PMA member companies
operating bulk facilities. “Contract stevedore” is a company performing stevedore work
with its own or leased equipment at non-CY (container yard) terminals where it is not the
owner or the lessee.
It was agreed that such companies are entitled to waiver of Section 1.7 and associated
subsections in keeping with an Employer’s past practice in a port where such work was
performed by non-longshore employees of said employer or by said employer’s
subcontractor pursuant to a past practice that was followed as of July 1, 1978.
With respect to bulk facilities, the exception shall apply only to existing facilities.
[R. Exh. 28, pp. 225–226.]
Read together, as they must be in order to discern their essential essence, the foregoing
provisions of the 2008 PCLCD constitute a negotiated arrangement between the PMA and the
ILWU applicable to the entire shipping industry operating at West Coast ports designed to
address the problem of worker displacements that they both see coming with the introduction of
robotics and other technological advances designed to turn the loading and unloading of cargo
into an unmanned operation. According to Marzano, the PMA and the ILWU also included
provisions in the 2008 PCLCD designed to improve the mobility of registered longshoremen
because the parties anticipated an uptick in maintenance work on the West Coast docks with the
introduction of robotics. These provisions sought to make it easier for registered longshoremen
to relocate to another geographical area where her/his skills were in demand.
2. The dispute over electrical M&R work at the VBT
As noted, between July and September 2010, longshore workers filed six lost-work
grievances against KMBT. The ILWU and Local 4 vigorously prosecuted the grievances under
the under the grievance-arbitration provisions of the PCLCD.
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Under the PCLCD procedures, unresolved grievances are first considered by the Joint
Port Labor Relations Committee (JPLRC). (As with nearly all joint committees provided for by
the PCLCD and the parties’ practices, the PMA and the ILWU each has, in effect, a single vote
regardless of the number of representatives who may appear and participate in the meeting.) The
JPLRC at Vancouver considered the six grievances at its November 30, 2010, meeting but failed
to reach an agreement concerning them.
From the outset Local 4 claimed that the 2008 PCLCD provided that all M&R work,
whether mechanical or electrical, constituted the longshore unit work based on the “grand
bargain” made during those negotiations. Local 4 described that bargain in the following
written outline of its position presented at the JPLRC:
The intent of the 2008 (PCLCD) negotiations was to recognize that the Employers were
free to introduce technology, including robotic technology, which would “... necessarily
replace traditional longshore work...” as recognized to be the physical handling of cargo
or the driving of machines that handle cargo. In exchange, all maintenance and repair
work of such technologies would be assigned to the ILWU.
Section 1.72 stipulates that ILWU maintenance and repair work applies to not just new
technology such as robotics, but also to “present” cargo handling equipment. This M&R
work (as described in the six grievances) would then constitute the functional equivalent
of our ‘traditional’ work.
In this case the Employers are misinterpreting the usage of the phrase “traditional ILWU
work” as contained in Section 1.72, PCLCD, and in doing so are disingenuous and
reneging on what was negotiated in 2008 bargaining.
The modifications made to Section 1.7, its subsections and the corresponding LOU was
to ensure that the ILWU does all maintenance and repair work regardless of the
methodology of the work.
[10(k) Er. Exh. 5. Emphasis in the original.]
Word obviously spread quickly to Local 48 about the nature of the six grievances and the
significance of the ILWU position concerning them. Equally obvious is the alarm with which
Local 48 perceived the impact the grievances could have on the workers it represents should the
ILWU succeed. Thus, on December 9, 2010, Local 48’s general counsel wrote to KMBT’s
counsel expressing his disappointment at learning that KMBT “is considering assigning
electrical work to Longshoremen.” He asserted that “Electrical construction work at the Port of
Vancouver had been performed by IBEW Local 48 electricians since the opening of their facility
and we intend to ensure that it will continue to be performed by IBEW Local 48 electricians until
the day it shuts down. We are not going to sit idly by and allow you to hand over our work to
another union.” The letter goes on to charge that ILWU workers were not qualified to perform
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electrical work at the VBT and asserted that at least two grievances involved new installations,
work the ILWU specifically disclaimed during this proceeding.6 (Er. Exh. 6, 10(k).)
The grievances were again considered at a JPLRC meetings on February 3 and March 14,
2011. At the latter meeting, the parties (PMA on behalf of, and with, KMBT and ILWU Local 4)
failed to reach agreement concerning the grievances but did agree to submit them directly to the
area arbitrator for resolution, thereby bypassing Joint Area Labor Relation Committee (JALRC).
The parties to the PCLCD employ “permanent” arbitrators at both the area and coastwise
level of their grievance-arbitration procedure to resolve the disputes that arise under the PCLCD.
The area arbitrator for the northwest area involved here is Jan R. Holmes. The coast arbitrator is
John Kagel, a nationally known arbitrator of high repute entirely aside from his work as a
permanent arbitrator for the PMA and ILWU.
Area Arbitrator Holmes conducted an arbitration hearing concerning the six grievances
on April 12, 2011, and rendered her decision on May 31. The determinative issue during the
hearing concerned the interpretation of the past practice exception(s) provided for in the Bulk
Terminal Past Practice LOU. In her decision, Area Arbitrator Holmes concluded that the Bulk
Terminal Past Practice LOU established separate past practice exceptions to the requirements of
PCLCD section 1.71, et seq. concerning maintenance and repair work. She reasoned that the
Bulk Terminal Past Practice LOU provided contract stevedores with an exception to the
requirement that all M&R work be assigned to unit employees as provided in PCLCD section
1.71 et seq. but only if they had a past practice of doing so that predated July 1, 1978. However,
she concluded that the absence of a similar date contained in the reference to bulk terminal
operators (third paragraph of the Bulk Terminal Past Practice LOU) reflected the parties’ intent
to approve of past practices that were in effect as of the date they signed the Bulk Terminal Past
Practice LOU, to wit, July 28, 2008. Because KMBT regularly subcontracted its electrical M&R
work well before July 28, 2008, she concluded it enjoyed an exception from the requirements of
PCLCD section 1.71 et seq., so that the six grievances “were not payable.”
In accord with the PCLCD’s grievance-arbitration provisions, the ILWU appealed
Holmes’ decision to the Coast Labor Relations Committee (CLRC), a bilateral committee of
high-level PMA and ILWU representatives with each side effectively having one vote.7 The
CLRC failed to reach an accord with respect to affirming or reversing Holmes’ decision. Instead
the CLRC submitted Holmes’ interpretation of the Bulk Terminal Past Practice LOU to the coast
arbitrator to be affirmed or reversed.
