PCMC/Pacific Crane Maintenance

National Labor Relations Board - Administrative Judge Opinions

Feb 12, 2009

32-CA-021925 (N.L.R.B. Feb. 12, 2009)

JD(SF)–09–09
Oakland, CA/Tacoma, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
PCMC/PACIFIC CRANE MAINTENANCE COMPANY, INC.
and Case 32-CA-21925
MACHINISTS DISTRICT LODGE 190, LOCAL LODGE
1546 and MACHINISTS DISTRICT LODGE 160, a/w
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
PACIFIC MARINE MAINTENANCE CO., LLC
and Case 32-CA-21974
(formerly Case 19-CA-29645)
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, DISTRICT LODGE 160, a/w
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
PACIFIC MARINE MAINTENANCE CO., LLC
and/or PACIFIC CRANE MAINTENANCE
COMPANY, INC.
and Case 32-CA-21977
(formerly Case 19-CA-29692)
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, DISTRICT LODGE 160,
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
PCMC/PACIFIC CRANE MAINTENANCE COMPANY, LP
and Case 32-CA-23613
MACHINISTS DISTRICT LODGE 190, LOCAL LODGE
1546 and MACHINISTS DISTRICT LODGE 160, a/w
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
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INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION (PACIFIC CRANE
MAINTENANCE COMPANY, INC.)
and Case 32-CB-5932
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO, DISTRICT
LODGE 190, LOCAL LODGE 1546
Valerie M. Hardy-Mahoney, Esq., of Oakland, California,
Kathleen C. Schneider, Esq., of San Francisco, California,
and Ryan E. Connolly, Esq., of Seattle, Washington,
for the General Counsel.
David A. Rosenfeld, Esq., (Weinberg, Roger & Rosenfeld),
of Alameda, California, for District Lodge 190, Local
Lodge 1546 affiliated with the International Association
of Machinists and Aerospace Workers of America, AFL-CIO.
Terry C. Jensen, Esq., (Robblee Brennan & Detwiler),
of Seattle, Washington, for District Lodge 160 affiliated with the
International Association of Machinists and Aerospace Workers
of America, AFL-CIO.
Howard C. Hay, Esq.,(Paul Hastings, Janofsky & Walker )
of Costa Mesa, for Respondents California for Pacific Crane
Maintenance Company, Inc., and Pacific Crane Maintenance Company, LP.
J. Al Latham, Esq. (Paul Hastings, Janofsky & Walker)
of Los Angeles, California for Respondent Pacific Marine
Maintenance Co., LLC.
Matthew D. Ross, Jacob F. Rukeyser and Robert S. Remar Esqs.,
(Leonard Carder) of San Francisco, California
for the International Longshore and Warehouse Union.
DECISION
Statement of the Case
CLIFFORD H. ANDERSON, Administrative Law Judge: I heard the above-captioned
consolidated case in trial in Oakland, California and Seattle, Washington over the period
September 2007 to June 2008. Post hearing briefs were timely submitted.1

1 I granted an all-party motion at trial allowing submission of reply briefs, which briefs were
timely submitted on November 10, 2008.
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The matter arose as follows. On March 14, 2005, District Lodge 190/Local Lodge 1546
and District Lodge 160, affiliated with the International Association of Machinists and Aerospace
Workers of America, AFL-CIO (sometimes collectively the Charging Party, the IAM or the
Machinists) filed a charge with Region 32 of the National Labor Relations Board (NLRB or
Board), docketed as Case 32-CA-21925, against Pacific Crane Maintenance Company, LP
(Respondent PCMC or PCMC) and amended that charge on March 16, 2005. The amended
charge alleged violations of Sections 8(a)(1), (2), (3), and (5) of the National Labor Relations Act
(the Act).
On February 15, 2005, Charging Party District Lodge 160, affiliated with the International
Association of Machinists and Aerospace Workers of America, AFL-CIO (Charging Party District
Lodge 160) filed a charge with Region 19, docketed as Case 19-CA-29645, against Pacific
Marine Maintenance Co, LLC (Respondent PMMC or PMMC) and amended that charge on
March 18, 2005. The charge was subsequently transferred from Region 19 to Region 32 and
renumbered as Case 32-CA-21974. The charge alleged violations of Section 8(a)(1), (2), (3),
and (5) of the Act.
On March 18, 2005, District Lodge 160 filed a charge with Region 19, docketed as Case
19-CA-29692, against Pacific Maritime Maintenance Co., LLC (PMMC) and PCMC (sometimes
collectively Respondent Employers) and amended that charge on April 4, 2005. The charge was
subsequently transferred from Region 19 to Region 32 and renumbered as Case 32-CA-21977.
The amended charge alleged violations of Sections 8(a)(1), (2), (3), and (5) of the Act.
Based on the above charges, on May 31, 2007, the Regional Director issued a
consolidated complaint against Respondent Employers which was, on August 15, 2007, and
subsequently, amended on various occasions. The Respondent Employers filed or made
appropriate on record answers to the complaint and all subsequent amendments to the
complaints.
On November 5, 2007, the Charging Party filed a charge with Region 32, docketed as
Case 32-CA-23613, against PCMC/Pacific Crane Maintenance Company LP. On
December 14, 2007, the Regional Director issued a complaint regarding Case 32-CA-23613
and, on December 18, 2007, the General Counsel moved that I consolidate that complaint with
the instant consolidated matter. At trial on January 14, 2008, I granted the unopposed motion.
A timely answer was filed to the complaint.
On April 7, 2005, District Lodge 190 filed a charge with Region 32 docketed as Case 32-
CB-5932 against the International Longshore and Warehouse Union (the ILWU or Respondent
Union). The charge alleged violations of Sections 8(b)(1)(A) and (2) of the Act. On
May 31, 2007, the Regional Director for Region 32 issued a complaint against Respondent
Union. The Respondent Union filed a timely answer to the complaint.
The final amended consolidated complaint against the Respondent Employers, as
variously amended during the proceeding, alleges that Respondents PMMC and PCMC, in
engaging in the actions alleged in the complaints, acted as a single, integrated business
enterprise and a single employer. Further, it alleges PMMC maintained a collective bargaining
relationship with the Machinists respecting unit employees located in Seattle/Tacoma,
Washington and Oakland, California, reflected in a collective bargaining agreement entered into
with the Machinists in 2002. In early 2005, PMMC notified the Machinists that unit employees
would all be laid off effective April 1, 2005; that PCMC would no longer do the Maersk work on
which the unit employees had heretofore been employed; that PCMC would from that time
forward undertake the unit work employing employees represented by the ILWU, and that if
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PMMC’s unit employees wished to work for PCMC doing the Maersk unit work under an ILWU
contract, they should apply to PCMC for new employment.
The final amended consolidated complaint against the Respondent Employers alleges
that the Respondent Employers, in mid-February through mid March 2005, restricted
contractually-established Machinist agent access to one of the unit employees’ work areas and
ceased the provision of contractually agreed upon on-premises bulletin board space to the
Machinists - all without prior notice to or bargaining with the Machinists respecting such
limitations, the effects of such limitations and without obtaining the Machinist’s consent to such
changes.
The final amended consolidated complaint against the Respondent Employers further
alleges that the Respondent Employers, in late March 2005, withdrew recognition of the
Machinists as the unit employees’ representative effective with the employees’ discharge by
Respondent PMMC and further alleges that Respondent PMMC in fact discharged the unit
employees, effective on or about March 30, 2005, without bargaining with the Machinists
respecting the discharges or unit terms and conditions of employment following the discharges,
and without obtaining the Machinists’ consent to such changes. The complaint also alleges that
the Respondent Employers granted the ILWU recognition as the representative of employees in
the bargaining unit on or about March 31, 2005, and applied the terms and conditions of a pre-
existing collective bargaining agreement with the ILWU to unit employees including the
contract’s union-security clause, all at a time when the ILWU did not represent an uncoerced
majority of the employees in the unit.
The complaint in Case 32-CA-23613 against the Respondent PCMC/Pacific Crane
Maintenance Company, LP (sometimes PCMC LP) additionally alleges that various purchases
and changes of ownership and changes in business organization and legal form occurred at
relevant times respecting the Respondent Employers, and that these new entities and
participating individuals have at all times material been kept informed of the Respondent
Employers’ potential liabilities under the instant complaints, and that Respondent PCMC LP has
continued the employing entity of Respondent PCMC and is a successor to Respondent PCMC.
Further the complaint in Case 32-CA-23613 alleges that Respondent PCMC LP granted the
ILWU recognition as the representative of employees in the bargaining unit, on or about August
15, 2007, and applied the terms and conditions of a pre-existing collective bargaining
agreement with the ILWU to unit employees; including the contract’s union-security clause, all at
a time when the ILWU did not represent an uncoerced majority of the employees in the unit.
The above recited allegations of the final complaint against the Respondent Employers
are also alleged to violate Section 8(a)(1), (2) and (5) of the Act. The complaints do not allege,
as was alleged in the Charging Party’s charges, that the Respondent Employers violated
Sections 8(a)(3) of the Act or that the Respondent Employers were alter egos of one another.2
The allegations of the complaint against the Respondent ILWU allege that on or about
March 31, 2005, the ILWU accepted recognition from the Respondent PCMC as the
representative of unit employees and applied the terms and conditions of a pre-existing
collective bargaining agreement with PCMC to unit employees including the contract’s union-
security clause, all at a time when the ILWU did not represent an uncoerced majority of the