Coast Arbitrator Kagel held a hearing on the Bulk Terminal Past Practice LOU on
December 5, 2011, and rendered his decision on December 28. He vacated Area Arbitrator
Holmes’ finding that the Bulk Terminal Past Practice LOU provided for two separate past
practice exceptions, one applicable to the bulk terminal operators such as KMBT, and the other

6 To be sure, the record here also provides no support for the conclusion the ILWU sought by
its grievances any “electrical construction work” at the POV.
7 The votes cast on behalf of either the PMA or the ILWU at CLRC meetings are effectively
preapproved by the presidents of those two organizations.
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applicable to contract stevedores. Coast Arbitrator Kagel construed the 2008 Bulk Terminal Past
Practice LOU as requiring any PMA employer operating at a non-redcircled facility, such as
Vancouver, to demonstrate a past practice predating July 1, 1978, in order to qualify for the
exception it provided. His ruling states in pertinent part:
The “exception” referred to in the third paragraph (of the Bulk Terminal Past Practice
LOU) is in the singular, and applies to the 1978 past practice exception referenced in the
second paragraph, and as it had appeared in the PCLCD prior to 2008. And, this view is
clinched by the fact, as claimed by the Union, that a Kinder Morgan bulk facility in the
Port of Portland claimed to have such a 1978 exception by virtue of being a successor to
a facility which had such an exception, and contentions that the 1978 exception there also
applied to an additional Kinder Morgan facility in the same port because of the 1978
exception applying to the successor facility. If a specific bulk facility had a 1978
exception, it could keep it by virtue of the third paragraph of the LOU in 2008. But there
is nothing in the LOU, read as a whole, to show that what its third paragraph did was to
create a successor past practice exception for all bulk facilities that did not have the 1978
exception to go into effect on July 28, 2008.
[R. Exh. 32, p. 4.] Accordingly, he referred the case back to the area arbitrator to resolve any
remaining issues.
Area Arbitrator Holmes issued her second decision in the case involving the six
grievances on February 21, 2012. Prior to that time, Holmes had been advised of the Board’s
10(k) award, discussed below, that issued on December 31, 2011. Regardless, Area Arbitrator
Holmes, relying on the record made in her original hearing as well as the record made before
Arbitrator Kagel, concluded in her second decision that the work described in each of the
grievances constituted unit M&R work and further concluded that KMBT did not qualify for an
exception that would permit it to outsource such work. But she referred the question of how to
implement the decision she had reached to the CLRC.
No appeal was taken from the area arbitrator’s second decision. Effectuation of the
Arbitrator Holmes February 21 award was taken up at the May 10, 2012, CLRC meeting. The
CLRC unanimously instructed KMBT to “to take the necessary steps to assign the work in dispute
in CRAA-0002-2012 to ILWU Longshore Division employees.” The minutes of that meeting state
as follows:
The Employers inquired as to whether the Union felt it would be lawful to act on this ruling given
the NLRB ruling in the 10(k) hearing.
The Union stated that the NLRB 10(k) decision in this ease is irrelevant in that it does not bind
Kinder Morgan, as a matter of law or otherwise, from assigning the work to the ILWU. Any
10(k) decision is only relevant at the time of issuance and to the extent that the Employer seeks to
use it. Here, Kinder Morgan is free at any time to not use a subcontractor.
The Area Arbitrator referred the issue of implementation to the CLRC and, as such, it is the
Committee’s duty to require implementation of the Award. The Union stated that Kinder Morgan
and PMA have a further duty to defend the assignment of work in any legal proceeding (see
Section 1.76, PCLCD).
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After discussion, the Committee agreed that Kinder Morgan is required to take the necessary
steps to assign the work in dispute in CRAA-0002-2012 to ILWU Longshore Division
employees.
Neil Maunu, KMBT’s operations manager for the Columbia River area, claims that his
company never received notice of the foregoing action by the CLRC until August 8, almost 3
months after the fact. On August 20, a PMA official in the area notified Maunu that Local 4
wanted a JPLRC meeting to discuss the CLRC’s May 10 directive. He also said that Local 4
asked KMBT prepare for a qualifications list it could use to determine if any workers anyone
within the local were qualified to perform the electrical M&R work at the VBT. The meeting
was held on September 11. KMBT provided Local 4 with the qualifications list as requested.
Meanwhile, KMBT continued to call on Accurate for its electrical M&R needs at the
VBT. On October 18, Accurate dispatched a journeyman electrician, Jeff Andrews, to the VBT
at the request of KMBT to repair a malfunctioning conveyor.8 After Andrews arrived at
KMBT’s terminal office at about 2:45 p.m. and received instructions to report to KMBT
Supervisor Delashmitt at an electrical room located near the south end of the terminal.
When Andrews arrived at the electrical room, a crowd of about 20 individuals, several of
whom he recognized as longshoremen that he had seen at the VBT during his past visits there,
refused to permit him to enter the electrical room to perform the work he had been sent there to
do. In fact, at one point early on one in the group, a longshoreman named Justin France, put his
hands on Andrews to prevent him from entering the electrical room. Local 4 Vice President
Jared Smith, told Andrews that they would not let him enter the electrical room to perform the
repairs because it was the longshoremen’s work. That refrain was repeated by several in the
crowd who continued to block Andrews from entering the electrical room even when Supervisor
Delashmitt and KMBT Terminal Manager Noa Lidstone sought to personally escort him through
the group. When the stalemate continued, Larry Sefton, a Local 4 labor relations committeeman,
was summoned to the scene and he insisted that Andrews leave. Finally, the parties agreed to an
instant arbitration of their dispute that lasted until about 7 p.m. when Andrews was finally
permitted to complete the repair he had been summoned to perform.
A similar incident occurred on early on October 21 when Accurate’s general foreman,
Ken Sweo, arrived at the VBT to perform more electrical maintenance work that KMBT
arranged for on October 18. This time a group of about 15 longshoremen interfered with his
efforts to get material from his van and later prevented him from entering the pit building to
replace an electrical switch. In the course of these confrontations, the group charged that he had
come to the VBT to perform longshore work and insisted that he leave. The group that
prevented Sweo from performing his work that day included Local 4 labor relations
committeemen Lynch and Sefton. Eventually, Sweo had to leave without getting any of the
work done that he had been hired to do.
KMBT officials present at the scene on both occasions pointed out to the Local 4 officials
that the Board had awarded the work Andrews and Sweo were there to perform to the IBEW but

8 Andrews said he had performed work at the VBT on numerous occasions since 1996.
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the union officers insisted that the work to be done was unit work. On October 22, 2013, Local
48 filed the charges in Cases 19–CC–115273 and 19–CD–115275 alleging that the ILWU and
Local 4 violated Section 8(b)(4)(ii)(B) and (D).
On November 15 Local 4 requested through the PMA that KMBT interview at their
earliest convenience the applicants who had signified their interest on a signup sheet posted at
the union hall along with the electrical M&R work job description that KMBT provided earlier.
Some of the ILWU members claimed to be licensed electricians, a few even claimed to be
licensed master electricians. However, KMBT notified the PMA on November 21 that it was
suspending any further action looking toward the hiring ILWU electricians to perform M&R
work at the VBT in view of the October 22 unfair labor practice charges and reports that another
POV terminal operator had been cited by the State of Washington for performing electrical M&R
work at the POV in violation of the Washington electrical code.9
C. The 10(k) Proceeding
On March 18, 2011, 4 days after the JPLRC’s initial referral of the six grievances to the
area arbitrator for decision, Local 48’s general counsel wrote to KMBT’s counsel threatening to
picket KMBT if it assigned “work traditionally done by Local 48 electricians” to workers
represented by the ILWU. (Er Exh. 8 10(k).) Five days later on March 23, KMBT filed the
unfair labor practice charge against Local 48 in Case 36–CD–236. That charge generated a 3-
day 10(k) hearing in April and May 2011. The ILWU and Local 4 intervened and participated in
that proceeding. On December 31, 2011, the Board issued its decision and determination
awarding the electrical work at the VBT to workers that Local 48 represents. Electrical
Workers, Local 48, 357 NLRB No. 182 (2011).10
In that decision and determination, the Board found that the work in dispute was that
described in the six grievances filed by the ILWU “as well as all other electrical work not
specifically covered by the grievances.” It found that KMBT operated the VBT pursuant to a
management agreement requiring it to comply “with all applicable rules and regulations of the
Port and applicable federal, state, and local laws, ordinances and regulations.” Citing the
“uncontradicted” testimony of a Washington State inspector that “state regulations require that
Kinder Morgan subcontract any electrical work to a licensed electrical contractor with employees
possessing appropriate electrical licenses,” the Board further found that “Kinder Morgan has

9 These citations were the direct outgrowth of the 10(k) hearing.
10 Citing Noel Canning v NLRB, 705 F.3d 490 (D.C. Cir. 2013), Respondents argue that this
10(k) award is ultra vires because the Board panel involved included a member invalidly
appointed to office. The panel issuing the decision included former Board Member Craig
Becker. In NLRB. v. New Vista Nursing & Rehabilitation, 719 F.3d 203, 218 (3d Cir. 2013), the
court held that Member Becker had been invalidly appointed during a 17-day intrasession Senate
recess. The Supreme Court’s recent decision in Noel Canning v. NLRB, 573 U.S. ___ (2014),
concluded, contrary to the New Vista court, that the President’s constitutional recess appointment
authority extended to intrasession recesses of the Senate. Accordingly, I find Respondents’
argument that the Board panel issuing the 10(k) decision lacked authority apparently due to
Member Becker’s participation is without merit.
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hired electrical subcontractors on an as-needed basis to perform necessary installation and
electrical repairs on the cargo loading equipment,” all of whom have been signatories to
collective-bargaining agreements with the IBEW.
That same Washington State inspector testified in this proceeding. Here, he conceded
that KMBT could lawfully perform the disputed electrical work if it obtained the POV’s specific
authorization to do so, or if it obtained its own electrical contractor’s license. In Washington,
anyone (electrician or not) may become an electrical contractor by filing an application with the
required fee and providing the requisite surety bond or an acceptable substitute. A person who
obtains an electrical contractor’s license may then lawfully perform any electrical work in the
state by designating a licensed master electrician (a journeyman with a specified amount of
experience in the trade), or a person with a Washington electrical administrator’s certificate to
approve the work actually performed by the contractor’s licensed electricians. Washington will
grant an administrator’s certificate to any individual who passes a subject-matter examination
and pays the required fee. But unlike a licensed master electrician, an administrator may not
actually perform any electrical work. As a licensed electrical contractor in Washington, KMBT
would be permitted it to do its own electrical M&R work on the cargo handling equipment
without obtaining the POV’s approval. Nothing in this record warrants finding that the law or
regulations in the State of Washington absolutely requires that KMBT outsource electrical work.
More importantly, the Board rejected the ILWU’s motion to quash the 10(k) notice of
hearing on the ground that the dispute amounted to a contractual, work-preservation dispute, and
that the IBEW’s March 18 threat was an artificial, calculated contrivance between the IBEW and
KMBT designed to create the appearance of a jurisdictional dispute so that the IBEW could
obtain the work assignment preferred by KMBT. The Board concluded that the ILWU’s work-
preservation claim lacked merit because of the ILWU worker had never performed the work in
dispute at least during KMBT tenure as the operator. The Board also found that the ILWU had
failed to prove its claim that KMBT and Local 48 concocted the whole affair to create the
appearance of a jurisdictional dispute. The Board then concluded that four of the five factors it
considered in this work assignment dispute favored the IBEW and awarded the electrical M&R
work on the cargo handling equipment at the VBT to workers represented by Local 48.
The initial factor considered in the Board’s 10(k) decision involved “Certifications and
collective-bargaining agreements.” The Board found that factor failed to favor either party.
After noting no relevant certifications applied here, the Board went on to find that KMBT had no
agreement with the IBEW. But as to KMBT’s agreement with the ILWU, the 10(k) award states:
As a member of the PMA, Kinder Morgan is bound to a collective-bargaining
agreement with ILWU. Section 1.71 of both the current and prior agreements sets forth
the scope of work and ILWU’s jurisdiction as “the maintenance and repair of all
stevedore cargo handling equipment.” The current agreement, however, contains new
provisions addressing the work in light of the introduction of new technologies. Section
1.72, one of the new provisions, provides that ILWU’s jurisdiction applies to the M&R of
all present and forthcoming stevedore cargo handling equipment, which shall constitute
the functional equivalent of such traditional ILWU work. Section 1.73 defines the scope
of ILWU work to include “the pre-commission installation per each Employer’s past
practice . . . , post-commission installation, reinstallation, removal, maintenance and
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repair, and associated cleaning of all present and forth-coming technological equipment
related to the operation of stevedore handling equipment . . . and its electronics that are
controlled or interchanged by PMA companies.” Several “letters of understanding”
providing exceptions to ILWU’s contractual jurisdiction of M&R work were added to the
agreement during the course of the 2008 negotiations, but none applies to the work at
issue here.