2 For that reason the references to “alter ego” in the various complaint case captions have
been removed.
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employees in the unit and at a time when the ILWU did not properly represent unit employees.
This conduct is alleged in the complaint to violate Sections 8(b)(1)(A) and (2) of the Act.
Findings of Fact
Upon the entire record herein, including very helpful briefs from each of the parties,
I make the following findings of fact.3
I. Jurisdiction
The Respondent PCMC is, and has been at all material times, a California state
corporation with an office and place of business in Long Beach, California, and has been
engaged in the maintenance and repair of waterfront terminal cranes and other stevedoring
equipment, including at terminals located in the ports of Long Beach, Los Angeles and Oakland,
California and Seattle and Tacoma, Washington.
The pleadings establish that Respondent PCMC, during the period immediately following
the issuance of the complaint against it herein, derived gross annual revenues in excess of
$50,000 from its business operations and provided services valued in excess of $50,000 to
customers located outside the state of California.
Based on the above, there is no dispute and I find the Respondent PCMC is and has
been at all times material an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent PMMC is, and has been at all material times, a California limited-
liability company with offices and places of business in the ports of Long Beach, California, and
Tacoma, Washington and has been engaged in the maintenance and repair of waterfront
terminal containers and other stevedoring equipment, including at terminals located in the ports
of Long Beach, and Tacoma, Washington.
The pleadings establish that Respondent PCMC, during the period immediately following
the issuance of the complaint against it, herein, derived gross annual revenues in excess of
$50,000 from its business operations and provided services valued in excess of $50,000 to
customers located outside the state of California.
Based on the above, there is no dispute and I find the Respondent PCMC is and has
been at all times material an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. Labor Organizations
The pleadings establish, there is no dispute, and I find each of the following institutions
are labor organizations within the meaning of Section 2(5) of the Act:

3 The parties submitted pre-trial statements of position, post-hearing briefs. and reply briefs.
I granted an unopposed post-hearing motion of the General Counsel to receive into evidence
certain inadvertently omitted evidence.
As a result of the pleadings and the stipulations of counsel at the trial, there were few
disputes of fact regarding collateral matters. Where not otherwise noted, the findings herein are
based on the pleadings, the stipulations of counsel, or unchallenged credible evidence.
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1. Local Lodge 1546 affiliated with District Lodge 190 and the International
Association of Machinists and Aerospace Workers of America, AFL-CIO,
2. District Lodge 190 affiliated with the International Association of Machinists and
Aerospace Workers of America, AFL-CIO,
3. District Lodge 160, affiliated with the International Association of Machinists and
Aerospace Workers of America, AFL-CIO,
4. The International Association of Machinists and Aerospace Workers of America,
AFL-CIO,
5. The International Longshore and Warehouse Union.
III. The Alleged Unfair Labor Practices
This case involves issues and allegations and a series of events of some complexity. To
facilitate understanding, the circumstances and issues are initially summarized below and are
thereafter followed by a more complete development of the facts, events, party positions,
argument, analysis and conclusions.
A. Grossly Simplified Initial Statement of Facts, Allegations, Issues, and Positions
1. Abbreviated Facts
For many years PMMC had contracted with shipping entity Maersk4 to provide maritime
terminal-based longshore and shipping equipment maintenance and repair services at Maersk
terminals5 along several West Coast ports. The Charging Party Machinists represented a
bargaining unit of employees of Respondent PMMC who undertook the contracted work at
Maersk terminals in the ports of Tacoma, Washington and Oakland, California. The Machinists
and PMMC’s most recent collective bargaining agreement (sometimes PMMC-IAM contract)
covering the noted employees was effective, by its terms, from April 1, 2002 through
March 31, 2005. The contract sets forth the following language in Article 1 [Spelling and
capitalization as in the original.]:
Section 2 – WORK JURISDICTION
This agreement shall cover but not be limited to, all following types of work:
Maintenance, Body and Fender Work, Painting, Rebuilding, Dismantling,
Assembling, Repairing, Installing, Erecting, Welding and Burning (or grinding