As just shown, the PMA bargaining agreement’s jurisdictional work description is
very general, including among other things “the maintenance and repair of all stevedore
cargo handling equipment.” But there is no explicit mention of electrical work or any
similar work arguably described in ILWU’s contractual grievances. ILWU argues that
more recent additions to the collective-bargaining agreement address the subcontracted
electrical work. But both the testimony and contract language demonstrate that the
collective-bargaining agreement changes were directed at new work to be based on the
introduction of new technologies. There is no evidence that electrical work associated
with cargo handling equipment conducted at Kinder Morgan’s facility is any different
from when Kinder Morgan took over the terminal in 1995, nor is there evidence of new
equipment with more sophisticated technology installed in those 15-plus years. The
applicable collective-bargaining agreement provisions have remained the same, as has the
work and who performs the work.
[357 NLRB No. 182, slip op. at 3–4.] As discussed in more detail below, the evidence in this
proceeding casts considerable doubt on the sustainability of the findings of fact, analysis, and
conclusions in the 10(k) proceeding.
D. The Parties’ Contentions
The General Counsel alleges and argues that the ILWU and Local 4 violated Section
8(b)(4)(ii)(B) and (D) by (1) failing to withdraw the six grievances seeking the electrical M&R
work at the VBT; (2) coercing KMBT to assign that work to the employees they represent; and
(3) preventing electricians represented by Local 48 from performing electrical work for KMBT.
The Charging Party and KMBT submitted briefs in support of the General Counsel’s
contentions. The theory underlying the General Counsel’s complaint rests on his conclusion that
Accurate is the primary employer in this dispute while KMBT is a secondary employer allegedly
“whipsawed” by the ILWU’s grievances seeking the electrical work that Accurate currently
performs at the VBT.11 The General Counsel rejects the ILWU’s claim that the grievances and
the other activity alleged as unlawful had a work preservation objective, arguing that cannot be
possible because the ILWU has never performed the electrical M&R work at the VBT for well
over a decade. In addition, the General Counsel argues that the fundamental premise of the
ILWU’s defense that is grounded on the subcontracting provision in the PCLCD is not a “lawful
no-subcontracting provision . . . that (KMBT) could have breached.”

11 Complaint paragraph 9 avers that the Respondents’ labor dispute is with Accurate and not
with KMBT.
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The Respondents argue that the General Counsel failed to prove by a preponderance of
the evidence that they violated Section 8(b)(4)(B) and (D). They argue that the evidence shows
that the primary labor dispute here is between the ILWU and KMBT, not Accurate as the
General Counsel claims. That is so, the Respondents assert, because PMA, KMBT’s bargaining
agent agreed in the 2008 PCLCD that all M&R work, whether electrical or mechanical,
constituted traditional longshore work. It argues further that KMBT exercises the right of
control over this particular M&R work. For these reasons, Respondents argue, the sole object of
their conduct was to enforce their collective-bargaining agreement with KMBT. That agreement,
the Respondent’s insist, provided them with a “fairly claimable” right to the disputed work
because it involves M&R work on cargo-handling equipment declared to be traditional longshore
work. In an alternative argument limited to paragraphs 8(a)-(c) alleging that Respondents were
threatened, coerced and restrained in connection with the drafting of an electrician’s job
description, its posting at the Local 4 union hall, and Local 4’s requests that interested applicants
be interviewed lacks merit because the credible evidence establishes that KMBT initiated and
promoted this action of its own volition, independent even of the PMA.
E. Analysis and Conclusions
1. The statutory provisions and relevant case law
As noted, this complaint alleges that Respondents violated Section 8(b)(4)(ii)(B) and (D)
of the Act. Based on the complaint’s premise that the primary employer is Accurate and that
KMBT is a neutral, the General Counsel alleges that Respondents violated these provisions of
the Act by the following conduct that occurred after the Board issued its award in the 10(k) case:
1. The alleged direction given by ILWU officials at the May 2012 CLR meeting that
KMBT assign the electrical M&R work at the VBT that had been awarded to workers
represented by Local 48 in the Board’s 10(k) decision and determination of
December 31, 2011, to employees represented by Respondents.
2. The alleged direction and subsequent follow up by Local 4’s officers in the period
from September 11, 2012 (presumably during the JPLRC meeting) that KMBT create a
“general journeyman electrician job description” for posting at Local 4’s to facilitate the
hiring of ILWU-represented workers to perform the electrical M&R work at the VBT.
3. The physical blocking of the Accurate electricians at the VBT on October 18 and 21,
2012 who had been summoned to perform electrical M&R work for KMBT.
In relevant part Section 8(b)(4) declares that it is an unfair labor practice for a labor
organization to: . . . “(ii) to threaten, coerce, or restrain any person engaged in commerce or in an
industry affecting commerce,” where the object is:
. . .
(B) forcing or requiring any person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, processor, or manufacturer, or to
cease doing business with any other person, or forcing or requiring any other employer to
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recognize or bargain with a labor organization as the representative of his employees
unless such labor organization has been certified as the representative of such employees
under the provisions of Section 9: Provided, That nothing contained in this clause (B)
shall be construed to make unlawful, where not otherwise unlawful, any primary strike or
primary picketing;
. . .
(D) forcing or requiring any employer to assign work to employees in a particular union,
trade, craft or class rather than to employees in another union, trade, craft, or class, unless
the employer is failing to conform to a Board order or certification determining the
representative of the employees performing the disputed work.
If the Board finds reasonable cause to believe that a violation of Section 8(b)(4)(D) has
occurred, Section 10(k) requires the Board “to hear and determine the dispute out of which such
unfair labor practice shall have arisen,” unless the parties to the dispute provide “satisfactory
evidence” within 10 days after the Board’s notice of the filing of the 8(b)(4)(D) charge that “they
have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute.” If the
parties comply with the Board’s determination or the outcome of their voluntary procedure, the
charge is dismissed. See Sec. 101.33 – 101.36 of the NLRB Statements of Procedure.