4 Maersk, a major international shipping company, has various international and United
States divisions and subdivisions. The specific organizational units of Maersk that employed
particular agents of Maersk involved, herein, are not material to the issues herein. Accordingly
all corporate subentities and their employees are generically referred to simply as Maersk or
Maersk employees or agents.
5 The two Maersk terminals involved herein also served another shipping entity; Horizon,
which obtained essentially the identical services Maersk did, albeit on a far smaller scale, in
essence in a “me too” contract relationship with PMMC and PCMC for the similar but lesser
volume of service required by that shipper.
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processes connected therewith), Inspecting, Diagnosing, Cleansing, Preparing or
Conditioning of all units and auxiliaries (includes refrigeration and air conditioning
(units) related to passenger card, buses, pickups, motor cycles, tractors, 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.
This Agreement shall also cover terminal maintenance, lubricating, fueling,
washing, cleaning, polishing, steam rack operations, tire repairing, tire service
operations, parts and stockroom operations, shop and yard cleanup, stock and
parts pick-up and delivery as presently and hereafter being performed by
employees represented by the Union.
This Agreement shall apply to all facilities and operations where the Employer
does business and has commercial control.
Section 3. EMPLOYEES COVERED: Employees covered by this Agreement
shall include, but not be limited to: Mechanics, Apprentices, Painters,
Maintenance Employees, Body and Fender Mechanics, Fuelers, Washers,
Tiremen, Partsmen and such other employees as may be presently and hereafter
represented by the Union.
* * *
Section 6. SINGLE BARGAINING UNIT: The common problems and
interests with respect to the basic terms and conditions of employment of the
employees covered hereby have resulted in the establishment of this Agreement.
Accordingly, the Unions and the Employer covered by this Agreement
acknowledge that the employees covered by this Agreement constitute a single
employer multi-union collective bargaining unit.
For many years PCMC also contracted with Maersk and other shippers and stevedore
companies, to provide maritime terminal-based longshore and shipping equipment maintenance
and repair services at many West Coast ports. The Respondent ILWU represented the
mechanic employees of Respondent PCMC who undertook the noted contracted work at West
Coast terminals as part of a large, multi-employer contract covering longshore and mechanic
employees on the West Coast docks. The multi-employer association signatory to this
agreement, and of which PCMC is a long-time member, is the Pacific Maritime Association
(PMA). The relevant contract covering the noted PCMC/ILWU employees was effective by its
terms from July 1, 2002 through July 1, 2008. That agreement, at Section 1, defines the work
covered to include longshore work of signatory employers in West Coast ports in various
particulars and addresses maintenance and repair in part at Sections 1.7 et seq.:
1.70 This Contract Document shall apply to the maintenance and repair of
containers of any kind and of chassis and the movement incidental to such
maintenance and repair.
1.71 This Contract Document shall apply to the maintenance and repair of all
stevedore cargo handling equipment.
1.8 Any type of work assigned herein in Sections . . . 1.7 and 1.71 to
longshoremen that was done by nonlongshoremen employees of an employer or by
subcontractor pursuant to a past practice that was followed as of July 1, 1978, may
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continue to be done by nonlongshoremen employees of that employer or by
subcontractor at the option of said employer.
1.81 This Contract Document shall apply to all movement of containers and
chassis under one of the following conditions: (a) when containers or chassis are
moved on a dock from a container yard to or from a storage area adjacent to a
maintenance and repair facility or from a storage area adjacent to a maintenance
and repair facility from the same dock. . . .
At all relevant times, the Parties stipulated Respondents PMMC and PCMC have been
involved in the events in contention as a single employer under Board decisional standards.
Maersk was aggressive in managing its costs and pressured its contractors to reduce
their charges to it: indicating that it reserved the option to bring the contracted terminal work in-
house or to obtain another vendor. It placed such pressure on PMMC in 2004. In late 2004
Maersk agents contacted PCMC and solicited a bid by it for the work then being done by
PMMC. Maersk also contacted PMMC respecting the cost of its contract work in Oakland and
Tacoma. PCMC responded that it would do the Oakland and Tacoma work, as it was then
doing the other Maersk work it then had, in the same manner and at the same cost. PMMC
informed Maersk that it would continue the work at the rate then in place, with the rate to adjust
upon the negotiation of the new IAM/PMMC contract to replace the one expiring on
March 31, 2005.
While the evidence is in dispute as to the extent communication occurred between their
agents, PMMC did not formally inform the Machinists of the position Maersk was taking with
respect to the terminal mechanics contract nor formally seek to reopen the current IAM/PMMC
contract to lower labor costs which could be passed through to Maersk or ask for concessions in
any renewal agreement.
At a meeting with Maersk agents on January 6, 2005, in Charlotte, North Carolina,
attended by Maersk, PCMC and PMMC agents, Maersk announced that effective the end of
March 2005, the work then performed by PMMC for Maersk in Tacoma and Oakland would be
done by PCMC. The details of the transition were discussed and arranged.
Thereafter PMMC told its unit employees that PMMC would terminate its unit employees
effective on or about March 31, 2005 and also informed the Machinists that as of the unit
employees discharge the Machinists would no longer be recognized as the representative of
PMMC’s unit employees. The unit employees were informed they could apply for employment
with Respondent PCMC who would be performing the Maersk work lost by PMMC under a
collective bargaining agreement Respondent PCMC had with the Respondent ILWU.
PMMC mechanic employees applied to PCMC for employment. By about
March 1, 2005, PCMC determined to hire approximately 75-80 PMMC employees and sent
them employment offer letters which were accepted. By March 9, PCMC had sent the new
employees information regarding ILWU contract terms and other initial employment protocols
which were being implemented.
As part of this series of events, the Machinists demanded PCMC recognize it as the
mechanics employees’ representative, which demand was refused. PCMC at all times from
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before the hire of employees6 recognized the ILWU as the representative of its new mechanics
employees which it and the ILWU treated as an accreted part of the Coastwide bargaining unit
to which the Coastwide collective bargaining agreement, including the union-security provisions,
applied.
On March 30, 2005 PMMC discontinued operations. On March 31, 2005, PCMC took
over the operations previously undertaken by PMMC having hired the great bulk of the
terminated PMMC Machinist-represented bargaining unit employees, who in turn constituted the
great majority of the mechanic employees who had been actually doing the work lost by PMMC.
This work and the employees working for PMMC doing it were considered by both PCMC and
the ILWU to be accreted into and an inseparable part of the ILWU PMA/Coastwide unit and
covered by the West Coast ILWU PMA/ Coastwide longshore collective bargaining agreement.
Both PMMC and PCMC refused to recognize the Machinists after PMMC’s discontinuance of
the Maersk contract mechanic work as the representative PMMC’s former employees or of the
employees now doing the work for PCMC that PMMC had previously undertaken.
2. Allegations of the Complaints in Contention
The Charging Party Machinists filed the previously noted charges with the Board which
were found to be meritorious in part by the General Counsel and were included in the
complaints described above. Essentially the General Counsel’s complaints make three types of
allegations. First, the government contends that PMMC7 in its conduct both in its affirmative
actions, and in its omission to take certain actions, all in the first quarter of 2005, failed in its
duty to bargain in good faith with the Machinists respecting the termination of its unit
employees8 and wrongfully withdrew recognition of the Machinists as the representative of the
PMMC and PCMC unit employees. In so doing, the complaints allege the Respondent
Employers violated Section 8(a)(1) and (5) of the Act.
Second the government’s complaints allege that, even if PMMC is not found to have
violated the Act as described above, when PCMC hired the great majority of the PMMC unit
employees who then constituted the great majority of the bargaining unit doing its new Maersk
maintenance and repair work in Oakland and Tacoma, PCMC was a legal successor to PMMC
and became obligated to recognize the Machinists as the representative of those employees in
a Tacoma and Oakland M&R mechanics’ bargaining, and in consequence, could not properly
withhold recognition of the Machinists as those employees’ representative and also could not
recognize the ILWU as the representative of the employees by asserting they had accreted into
the much larger coastwide bargaining unit. By undertaking the described acts and omissions,
the government further alleges, PCMC violated Sections 8(a)(1), (2), and (5) of the Act. The