But if the charged party (here the ILWU and its Local 4) elects not to abide by the
Board’s 10(k) award, then the General Counsel is empowered to issue a complaint alleging a
violation of Section 8(b)(4)(D), which he must prove by a preponderance of the evidence in a
proceeding conducted under the Administrative Procedures Act. See generally Longshoremen
ILWU Local 6 (Golden Grain), 289 NLRB 1 (1988).
In general, the provisions of Section 8(b)(4) reflect “the dual congressional objectives of
preserving the right of labor organizations to bring pressure to bear on offending employers in
primary labor disputes and of shielding unoffending employers and others from pressures in
controversies not their own.” NLRB v. Denver Building. & Construction Trades Council, 341
U.S. 675, 692 (1951); National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 625–627 (1967)
Here, the parties obviously disagree about the identity of the primary (or “offending”)
employer(s) and the identity of the neutral or a secondary “unoffending” employer(s). In
contrast to the position of the General Counsel, KMBT, and Local 48, the Respondents assert
that the primary employer here is KMBT as it is the employer that with the right to control the
category of employees, longshoremen or electricians, who perform the electrical M&R work.
In United Pipe Fitters Local 438 (George Koch Sons, Inc.), 201 NLRB 59, 63 (1973),
enfd. 490 F.2d 323 (4th Cir. 1973), the Board addressed its use of the right of control test
generally used in determining whether a charged union’s conduct amounts to unlawful secondary
activity under Section 8(b)(4) or lawful primary activity under the proviso to that section. There
the Board stated:
. . . [O]f late, the Board has characterized its approach simply in terms of a right-
of-control test. The test as stated would seem to imply that the Board looked solely at the
pressured employer's “contract right to control” the work at issue at the time of the
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pressure to determine whether that pressure was primary or secondary. In fact, this is not
now the Board's approach nor was it ever.
Rather, the Board has always proceeded with an analysis of (1) whether under all
the surrounding circumstances the union's objective was work preservation and then (2)
whether the pressures exerted were directed at the right person, i.e., at the primary in the
dispute. For the reasons set forth, supra, we think this approach fully conforms with
National Woodwork and is in fact compelled by Section 8(b)(4)(B). In following this
approach, however, our analysis has not nor will it ever be a mechanical one, and, in
addition to determining, under all the surrounding circumstances, whether the union's
objective is truly work preservation, we have studied and shall continue to study not only
the situation the pressured employer finds himself in but also how he came to be in that
situation. And if we find that the employer is not truly an “unoffending employer” who
merits the Act's protections, we shall find no violation in a union's pressures such as
occurred here, even though a purely mechanical or surface look at the case might present
an appearance of a parallel situation.
Even well before Pipe Fitters 438, the Board held that the right of control test does not
apply to situations where an employer intentionally exposes himself to union pressure by
engaging in conduct that seeks to avoid his contractual commitments under a union agreement.
Such an employer cannot be deemed “an unoffending employer” entitled to the protection of
Section 8(b)(4)(B). Painters District Council 20 (Uni-Coat Spray Painting), 185 NLRB 930
(1970), cited with approval in Pipe Fitter 438.
In addition, since Pipe Fitters 438, the Board has emphasized that its’ right-of-control
test presumes that an employer is a neutral entitled to the protection afforded under Section
8(b)(4) if “when faced with a coercive demand from its union, (it) is powerless to accede to such
a demand except by bringing some form of pressure on an independent third party.” Electrical
Workers Local 501 (Atlas Co.), 216 NLRB 417 (1975). If the “pressured employer cannot
himself accede to the union’s wishes, the [union’s] pressure is secondary undertaken for its effect
elsewhere.” Id.
Respondents’ assert that its conduct seeking to enforce the provisions of the 2008
PCLCD at the VBT is lawful, work preservation activity. Work preservation agreements, and
their enforcement, have been held lawful by the Supreme Court under the provisions of 8(b)(4)
and 8(e) of the Act even where they have a severe impact on others. NLRB v. ILA, 447 U.S. 490
(1980) (ILA I); NLRB v. ILA, 473 U.S. 61 (1985) (ILA II). The existence of a lawful work
preservation objective depends on whether, under all the surrounding circumstances, the union’s
objective is the preservation of unit work or whether its objective is tactically calculated to
satisfy union objectives elsewhere. As the Supreme Court has explained, the “touchstone is
whether the agreement or its maintenance is addressed to the labor relations of the contracting
employer vis-à-vis his own employees.” National Woodwork, 386 U.S. at 644–645.
In complaint paragraph 5, the General Counsel alleges that under Washington State
regulations KMBT “must subcontract any electrical work to a licensed electrical contractor.”
The preponderance of the evidence fails to support that sweeping allegation. Instead, the
evidence shows that KMBT has at least two alternatives. First, it was shown that KMBT could,
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if it chose to do so, which it has not, seek authorization from the POV to perform the electrical
maintenance work on the cargo-handling equipment in use at the VBT using its own employees.
Second, it could obtain its own state electrical contractors’ license, a relatively simple process.
I find the claims that the Washington electrical code and regulations virtually prohibit KMBT
from performing its own electrical maintenance and repair work wildly exaggerated. No
evidence shows that the PMA employers seeking to hire large numbers of workers qualified to
perform electrical work at the docks in Seattle and Tacoma are not in compliance with state law.
In my judgment, Respondents have a fairly claimable right under the 2008 PCLCD to the
work described in the six grievances that they pursued all the way through to a final decision
under the contractual grievance-arbitration procedure. The analysis of this issue begins with
determining the appropriate unit to measure the traditional work performed the ILWU-
represented workers. Where, as here, the ILWU represents a coastwise multiemployer unit, it is
the work of the employees in that unit which determines the fairly claimable question, not an
isolated unit of any individual PMA employer. Sheet Metal Workers Local 162, 207 NLRB 741,
749-750 (1973); WA Boyle, United Mine Workers, 179 NLRB 479, 483-484 (1969) Hence, it is
the work performed by the ILWU mechanics in the multiemployer, coastwise unit that counts
here, not the work performed only at the VBT. The preponderance of the evidence shows that
ILWU-represented longshore mechanics perform both electrical and mechanical M&R work at
numerous West Coast ports.