6 PCMC inquired of the ILWU about the availability of mechanic applicants through the
ILWU/PMA hiring hall before any hires occurred.
7 The parties stipulated that PCMC and PMMC were a single employer mid trial. The earlier
complaint allegations were directed individually against either PCMC or PMMC, but later
amendments merged the Respondent Employers as actors under a single employer theory.
Conceptually it is easier for portions of the factual presentation and analysis to retain the earlier
distinctions between PCMC and PMMC as actors.
8 The counsel for the General Counsel made clear in her Position on the Issues and
Statement of Position, at 5, that PMMC engaged in effects bargaining regarding the termination
of its Oakland and Tacoma Maersk operations. She also noted the General Counsel did not
allege failure and refusal to provide information to the IAM because the information issues were
subsumed by and in the complaints’ single-employer allegations.
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Respondent ILWU, in accepting such improper recognition from PCMC as the representative of
the mechanics unit employees and in enforcing the union-security clause of the Coastwide
ILWU contract as to these employees, the complaints allege, violated Section 8(b)(1)(A) and (2)
of the Act.
Third, the government contends that in the final month of its employment of unit
employees in Oakland and Tacoma, PMMC improperly restricted contractually-provided
Machinist Union agent access to the jobsites and limited the unit employees’ contractual rights
to use a bulletin board on site for union business. This conduct is alleged by the complaints to
have been done without bargaining with the Machinists or obtaining their consent and therefore
violates Section 8(a)(1) and (5) of the Act.
The Respondents oppose all of these arguments and allegations and deny in any way
violating the Act. They contend that there was no statutory obligation for the Respondent
Employers to bargain over the decision to lay off the PMMC unit employees and that the PMMC
bargaining unit employees hired by PCMC, along with all other employees hired to undertake
the duties previously undertaken by PMMC, were properly accreted into the PMA-ILWU
Coastwide bargaining unit at the very onset of their employment for PCMC. Thus, PMMC’s
discontinuance or withdrawal of recognition of the Machinists as the mechanics unit
representative and PCMC’s granting of recognition to the ILWU as the representative of the
mechanic employees who undertook PCMC’s Tacoma and Oakland Maersk M&R operations
was proper. Finally they contend the argued restrictions of union agent access and bulletin
board use did not occur as alleged, and further, would not have violated the Act in all events in
as much as the employee activity involved was not union activities of the type the union was
contractually entitled to engage in.
3. Issues and the Parties’ Positions
In greatly simplified form, the first set of allegations respecting PMMC’s bargaining
obligation during the events at issue requires consideration of the bargaining and contractual
relations of the parties and the events leading to the termination of PMMC unit employees for
purposes of determining if the Respondent PMMC had a bargaining obligation with respect to
any or all of its decisions taken in the period preceeding the discharges and, if it had such
bargaining obligations under the Act, whether or not it met its obligations and/or whether or not it
could present defenses to those alleged obligations. Both the details of the events themselves
and their legal consequences are in dispute and the parties perceive the bargaining obligations
of an employer under the Act in the circumstances presented very differently. The implications
and general consequences of the single employer status of PCMC and PMMC on these
questions is also an important issue.
The second group of allegations, as set forth above, dealing with the bargaining rights
and obligations of PCMC in hiring the PMMC mechanics also requires consideration of the
relations of the parties and the events. Part of the issue of representation rights of PMMC
employees deals with the facts and statutory presumptions respecting employee
representational preferences. Critical to that determination is a decision respecting what
bargaining units were appropriate under Board law at relevant times. This latter question brings
into issue unit appropriateness and most importantly accretion issues applicable to the
employees in contest. That consideration includes a broad consideration of: (1) the West Coast
marine terminal bargaining units as they are relevant to the work of maintenance and repair of
marine terminal-based loading and container related equipment, (2) the organizational structure
and practices of PCMC respecting its mechanics, and (3) the practices of PMMC respecting its
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mechanics and, finally, (4) a close consideration of the terms and conditions of employment of
the Respondent Employer’s mechanics at relevant times.
The Charging Party and the General Counsel argue that the appropriate Oakland and
Tacoma Maersk terminals PCMC mechanic unit, on and after March 31, 2005, is a unit of
employees identical to, or very similar to the PMMC unit of mechanic employees terminated in
March 2005. They argue that that bargaining unit is favored by the Board and, considering that
unit in particular, there is no question the Machinists under Board law must be held to have at all
times represented a majority of unit employees under both PMMC and PCMC. The Charging
Party and the General Counsel argue that the Respondent PCMC was obligated to recognize
the Machinists as the unit employees’ representative and to fulfill their statutory duty to bargain
with the Machinists respecting it. Consequently, the Charging Party and the General Counsel
further argue, the recognition of the ILWU and the application to unit employees of the
ILWU/PMA contract and its union-security provisions were was also improper.
The Respondents argue to the contrary that PCMC, in adding the Maersk mechanic
work in question on March 31, 2005 to its own already significant coastwide complement
mechanic employees engaged in operations for Maersk and other marine shippers, from the
onset, accreted the newly-awarded mechanics work and the newly-hired M&R mechanics
employees into its West Coastwide mechanics operations – all of which employees had both
historically and at all relevant times been covered by the West Coast longshore contract
between PCMC and other employers as members of the PMA multi-employer association, and
the ILWU. The Respondents argue that the record in this case supports a finding that no other
bargaining unit remained appropriate at the time PCMC assumed the Maersk Tacoma and
Oakland operations and therefore the Respondents’ conduct in regards thereto was permitted
under the Act.
Respecting the third category of allegations concerning the PMMC’s alleged restrictions
on Machinists agents’ access to the workplace and use of jobsite bulletin boards, the
Respondent Employers challenge the version of events offered by the Charging Party and the
General Counsel and further argue additional events and circumstances rendered the
restrictions, such as actually occurred, benign and non-violative of the Act.
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B. Background
1. The West Coast Longshore Industry9
Those who work along the shore to load and unload ships are commonly referred to as
longshore employees.10 As the title conveys, there is both a geographical element and an
occupational element to the term. As used in modern times, the term longshore industry
includes not just the employees and employers who actually load and unload ships, but the
entire “along shore” or marine terminal-based panoply of employee occupations and equipment
utilized in the loading and unloading of ships in the broader sense.
The United States ships and receives goods coming from or going to eastern and
transpacific areas generally at its West Coast ports. By the early part of the 20th century
significant ports had evolved in Southern California, the San Francisco Bay Area, the Portland,
Oregon area, the Puget Sound, Washington area, and in various smaller locales. Those
locations have become ever more active shipping locations. The West Coast longshore
industry has had a colorful organizational history which is set forth in detail in the Board’s
decision, Shipowners’ Association of the Pacific Coast, et al., 7 NLRB 119 (1938), certifying the
ILWU as the longshore employees’ representative in an essentially coastwide marine terminal
bargaining unit. Over the following half century what had been essentially but not entirely, a
coastwide unit became even more so as various union locals and West Coast ports not
originally part of the 1930s bargaining unit joined thereafter. So, too, additional West Coast
employers came together into a single multi-employer association which in recent times has

9 Current definitions relevant to the U.S. Longshore industry may be found in U.S.
Department of Labor, Occupational Safety and Health Administration Safety and Health
standards concerning the marine terminal and longshoring industries, Set forth at Title 29 Code
of Federal Regulations (CFR) Part 1917 (June 30, 2000) which states in part:
§1917.1— Scope and applicability
The regulations of this part apply to employment within a marine terminal as defined in
§1917.2, including the loading, unloading, movement, or other handling of cargo, ships’
stores, or gear within the terminal or into or out of any land carrier, holding or
consolidation area, any other activity within and associated with the overall operation and
functions of the terminal, such as the use and routine maintenance of facilities and
equipment. All cargo transfer accomplished with the use of shore-based material handling
devices shall be regulated by this part.
§1917.2—Definitions
* * * *
Marine terminal means wharves, bulkheads, quays, piers, docks, and other berthing
locations and adjacent storage or adjacent areas and structures associated with the
primary movement of cargo or materials from vessel to shore or shore to vessel including
structures which are devoted to receiving, handling, holding, consolidating, and loading or
delivery of waterborne shipments or passengers, including areas devoted to the
maintenance of the terminal or equipment. The term does not include production or
manufacturing areas nor does the term include storage facilities directly associated with
those production or manufacturing areas.
10 Or, similarly, but from Latin origins, “stevedores”
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been titled the Pacific Maritime Association (sometimes the PMA). Later ILWU M & R
mechanics, the employees who undertake the on terminal maintenance and repair of
stevedoring equipment, containers and associated equipment, were added to the Coastwide
stevedore bargaining unit.
Two powerful post-World War II trends have been contributory causes of profound
change in the longshore industry over the years. First has been the extraordinary and
continuing growth in the volume of materials shipped through the ports of the world and the
West Coast ports of the United States in particular and, second, has been the important and
ongoing technological changes in the shipment of goods by means of container systems which
move goods in large containers carried on purpose built container ships.
Containers of ever larger size carried in ever larger numbers by ever larger container
ships has caused repeated rebuilding and/or replacement of shipping terminals to facilitate
faster unloading of large ships and to provide significantly larger land areas to receive and
process the very large numbers of containers involved in loading or unloading large modern
container ships. Part and parcel of this process has been a fantastic increase in the size,
complexity and number of machines and devices in use at terminals in the increasingly
mechanized loading and unloading process. All of these things have had important
consequences for the employment mix at marine terminals over time.
Essentially, the technological changes described have massively increased the amount
of equipment in operation in the loading and unloading process. The maintenance and repair of
this equipment has significantly increased the on-terminal needs for maintenance and repair
mechanics to keep the mechanical aspect of the loading and unloading process in good order.
For the shipping terminal engaged in the loading and unloading of commercial cargo
ships, efforts focus on the times when a ship or ships is docked at the terminal to be loaded
and/or unloaded. With a ship’s departure, i.e. when no ship is at the dock, terminal work and
personnel needs plummet and all is in anticipation of the next ship’s arrival. Loading and
unloading ships is classically intermittent work for longshore employees. Longshore
employment for this reason has historically involved – to a significant proportion - episodic or
casual employment by individual longshore employees or gangs of employees at multiple
terminals over time as opposed to steady or full time employment with a single employer at a
single marine terminal. Longshore employees generally work for many of the local area shipping
or stevedore companies, and at many terminals in the local port or ports to be fully employed.
This need of longshore employers for significant numbers of longshore employees for
repeated short periods of casual employment supported the historic staffing technique of the
“shape-up” wherein labor applicants were chosen from the crowd of soliciting applicants seeking
casual longshore work. The West Coast longshore industry, as part of the 1930s organization
process discussed by the Board in Shipowners’ Association of the Pacific Coast, et al., 7 NLRB
119 (1938), rejected that earlier method of longshore “shape up” hire and created, and
thereafter has utilized a joint hiring hall process in which the employer association and the ILWU
jointly controlled the number of experienced unit members using the hiring hall and provided for
the dispatch of hiring hall registrants to employers on a short term basis allowing the employers
to smoothly meet their short-term longshore employment loading and unloading requirements
as ships arrived and departed. In an important sense, the pool of longshore hiring hall
registrants were employees of the PMA-ILWU joint hiring hall rather than employees of any
particular employer member of the PMA.
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Over time, the various technological changes in shipping described above have driven
the physical growth of the terminals, the size of terminal employers’ employment complements
and the amount, size, and complexity of the machinery used on the docks to load and unload
ships and move about and otherwise handle the cargo, i.e. containers, to be loaded or that have
been unloaded. Further these changes have to a degree changed the composition of the skill
set of longshore employees in the bargaining unit. As the amount and complexity of equipment
in use in loading and unloading ships has increased, the number of mechanics and other
specialized terminal longshore employees has also grown. Because many of these specialized
workers work on specialized terminal equipment rather than being directly or exclusively
involved with the loading or unloading of ships, these specialized employees have been
increasingly employed by terminal employers on a full-time basis, i.e. as steady hands, rather
than as dispatch employees who are employed for traditionally brief periods, being dispatched
out of the hiring hall and returning again to the hall at the end of the short period of employment
to obtain another dispatch for like employment for a like period.11
Highly relevant to the issues herein, maritime shippers or their terminal contractors, have
over time hired more and more maintenance and repair (M&R) mechanics to maintain and
repair the myriad machines and equipment used in the container shipping processes.
Since the 1930s, as noted supra, the West Coast longshore workers have been
represented essentially exclusively by the ILWU and that representation has evolved into a
single, all-encompassing, multi-employer/multi-port coastwide unit. The union representation of
the various specialized trades and occupations on the dock has not been so monolithic. M&R
mechanics on the West Coast docks have a history of representation by both the ILWU and by
the IAM with each labor organization continuing to represent these individuals and clearly
desirous to this day of continuing to represent these individuals. The M&R mechanics who work
on the large land-based container cranes which unload the containers historically have been
separately represented by a variety of labor organizations including the ILWU.
While the ILWU represented and now represents a number of terminal M&R mechanics
coastwide, including both crane and non-crane mechanics, individually or collectively for various
employers at various locations, credible Machinists witness testimony suggests that the IAM-
represented terminal M&R mechanic employment is of like or superior numbers and has had a
similar log history. Particular West Coast areas, ports or even individual terminals or carriers
have differing histories of mechanic representation by particular labor organizations. Some
areas or ports employ a mixture of ILWU and IAM represented mechanics. Other areas such as
the Puget Sound had a history of greater IAM representation of mechanics. See the Board’s
discussion in IAM, District Lodge 160, Local Lodge 289 (SSA Marine), 347 NLRB 549 (2006).
PMA agents credible testimony herein suggested the Port of Tacoma did not have ILWU
represented mechanics until PCMC ILWU represented mechanic employees obtained
employment at the port as described herein.

11 Herein a full-time employee of a single employer is a “steady” employee and a request for
the hiring hall to dispatch an employee for full-time employment is a request for a steady hand.
A casual employee employed for a single work shift or other short period often related to the
duration of the task of loading or unloading a particular vessel, is a hall hand and a request for
the dispatch of such an employee would be a request for a “hall” dispatch. Respecting M&R
mechanics in the hiring hall process, the terms applied herein are similar: hall mechanics and
steady mechanics.
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Rivalry between the ILWU and the IAM in representing this craft arose in part because of
the technological changes described which, over time, has caused mergers between differently
represented units. Various efforts over the years to reach agreement or accommodation
between the ILWU and the Machinists respecting these employees have not always been
successful. See e.g. IAM, District Lodge 160, Local Lodge 289 (SSA Marine), 347 NLRB 549
(2006).
This evolution and conflict between the ILWU and the IAM respecting the representation
of terminal-based M&R mechanics is not new and has been discussed in earlier Board
decisions. Of particular value for its background discussion is the Board’s decision in Pacific
Maritime Association, 256 NLRB 761 (1981), which describes earlier arrangements and
circumstances involving the ILWU and Machinists and shipping companies and terminals that
are predecessors to the terminals involved herein, Sealand for example. By the time of the
events in contention here, at least generally and at the terminals at issue herein, M&R mechanic
work in any given location was not divided between the ILWU and Machinists on the basis of a
jurisdictional division of the work. Rather, as will be discussed in detail below, different
terminals utilized M&R mechanics in essentially similar ways with some shipping companies, or
their contractors employing Machinist-represented mechanics on a single employer or single
terminal basis and other shipping companies, or their contractors, at other terminals employing
ILWU-represented M&R mechanics. Generally the ILWU mechanics were in the West Coast
bargaining unit under the PMA-ILWU Coastwide contract. The IAM-represented employees
were in single employer units and not under any multi-employer agreement. The ILWU unit had
the hiring halls described. The Machinist units did not operate hiring halls.
2. The Nature and Organization of Terminal Maintenance and Repair Work12
In order to understand the work of mechanics engaged in terminal maintenance and
repair, the nature of container shipping must be briefly considered. Container ships essentially
load and carry large metal containers which are not stuffed or unstuffed at the terminal. During
the shipping process full containers arrive at the terminal and are stored awaiting loading.
Containers are constructed to be able to be stacked up to six containers high and terminal
equipment is able to select, move, carry, stack and unstack containers as part of the loading
and unloading process. Once loaded, containers are secured on the vessel and the reverse
applies for unloading ships with the containers taken off the vessel and stored on site during
unloading to await removal from the dock.
The containers are designed to be transported by truck by being mounted on a chassis
which in essence is rather like a flatbed truck trailer, i.e. an arrangement of road-ready wheels
and associated load bearing and drivability equipment comprising a custom structure on which
the shipping container may be safely mounted and the entire apparatus pulled by tractor truck
on roads to its intended destination. What may seem to be the body of a truck on our freeways
is often a container from a ship mounted on a container chassis pulled by a tractor truck. Many
containers are simply inert storage containers but others are for refrigerated cargo and are
constructed for that purpose and equipped with onboard refrigeration equipment and onboard
power generation equipment, to power the refrigeration equipment when other power is not
available.