The 2008 PCLCD represents an integrated agreement by the parties to define
“traditional” longshore work as applied to the coastwise bargaining unit. All provisions of
section 1.7 and 1.81, as well as the two relevant LOUs must be read in conjunction in order to
properly construe the parties’ agreement in a reasonable, fair, and practical manner that accords
with their intention at the time they entered into it. I find that this agreement structurally defines
all M&R work, whether electrical or mechanical, as work to be performed by employees who
belong to a coastwise unit represented by the Respondents unless a PMA employer qualifies for
an exception based on either the Red-Circle LOU, or the Bulk Terminal Past Practice LOU.
KMBT as a member of the PMA is bound to this collective-bargaining agreement
wherever it operates on the West Coast. For that reason, and as I have previously found that it is
not seriously encumbered by Washington law, I reject any assertion that KMBT “is powerless to
accede to” the demand that the electrical M&R work involved be assigned to the ILWU unit
employees. In fact, it has now been contractually determined that it is obliged to do just that.
Because all M&R work on cargo-handling equipment performed by PMA members at the West
Coast ports is subject to the terms of the PCLCD, the past practices at the VBT only have
relevance under the Bulk Terminal Past Practice LOU if they predate July 1978. Because the
VBT did not come into existence until 1982, the past practices there are simply not relevant
under the PCLCD. As Arbitrator Kagel noted, even KMBT recognizes this fact because it relies
on and is accorded the benefit of the Bulk Terminal Past Practice LOU in its use of nonunit
workers to perform its electrical M&R work at the bulk terminal it operates for the Port of
Portland, directly across the Columbia River from the VBT.
For these reasons, I find the preponderance of the evidence establishes that the
Respondents’ efforts to compel KMBT to assign the electrical M&R work on the cargo-handling
equipment at the VBT in accord with the requirements of the 2008 PCLCD has been primary
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activity from the outset. The PMA, KMBT’s bargaining agent, agreed to define M&R work on
cargo-handling equipment as traditional longshore work and to reserve that work for unit
employees. In exchange, the ILWU agreed that it would not oppose the introduction of robotics
and other technological advancements on the West Coast docks.
The evidence also establishes that the right of control over the assignment of the
electrical M&R work at the VBT is vested in KMBT, not Accurate as alleged by the General
Counsel. That control is exercised each time an agent of KMBT picks up the phone and calls
Accurate instead the PMA/ILWU dispatch hall when in need of electrical M&R work on its
cargo-handling equipment. Any meaningful and realistic right of control analysis must focus on
that moment and the process that gave rise to it.
This record is totally devoid of evidence suggesting that Respondents seek to influence
the decisionmaking by Accurate’s managers when it comes to the workers Accurate assigns to
perform the disputed work but they most decidedly care about KMBT’s decision to call Accurate
instead of the dispatch hall in the first place. Respondents have an agreement covering the M&R
work with KMBT, not Accurate. I find merit to Respondents charge in their brief that “(b)y no
stretch of the imagination is (KMBT) ‘wholly unconcerned’ with or a ‘neutral’ in the instant
dispute.” (R. Br., p. 36). This case involves a primary contract dispute the ILWU has with
KMBT, nothing more and nothing less. KMBT is not obliged in any manner to use Accurate’s
employees to perform the disputed work but it does have a contractual obligation with
Respondents that provide a substantial basis for the ILWU’s claims here.
In this setting, the March 18, 2011, letter from Local 48’s general counsel threatening to
picket at the VBT if KMBT assigns the electrical M&R work at the VBT to the ILWU unit
employees strikes me as an oddity. Local 48’s claim to the electrical M&R work at the VBT is
grounded on its agreement with Accurate, not KMBT, because it has no agreement with KMBT.
If it did, KMBT would likely have acquired a red-circle exception under the PCLCD. Arguably,
Local 48’s March 18 threat that gave rise to the 10(k) proceeding violates Section 8(b)(4) as its
object seeks to impose on KMBT a de facto union signatory agreement prohibited by Section
8(e). Furthermore, based on KMBT’s historical practice at the POV, I strongly suspect that if
certain select employees of Accurate who have regularly performed work at the VBT since 1998
obtained employment elsewhere, even Accurate’s presence at the VBT would quickly fade into
the past, as happened to its predecessors.
Of course, my conclusion that the Respondents’ activities are in furtherance of a primary
work-preservation object is at odds with the conclusion reached by the Board in the 10(k)
proceeding. However, the findings and conclusions in the 10(k) proceeding are not res judicata
in a subsequent 8(b)(4)(D) proceeding. NLRB v. Plasterers Local 79, 404 U.S. 116, 122 fn. 10
(1971). But even so, the far more expanded record before me strongly supports my conclusion that ,
some findings and conclusions in the 10(k) decision merit reconsideration.
For example, the conclusions reached there that the two relevant letters of understanding
included in the 2008 PCLCD have no application to this situation fails to appreciate their
purpose. The Red-Circle LOU and the Bulk Terminal Past Practice LOU reflect the primary
exceptions to the general assignment of all present and future M&R work found in Section 1.71
et seq. to the unit employees. It strikes me as completely illogical to say they have no
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application simply because KMBT’s operation at the VBT does not qualify for an exception
under either of them. On the contrary, that fact is extremely meaningful when it comes to
assessing the Respondents’ work preservation defense.
In addition, the repeated mention that “present” M&R work constitutes the “traditional”
longshore work of the unit employees appears to direct contradict the conclusion reached in the
10(k) decision that the parties’ agreement about M&R work in section 1.71 et seq. is limited to
that work resulting from the future introduction of robotics and other new technologies. Even
the conclusion that the agreement makes no reference to electrical M&R work appears not to
have considered the use of the word “electronics,” once in section 1.73 and again in the Red-
Circle LOU.12 But the most notable support in this expanded record for finding that the
construction of the 2008 PCLCD made in the 10(k) proceeding fails to reflect a fair and
reasonable construction of the parties’ intent may be found in the fact that the PMA, KMBT’s
representative, never, as near as I can tell from my review of the arbitration proceedings,
advanced the claim that the M&R work reserved to the unit employees was limited to future
electrical work resulting from the introduction of robotics and other new technologies, a
potentially case-busting argument in that forum.