12 Dispute specific discussion of the relationship and comparison of the PMMC and post
PMMC PCMC operation is discussed separately in detail infra. The instant presentation is
simply descriptive for background purposes.
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Generally an arriving vessel will require container off-loading before loading. Very large
- often up to 180 feet high – terminal-based, rail-mounted stationary cranes off load a ship’s
containers and the containers are sorted and stacked in great number and to great heights at
the shippers facility in anticipation of their being mounted on chassis and taken away from the
terminal to their destination by tractor truck or by rail.
Loading is essentially the reverse. In anticipation of shipping, containers have been
loaded with material away from the terminal and then hauled on container chassis by tractor
trucks to the terminal grounds. There the containers are separated from their chassis and the
containers are sorted and stacked to great heights and in great numbers anticipating vessel
loading. When loading of the vessel begins, containers are selected in their proper order from
the stacks and are delivered to the stationary crane areas and loaded aboard the vessel.
The above delicate description does not do justice to the actual process which involves
skilled employees and large numbers of large pieces of equipment moving thousands of
containers in an organized choreography under tight time constraints and often conducted
essentially without break around the clock in all weather. During this process equipment
malfunctions, is damaged, or is discovered to be damaged or dysfunctional. As necessary and
possible, the things that do not work are repaired or set aside and the process goes on till the
loading is concluded and the ship disembarks. Then the process turns to putting things again in
order, dispersing off loaded containers, collecting containers to be shipped in future and
anticipating the next vessel’s arrival, loading and unloading.
The various container moving and loading equipment must regularly be maintained and
repaired as needed. The heavy stationary cranes must be tended to as appropriate and are
often handled by mechanics in their own department with separate onsite facilities. The
remaining non-crane M&R mechanics are often considered as a separate non-crane single unit.
This group may have several departments although skills and training often allow transfer and
interchange between and among them. Generally the large and very large devices - often able
to straddle and stack or carry away containers from or to high stacks of containers - are
maintained and repaired where they are normally located at the terminal. Smaller equipment is
normally taken to maintenance buildings with multiple bays allowing mechanics ready access to
the mechanics equipment and tools necessary for specialized tasks.
Mechanics involved with the power or drive train elements of equipment work in the
terminal M&R power department. Refrigeration equipment maintenance and repair respecting
containers which are able to carry refrigerated contents occurs in the reefer (refrigeration)
department. On board power generation equipment allowing container refrigeration to be self-
sustaining when away from auxiliary power connections is maintained and repaired in the gen-
set (generator sets) department. Maintenance and repair of chassis is undertaken in the
chassis department. The roadability department insures that the arriving and or departing
containers and associated equipment is safe and legal for road hauling by tractor trucks.
The short ship arrival/departure cycle with its varying labor demands for both longshore
employees and mechanics has been described. M&R mechanics also experience additional
cycles or spikes of work duties: some predictable some by chance. Thus for example, seasonal
cycles may change the number of refrigerated containers in use: exported seasonal fruits,
imported Alaska frozen seafood, at a terminal with concomitant increase in mechanic work
hours necessary to handle the maintenance and repair of the refrigerated containers and power
sets in use. Changes in product demand may change the volume and type of freight with
implications for maintenance and repair at the terminal. These and other circumstances – not
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least a tradition of contractors quickly dealing with the terminals M&R needs quickly – produce a
less than stable or predictable workload for the M&R mechanic workforce.
3. The History of the Respondent Employers
a. The Pacific Crane Maintenance Company (PCMC)
In 1990 two individuals, Messrs. Philip McLeod, PCMC’s Chief Executive Officer, and
Joe Gregorio, Sr.,13 PCMC’s Chief Operating Officer, incorporated Pacific Crane Maintenance
Company, Inc. with the intention to contract marine terminal shipper maintenance and repair
work. Soon thereafter PCMC obtained a contract to do some of a shipping company’s Port of
Long Beach marine terminal-based equipment maintenance and repair. To fulfill its contractual
obligations it hired terminal-based M&R mechanics.
PCMC’s initial terminal-based mechanics were soon organized by the ILWU, and, in
1991, based on presentation of authorization cards, PCMC recognized the ILWU and soon
joined the Pacific Maritime Association and adopted the Coastwide PMA – ILWU agreement
known as the Pacific Coast Longshore Contract Document or PCLCD which covered among
others both longshore employees and marine terminal M&R mechanics. In mid-1992, PCMC
acquired an additional contract from a second shipper to do some of the shippers Port of Los
Angeles terminal-based equipment maintenance and repair work. The work was very similar to
the work earlier won and the two terminals, while at different Southern California Ports, were
within commute distance.14
From the onset of performing work at multiple terminals, PCMC did not maintain
separate personnel inflexibly assigned to particular terminals but rather treated its M&R
mechanics as flexible in their place of work and transferred full-time or steady mechanics and
supervisory staff as needed between its terminal operations, and also utilized the ILWU hiring
hall to augment its full-time or steady M&R complement with dispatched or hall mechanics for
short period as necessary to meet short term staffing needs.
The transfers of PCMC’s full-time M&R employment staff took place by assignment and
were not voluntary or employee initiated. Mr. McLeod testified PCMC from its inception used a
“Lean Staff Model”15 which involved minimum staffing of full time or “steady” staff on individual
terminals. Such a permanent or steady full-time employee complement was deliberately kept to
a limited size just sufficient to undertake non-peak or bottom cycle M&R mechanic work loads.
As was inevitable and expected, work demands would exceed the capacity of the lean staff at
specific terminals. As necessary the terminal workforce would, through temporary inter-terminal
transfers of PCMC mechanics and augmented by hall mechanics obtained through hiring hall

13 The two remained its owners and corporate officers through the events in controversy
herein.
14 The California ports of Long Beach and Los Angeles are physically close and in many
ways are treated as a single workplace. The situation is similar in the Washington ports of
Seattle and Tacoma.
15 Much of the business model testimony was from Messrs. McLeod and Gregorio, Sr. The
Charging Party Machinists took umbrage at what it believed and argued, on brief, was PCMC’s
self-characterized, post-hoc, recently designed, litigation-based, “lean” model. PCMC’s 2002
correspondence with the PMA makes it clear however, that in fact from its beginnings, PCMC
intended its operations to utilize both mechanic bargaining unit inter-terminal transfers and short
term hiring hall dispatch mechanic unit workforce augmentation.
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dispatch calls. Thus, the workforce could be expanded as necessary to fulfill temporary
business spikes at one terminal or another or during cyclical or other business peaks in
workforce needs and could then be quickly contracted when the demand reduced. Thus, by
utilizing the hiring hall dispatch system and inter-terminal transfers as needed, PCMC could
maintain a smaller permanent or “steady” unit complement which was sufficient for slower
periods and expand rapidly, if temporarily, at any necessary location when the press of business
required it. Mr. McLeod testified that this staffing model and its great flexibility was efficient and
kept labor costs to a minimum – allowing more competitive bidding for the work.
Over the years the business prospered. PCMC took on more work under contract with
shippers to do equipment maintenance and repair at marine terminals at the Ports of Los
Angeles and Long Beach. In some cases the M&R mechanic work on stationary cranes was
included in the contracts awarded to PCMC. In other cases at other terminals, stationary cranes
were handled by other providers whose crane mechanic employees may or may not have been
represented by the ILWU. As the West Coast longshore industry terminals and business
volumes grew, the maintenance and repair work for shippers also grew and PCMC grew as
well. PCMC grew both by acquiring work at new or expanded terminals and by acquiring
existing work done by others. In some cases PCMC took over work done by the contracting
shippers own employees and in other cases replaced contractors who, like PCMC, did the work
under contract for a terminal shipper.
On various occasions the work PCMC undertook had been previously done by
employees represented by the IAM and on other occasions by the ILWU. The PCMC regularly
offered employment to some – although not all – of the mechanics of the previous service
provider at the terminals where the work was to be done. Without exception, however, when
new work was obtained by PCMC and new employees were hired to do the work, recognition
was extended to the ILWU respecting the employees doing that work and the PMC-ILWU
Coastwide agreement was applied to the new mechanic employees as it was to all PCMC’s
mechanics.
PCMC at all relevant times has provided marine terminal equipment maintenance and
repair services to terminal operators and shippers. It has continuously maintained its
membership in the Pacific Maritime Association and, through that association, its contractual
relationship with the ILWU respecting all its maintenance and repair mechanics. Over the years
it expanded from the Southern California ports into Northern California and into the Puget
Sound. The volume of its business and its employee complement grew. A significant portion of
its business was done for the Maersk shipping line.
b. The Pacific Marine Maintenance Company (PMMC)
In 1999 Maersk was in discussions with Sealand, a marine shipper and an early user of
containerized shipping on the West Coast, concerning possible acquisition of assets and
operations at Sealand’s West Coast terminals located in Long Beach, Oakland and Tacoma.16
Sealand had since the 1960s recognized the IAM as the exclusive representative of its
employees in a single multi-terminal unit of mechanics engaged in M&R work at these three
terminals. Apparently as part of the general discussions, PCMC was informed by Maersk of the
possibility of Maersk contracting out the M&R work at these terminals should it acquire the
Sealand West Coast operations.

16 Before 1984 the Puget Sound, Washington Sealand terminal was located in Seattle.
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It was apparently also required as part of the Sealand acquisition by Sealand that any
and all M&R work acquired by Maersk was to be done by IAM-represented employees.
Mr. McLeod testified without contradiction that, in order to “have an entity to respond to a
proposal to do maintenance work” PCMC and Marine Terminals Corporation, a separate M&R
contractor, created a partnership, Respondent PMMC.17 In due course bid on and was
awarded the Maersk contract for M&R work at the former Sealand terminals,18 hired the former
mechanics, recognized the IAM as the unit’s representative and thereafter undertook the M&R
work. At all times thereafter to the events in controversy, PMMC and the IAM had a single
employer contract covering the unit employees doing this work. There was no pattern or
practice of interchange between PMMC unit employees at different ports or between other
employers’ IAM-represented M&R mechanics and PMMC’s mechanics.
C. The Events19
In the beginning of 2002, PMMC was performing work for Maersk at its Long Beach,
Oakland and Tacoma operations, which had previously been Sealand. PMMC was working
under the previously assumed Sealand-IAM collective bargaining agreement which was to
expire on March 31, 2002. PCMC was also performing work for Maersk at a separate location it
had long maintained at the Port of Los Angeles at Pier J. PCMC was performing that work with
mechanics represented by the ILWU, in the coastwide unit and under the PMA-ILWU Coastwide
agreement.
PMMC and the IAM prepared for the 2002 contract negotiations in early 2002 aware that
Maersk was involved in preparations to consolidate its Southern California operations at a new
Port of Los Angeles terminal: Pier 400 and that the consolidation would involve moving and
consolidating work that was at that time being done both by mechanics employed by PCMC
represented by the ILWU and PMMC mechanics represented by the IAM.
At the first bargaining session held on March 5, 2002, with the IAM, PMMC’s lead
negotiator, Captain John McNeill, confirmed the planned Maersk consolidation in Southern
California and informed the IAM that PMMC had not been awarded a Maersk contract to do any
work at the consolidated terminal. He stated further that Maersk had also put its continuing
contract with PMMC for its remaining work in Tacoma and Oakland on a month-to-month basis.