Respondents’ rest their work preservation claims here on the principles articulated by the
Supreme Court in the ILA cases. NLRB v. Longshoreman ILA, 447 U.S. 490 (1980) (ILA 1);
NLRB v. Longshoremen ILA, 473 U.S. 61 (1985) (ILA 2). In those cases, the Supreme Court
twice rejected the Board’s highly restrictive view that the work preservation doctrine is confined
only to work traditionally performed by unit employees especially in situations where the
traditional way of doing the work involved is undergoing cataclysmic changes resulting from
technological innovations. In the ILA cases the Supreme Court refined and expanded the work
preservation doctrine to something well beyond those simple fact patterns found in the National
Woodwork case, and its progeny, to include a recognition that changes transformative of an
entire industry require that the law accord a reasonable accommodation to the collectively-
bargained efforts of the parties to minimize the adverse impacts on the workers involved.
In the ILA cases, the parties, after lengthy, crippling strikes that debilitated the east coast
shipping industry, ultimately agreed to a provision entitling workers represented by the ILA to
the jobs involved in “stuffing” and “stripping” containers anywhere within a 50-mile radius of

12 Even if it is assumed that the relevant portions of the PCLCD made no reference to
electrical M&R work, the application of the common maxim of contract interpretation, proper in
this circumstance, that the “greater includes the lesser” merits the conclusion that both electrical
and mechanical M&R work are included. See, e.g., Principles of Contractual Interpretation, 60
Louisiana Law Review No. 3 at 783–786 (2000); Principles of Contract Interpretation:
Interpreting Collective Bargaining Agreements, 16 Cap. U. L. Rev. 31, 44–45 (1986-1987). But
the fact that the provisions dealing with M&R work twice refers to “electronic” work as unit
work warrants the conclusion that the parties understood that electrical M&R work related to the
operation of cargo handling equipment constituted unit work.
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the New York piers.13 The provision sought to compensate the unit workers for the massive loss
of work bound to result from the transition to containerization from the old bulk-loading
operation on the New York docks, the typical locus of longshore work. The ILA claimed that
the agreement and its efforts to enforce it constituted lawful, work-preservation activity on behalf
of the employees it represented when faced with a massive loss of jobs they faced.
ILA 1 concerned Board decisions rejecting the ILA’s work-preservation defense that the
collectively-bargained container rules requiring the use of unit employees to stuff and strip
containers within a 50-mile radius of the pier unless performed by employees of the cargo owner.
Such work, the Board found, had historically been performed by the employees of area freight
consolidators so the rules and actions by the ILA constituted unlawful work-acquisition activity.
The rationale for this conclusion rested on the theory that the container rules negotiated by the
New York Shipping Association (NYSA) and the ILA required that the shipping companies
cease providing containers to the consolidators who refused to use longshore labor in place of
their own labor to stuff and strip the containers. The Board rejected the ILA’s claim that this
agreement, and its efforts to enforce it, constituted lawful work preservation activity finding that
actions by the ILA seeking off-pier stuffing and stripping work constituted an unlawful work
acquisition device. Hence, the Board found that the NYSA/ILA container rules violated Section
8(e), and the ILA’s efforts to enforce them violated Section 8(b)(4)(B).
Upon consideration of the Board’s decision, the Supreme Court first observed that the
application of the work preservation agreements cannot be “limited solely to employees who
respond to change with intransigence,” a pejorative characterization it applied to the situations
such as those found in the National Woodwork line of cases. The Court then went on to severely
criticize the Board’s application of the work-preservation doctrine:
The Board's approach reflects a fundamental misconception of the work
preservation doctrine as it has been applied in our previous cases. Identification of the
work at issue in a complex case of technological displacement requires a careful analysis
of the traditional work patterns that the parties are allegedly seeking to preserve, and of
how the agreement seeks to accomplish that result under the changed circumstances
created by the technological advance. The analysis must take into account “all the
surrounding circumstances,” National Woodwork, 386 U.S. at 644, 87 S.Ct. at 1268,
including the nature of the work both before and after the innovation. In a relatively
simple case, such as National Woodwork or Pipefitters, the inquiry may be of rather
limited scope. Other, more complex cases will require a broader view, taking into account
the transformation of several interrelated industries or types of work; this is such a case.
Whatever its scope, however, the inquiry must be carefully focused: to determine whether
an agreement seeks no more than to preserve the work of bargaining unit members, the
Board must focus on the work of the bargaining unit employees, not on the work of other
employees who may be doing the same or similar work, and examine the relationship

13 The shipping companies own or lease virtually all of the containers used in the industry.
They provide them to customers with marine shipping needs. These customers either load (stuff)
or unload (strip) the containers themselves or arrange for such services with other entities.
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between the work as it existed before the innovation and as the agreement proposes to
preserve it.
The Board, by contrast, focused on the work done by the employees of the
charging parties, the truckers and consolidators, after the introduction of containerized
shipping. It found that work was similar to work those employees had done before the
innovation, and concluded that ILA was trying to acquire the traditional work of those
employees. That conclusion ignores the fact that the impact of containerization occurred
at the interface between ocean and motor transport; not surprisingly, the work of stuffing
and stripping containers is similar to work previously done by both longshoremen and
truckers. The Board's approach would have been entirely appropriate in considering an
agreement to preserve the work of truckers' employees, but it misses the point when
applied to judge this contract between the ILA and the shipowner employers.
By focusing on the work as performed, after the innovation took place, by the
employees who allegedly have displaced the longshoremen's work, the Board foreclosed-
by definition-any possibility that the longshoremen could negotiate an agreement to
permit them to continue to play any part in the loading or unloading of containerized
cargo. For the very reason the Rules were negotiated was that longshoremen do not
perform that work away from the pier, and never have. Thus it is apparent that under the
Board's approach, in the words of the Court of Appeals, the “work preservation doctrine
is sapped of all life.” 198 U.S.App.D.C. at 176, 613 F.2d at 909.
That this is so is vividly demonstrated by considering how different would have
been the results in National Woodwork and Pipefitters if we had adopted the approach
now chosen by the Board. In National Woodwork we held that carpenters could seek to
preserve their traditional work of finishing blank doors at the construction jobsite by
prohibiting the employer, a general contractor, from purchasing prefinished doors from
the factory. If we had followed the Board's current approach in analyzing the agreement,
we would have defined the work in controversy as “the finishing of blank doors away
from the construction site.” That work, of course, had never been done by the carpenters
employed by the general contractor, but had been performed by the employees of the
door manufacturers since before the adoption of the agreement. We would perforce have
determined that the object of the agreement was work acquisition, not work preservation.