17 There might have been contract/labor law issues arising from a M&R contractor signatory
to the PMA-ILWU agreement recognizing the IAM as representative of a unit of M&R mechanics
doing terminal based work at West Coast terminals. See e.g. Pacific Maritime Association, 256
NLRB 769 (1981). Such IAM represented mechanics work being done by a contractor with no
representational relationship with non-IAM labor organizations would likely have presented
fewer ancillary difficulties.
18 Sealand’s terminals had a shipping company tenant, Horizon Lines (formerly CSX), who
essentially carried on a “me-to” relationship with the master shipper at the terminals and who
also contracted with PMMC. Horizon represented approximately 20% of the M&R work involved
on Maersk terminals done by PMMC at relevant times. Other terminals on the west coast and
mentioned herein may also have had primary/control shippers and second, smaller shipper
tenants/passive shippers. These essentially passive me-to tenant shippers did not have
independent roles in the circumstances described herein and generally have been omitted from
the presentation of events where not independently relevant.
19 Where not specifically noted, the evidence relied on in this portion of the decision is from
uncontested credible testimony or from uncontested credible documentary evidence. Certain
specific events and circumstances are discussed in detail later in the decision.
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Negotiations for the new agreement extended to over a dozen bargaining sessions in
March and April 2002 and included a brief extension of the existing contract and a strike vote of
unit employees. The final contract was agreed upon at the final May 1, 2002, session and was
ratified by employees and went into effect in April. By its terms it was effective from
April 1, 2002 to March 31, 2005.
Maersk consolidated its Southern California terminal operations in two stages in
September and October 2002, initially transferring its Pier J operations to its new terminal Pier
400 in Los Angeles and following with the transfer of its’ Long Beach Sealand terminal
operations. The new Pier J operations consolidated the Maersk shipping and M&R mechanic
work into a single terminal. The mechanic work at Pier J was given by Maersk to PCMC. The
mechanics who had worked at the pre-consolidation terminals – both IAM and ILWU
represented units - were melded into a single force at the pier and were included in the ILWU-
PMA coastwide unit and covered by the ILWU-PMA coastwide contract. All PMMC M&R
mechanics who were laid off by PMMC when the Long Beach operations were discontinued
were employed by PCMC. The ratio of PCMC mechanic employees transferred to the new
operation to the PMMC mechanic employees transferred was about three to one. No grievances
were filed under any contract: ILWU or IAM. No unfair labor practice charges were filed by any
party.
In December 2003, Maersk awarded PCMC the M&R crane mechanic contract for the
large stationary container cranes at the Maersk terminal at the Port of Oakland.20 At the time
PMMC was doing the non-crane M&R mechanic work at the terminal. The crane mechanic
work areas were separately located at the terminal and the two types of mechanics work: crane
and non-crane on the dock had had a history of separate bargaining units and representation by
separate labor organizations. No interchange occurred between the PCMC ILWU crane and
PMMC IAM non crane operations at the terminal.
PCMC, in late 2004, obtained a Maersk contract for all its crane M&R work at its Port of
Tacoma terminal and at about the same time also obtained crane and non-crane M&R work for
Evergreen21 at the Pierce County terminal in the Port of Tacoma (hereinafter sometimes
referred to as the Evergreen terminal). The former Evergreen non-crane work at the old
terminal had been done by IAM represented employees of Tacoma-Seattle Trailer Repair
(TSTR) whose bid on the work at the new terminal was not accepted.
Seemingly at all times, but specifically by early 2004, Maersk was rigorously cost
conscious respecting its M&R mechanic contracts and constantly made PMMC’s agents and
principals aware that it wished the lowest possible contract cost and was not adverse to seeking
a new contractor or bringing the work in house to obtain savings. Despite this apparent
unhappiness, Maersk negotiated the PMMC contract labor rate in April 2004 at the scheduled
contract opening, but kept up complaints respecting costs.
A separate employer, TSTR, employed repair mechanics performing contract repair
services off dock in Tacoma under a contract with the IAM. Mr. Darrin Del Conte, then PMMC