Similarly, Pipe Fitters involved an agreement between a subcontractor and a
pipefitters' union that pipe threading and cutting were to be performed on the jobsite.
Relying on the agreement, the union refused to install climate-control units whose
internal piping had been cut, threaded, and installed at the factory. The Board held that
the provision was a lawful work preservation agreement, but that the refusal to handle the
prepiped units was an unfair labor practice because the units had been specified by the
general contractor and the subcontractor had no power to assign the employees the work
they sought. Neither the Court of Appeals nor this Court questioned the validity of the
work preservation clause but for the fact that it was enforced against an employer who
could not control the work. Under the Board's current approach, however, the “work”
would have been “cutting, threading, and installing pipe in climate-control units at the
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factory.” Since the bargaining unit employees had never performed that work, there
would have been no reason to reach the “right of control” issue.
Thus the Board's determination that the work of longshoremen has historically
been the loading and unloading of ships should be only the beginning of the analysis. The
next step is to look at how the contracting parties sought to preserve that work, to the
extent possible, in the face of a massive technological change that largely eliminated the
need for cargo handling at intermediate stages of the intermodal transportation of goods,
and to evaluate the relationship between traditional longshore work and the work which
the Rules attempt to assign to ILA members. This case presents a much more difficult
problem than either National Woodwork or Pipefitters because the union did not simply
insist on doing the work as it had always been done and try to prevent the employers
from using container ships at all-though such an approach would have been consistent
with National Woodwork and Pipefitters. Instead, ILA permitted the great majority of
containers to pass over the piers intact, reserving the right to stuff and strip only those
containers that would otherwise have been stuffed or stripped locally by anyone except
the beneficial owner's employees. The legality of the agreement turns, as an initial matter,
on whether the historical and functional relationship between this retained work and
traditional longshore work can support the conclusion that the objective of the agreement
was work preservation rather than the satisfaction of union goals elsewhere. (Footnote
omitted.)
I agree with the Respondents’ contention that the 10(k) decision here repeated the
fundamental error the Supreme Court addressed in ILA I. In this case there is ample evidence to
conclude that the 2008 PCLCD contains the parties’ bargain that permits the PMA employers to
install innovative equipment and technologies on the west coast ports in exchange for strictly
defined limitations on the use of nonunit employees by PMA employers to perform their
traditional M&R work on cargo handling equipment. This arrangement is far narrower than the
Supreme Court approved as a work preservation in the ILA cases. Thus, the Bulk Terminal Past
Practice LOU placed certain limits on the past practices that could be recognized under the
PCLCD in anticipation of the need to have M&R work available that could be performed by
equipment operators and others displaced by introduction of robotics and other technologies.
Hence, I find the work preservation aspects of the PCLCD focuses narrowly on the work
employees in the coastwise ILWU unit already perform at many locations and will be performing
in the future. According virtually insurmountable primacy to the past practice at a single
location of a coastwise bargaining unit simply strikes me as unsupportable under the ILA cases.
Contractually, the Bulk Terminal Past Practice LOU has monumental significance here as it
precluded KMBT from continuing to follow its past practice of using nonunit employees to
perform bargaining unit work. i.e., electrical M&R work on the cargo handling equipment.
In addition, the approach taken in the 10(k) decision appears to misapply the strict
definition of “work acquisition” activities as set forth in ILA II. There the Supreme Court
addressed that subject in the following manner:
However, while we acknowledge that the (preservation/acquisition) dichotomy may be
susceptible to wooden application, we are not prepared to abandon it. The “acquisition”
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concept in the work preservation area originated in National Woodwork, where we
distinguished Allen Bradley, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), as
involving “a boycott to reach out to monopolize jobs or acquire new job tasks when
[union members'] own jobs are not threatened.” 386 U.S., at 630-631, 87 S.Ct., at 1260–
1261 (emphasis added); see n. 15, supra. An agreement bargained for with the objective
of work preservation in the face of a genuine job threat, however, is not “acquisitive” in
the sense that concept was used in National Woodwork, even though it may have the
incidental effect of displacing work that otherwise might be done elsewhere or not be
done at all. See Pipefitters, 429 U.S., at 510, 526, 528–529, n. 16, 97 S.Ct., at 894, 902,
902–903, n. 16. Yet as the facts of Allen Bradley demonstrate, an agreement that reserves
work for union members may also have an unlawful secondary objective. The
preservation/acquisition dichotomy, when employed with the Allen Bradley distinction
firmly in mind, can serve the useful purpose of aiding the inquiry regarding unlawful
secondary objectives when an agreement attempts to secure work but “jobs are not
threatened.”
ILA II, 473 U.S. 61, 79 fn 19. Here, the 2008 PCLCD clearly describes a genuine threat to the
unit jobs, to wit, the introduction of robotics and other technological advances likely to displace
a large number of equipment operators by turning the loading and unloading of cargo into an
unmanned operation. By its very terms, the 2008 PCLCD seeks to limit the more recent
outsourcing of unit jobs to nonunit employees in order to diminish these looming adverse
consequences on unit employees who face the loss of the jobs they have been performing for
years. For that reason, I fail to see how a unlawful work-acquisition objective can be inferred
from the enforcement of the terms of that agreement even where it might result in the
displacement of nonunit workers currently performing the electrical M&R work at the VBT.
Based on the Supreme Court’s perception of the “preservation/acquisition dichotomy” quoted
above, I find any inference of a secondary objective would not be warranted in this case.
I find on the basis of the expanded record in this case, that the Respondent’s work
preservation defense warrants dismissal of this complaint in its entirety including the allegations
pertaining to the physical blocking of Accurate’s employees from the work they were called to
do at the VBT on October 18 and 21, 2013. Although their conduct was clearly unprotected
under Section 7 of the Act, it did not violate Section 8(b)(4)(B) and (D) as alleged in this
complaint. Accordingly, my recommended order will provide for the dismissal of this complaint
in its entirety.14
CONCLUSION OF LAW
1. The General Counsel failed to prove by a preponderance of the evidence that
Respondents violated Section 8(b)(4)(ii)(B) and (D) as alleged in the complaint.

14 In view of this conclusion, I find it unnecessary to reach the Respondents’ alternate
contention about the alleged demand that KMBT prepare a job description in September 2012 for
Local 4 to post at its hall.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 13, 2014

William L. Schmidt
Administrative Law Judge

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