20 PCMC has obtained an M&R crane contract from a separate employer at a separate
Oakland terminal, Hinjin, a year or two earlier. The crane work awarded at the Oakland Maersk
terminal has previously been done by a separate entity: SSA – Stevedoring Service of America.
21 PCMC had for some years performed work for Evergreen at a terminal or terminals at the
Port of Los Angeles.
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Vice President, testified that in mid-September 2004 he telephoned Mr. James Beno, the
Directing Business Representative of District Lodge 190. Mr. Del Conte testified:
It was a phone conversation and it started off about there was some work that
was being taken away from our Maersk facility up in Tacoma, and it was being
done by an off dock vendor called TSTR, and I was upset that they were letting
that work go off dock, because I felt that was work that our mechanics should
have been doing, and clearly could have been doing. So, I brought that to his
attention but then also in the context of the meeting, I told him that I wanted the
same contract, the TSTR contract, otherwise I indicated to him that I felt that
we[‘]d be out of business come March, if I didn’t t get that contract.
Q What did Mr. Beno say?
A He kind of chuckled.
Q You didn’t ask for another meeting with him to renegotiate the contract, did
you?
A Not at the time I did not.
Mr. Beno did not recall the conversation nor its specifics or context but did not deny the
conversation took place.
IAM Area Director Donald Crosatto testified he had received a phone call from Del Conte
regarding a change in an arbitration date. After the date was changed, Del Conte told Crosatto
that he had looked at the TSTR contract with the IAM which he viewed as more favorable to
TSTR than the PMMC contract was to PMMC and asked Crosatto why PMMC did not receive
the same favorable terms. Del Conte said that PMMC would be more competitive if it had a
deal like TSTR. Crosatto testified he told Del Conte that TSTR’s contract applied only to the
Puget Sound and that TSTR was primarily an off-dock employer doing off-dock work. Crosatto
told Del Conte that he regarded PMMC’s competition as on dock stevedoring contractors and
that PMMC’s contract was very competitive with those entities. Mr. Del Conte did not testify
respecting this conversation.
Mr. Gregorio Sr. testified that in late 2004 he was telephoned by Maersk representatives
in a conference call asking if PCMC could perform the PMMC work more cheaply than PMMC
was performing it. He testified that the Maersk representatives noted the PMMC-IAM
agreement was going to expire in 2005 and they expected a 12% raise in IAM labor costs, but
that the PCMC/PMA-ILWU contract did not expire until 2008. Gregorio informed the Maersk
agents that PCMC could perform the work at its then current contract rate with Maersk. No other
witness testified regarding this conversation.
Mr. Del Conte testified that in the same period he, on behalf of PMMC, received a
telephone conference call from Maersk agents regarding his best bid on PMMC’s current work
for Maersk. Del Conte testified that, in this conversation and others at about this time, he told
Maersk that PMMC could not do the work for less than its current contract rates with any labor
increases incurred under a new IAM contract also being included as per industry practice.
An all-day meeting was held at Maersk’s offices in Charlotte, North Carolina on
January 6, 2005, between various agents of Maersk and agents and principals of PCMC and
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PMMC. The meeting opened with the announcement by Maersk that they expected to reduce
their costs by transferring the Tacoma and Oakland work to PCMC and the ILWU workforce.
Mr. Gregorio Sr. testified that Darrin Del Conte and McLeod spoke at the meeting on
behalf of PMMC:
Darrin Del Conte was trying to convince them to, you know, leave the work with
Pacific Marine.
Q What did he say?
A He said that he had tried to get a concession from the IAM, a cheaper
contract, and that the IAM pretty much laughed at him. And that he wasn’t sure
where he could go from here, but, he wanted to retain the business. Steve
McLeod then spoke up and said whatever the increase is in the IAM contract in
2005 March, will only pass through the increase, we won’t put a burden on the
rate increase. So, if it’s two dollars, you’ll just pay the two dollars, but that’s the
best we could do. That he looked internally inside the company and they couldn’t
come up with any cheaper way to do the business than the rate they were
currently charging them. And that they couldn’t get any concessions out of the
IAM at this time, and couldn’t guarantee that the cost was not going to increase
in March of 05.
This testimony was not corroborated by other meeting participants who testified.
The meeting proceeded to an exchange in which PCMC and PMMC agents talked about
relative costs and efficiencies of operation and the uncertainty of the rates that would be
negotiated in the upcoming IAM negotiations. No suggestion was offered that the IAM might
offer concessions which would significantly change PMMC’s estimated operating costs. Maersk
agents made it clear that they wished to avoid any labor difficulties, but they preferred the ILWU
contract to the IAM and expected costs to decrease as a result of a contract change. The
remainder of the meeting involved discussing the specifics of the transition from a PMMC/IAM to
PCMC/ILWU workforce as well as an allocation of costs between the parties for expenses
incurred as part of the noted transition and the scope of the work. These details and additional
details of the new contract for this work between Maersk and PCMC were discussed. Soon
after the meeting adjourned, Maersk issued an e-mail to the meeting participants
communicating its decision to terminate the PMMC contract and transfer the work to PCMC. In
due course a transition plan was put in place.
PMMC’s Del Conte and Terry Murphy testified respecting a meeting held in Oakland on
January 14, 2005, with IAM representatives Beno and Crosatto. Del Conte testified:
A [The meeting] was to resolve some outstanding grievances and in that
meeting also I once again asked for the TSTR contract.
Q What did [Beno] say when you asked for the TSTR contract?
A A similar response, a chuckle.
Q That was the entirety of his response to that subject?
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A. It was to my best recollection, it was kind of a chuckle kind of scoffed at the
notion that we’d ask for a reduced labor rate like that.
Mr. Del Conte testified he did not mention to Beno and Crosatto the January 6 meeting held with
Maersk or what was said at that meeting. Mr. Murphy corroborated Del Conte respecting the
meeting. Del Conte testified that he did not tell the Machinists of PMMC’s loss of the contract or
PCMC’s gain of the Maersk Tacoma and Oakland work considering it a confidential matter as of
that time.
Messrs. Beno and Crosatto denied that any meeting such as that described by Del
Conte and Murphy ever took place or that a telephone call in lieu of such a meeting ever
occurred. Substantial documentary evidence was introduced by the parties establishing that Del
Conte and Murphy were in fact in Oakland on January 14 and also suggesting that neither Beno
nor Crosatto had any scheduled meeting with Del Conte and Murphy on that date or concerning
that subject.
On January 25, 2005, Maersk officially terminated the PMMC contract effective the end
of March 2005. The following day PMMC Vice President Terry Murphy sent a letter to the
various IAM representatives which PMMC also posted at the PMMC Maersk work sites. The
letter announced PMMC’s loss of the Maersk/Horizon work and estimated the permanent lay off
of all unit employees as occurring on or about April 1, 2005. The letter further asserted:
“Please contact the undersigned regarding any questions or any issues you want to discuss.”
The letter also noted it was attaching a “memorandum from the new contractor explaining how
our employees may apply for employment with them.” The attached memorandum was from
PCMC and directed to PMMC mechanics in Oakland and Tacoma. It announced that PCMC
had been awarded the work to begin on or about April 1, 2005 and that PCMC was seeking
“well qualified applicants to join our existing work force in each of these ports, where we already
do this kind of work for other companies at other terminals and hope you will apply with us.”
The memorandum described the application procedures and set a February 3, 2005, deadline
for receipt of applications.
By letter dated February 4, 2005, James Beno wrote Darrin Del Conte an answering
letter acknowledging Del Conte’s January 26 letter. It sought immediate negotiations over the
effects of the closures on unit members and demanded to negotiate over the decision to stop
work. The letter further requested a very extensive list of information directed to a complete and
detailed disclosure of the business and financial relationship between PCMC and PMMC.
On February 17, 2005, Terry Murphy responded to Beno's letter of February 4 with
copies to other IAM agents: Messrs. Hursey, Crosatto and Kucera. The letter agreed to
negotiate over the effects of the closures, asserted that Maersk not PMMC made the decision to
use another contractor, and denied any single employer relationship existed between PCMC
and PMMC without answering the detailed questions propounded by Beno in his earlier letter.
PCMC determined that it would fulfill its Tacoma and Oakland M&R staffing needs from
PMMC applicants. On March 1, 2005, PMMC sent employment offer letters to 75-80 PMMC
unit members from the two sites. The jobs on offer were specifically identified as included in the
ILWU represented bargaining unit and covered by the PCMC/PMA-ILWU coastwide collective
bargaining agreement. The letters specified the positions offered giving the recipients to
March 7, 2005, to accept the employment offers. On March 9, 2005, PCMC sent ILWU wage
schedules and other employment information to those who had accepted the job offers. It also
initiated PMA new hire screening, physical fitness and agility/strength examinations for those
who accepted the employment offers.
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On March 10, 2005, Mr. Beno sent PCMC a letter demanding recognition as the
representative of its Maersk based Tacoma and Oakland M&R mechanics. He also did so on
several subsequent occasions including March 18 and 23, 2005. PCMC refused to recognize
the IAM by letter dated March 25, 2005, indicating it had recognized the ILWU as the
employees’ representative and that they were covered under the ILWU/PMA coastwide
contract.
The then current PMMC-IAM contract, inter alia, contained the following two provisions:
Article 6 – Visitation
Authorized Representatives of the [IAM] shall have access to the [PMMC’s]
establishments during working hours for the purpose of adjusting disputes,
investigating working conditions, collection of dues, and ascertaining that the
Agreement is being adhered to; provided, however, there is no interruption of
the firm’s working schedule.
Article 10 – Bulletin Boards
The Employer agrees to furnish and maintain a bulletin board on which the [IAM]
will be allowed suitable space.”
The Tacoma unit employees of PMMC worked inside a fenced secure area at the
terminal which had guard controlled access. IAM Directing Business Representative Don
Hursey, in the period before February 2005, regularly visited the unit members on site gaining
access to the facility by presenting his driver’s license to the guard, indicating he was present on
official business, and being immediately waived through. Mr. Hursey testified he had never been
restricted to particular times of day or days of the week and had never announced a visit in
advance or sought permission to visit the site.
Mr. Hursey testified that on January 27, 2005, he arrived at the Tacoma site early in the
morning in response to telephone calls from the job steward seeking his presence. He was
granted access in the usual manner and met with various unit employees who were very
concerned about their future given that they had received notification that they were to be laid
off by PMMC but might be able to obtain employment from PCMC. Given the strong interest of
the employees he returned – in the same unrestricted manner as earlier - at the lunch period
and held lunchroom meetings with unit members. As part of the meetings, unit employees
reported ILWU solicitations had occurred on site. Hursey supplied the unit members blank IAM
authorization cards and he solicited and collected signed IAM authorization cards.
Hursey next drove to the site on February 15, 2005, at about 3:30 p.m. He testified he
attempted to pass through the access gate to visit unit members but was turned down by the
gate guard: “I showed him my ID, told him who I was, I wanted to go see the guys and he
looked at a list and said [‘]you’re not allowed on the premises[‘].” After unsuccessfully arguing
with the guard, Hursey used his cell phone. He testified:
I called Terry Murphy at his office at the facility and he wasn’t there. So, I got a
hold of [PMMC Tacoma Terminal Manager] Lyle Kagey and had an argument
with Lyle that, you know, I had every right to be in there, what’s going on, how
come you’re not allowing me on the terminal?
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Q What did Lyle said?
A Lyle said that I was disruption and was not allowed on the terminal.
In high dudgeon, Hursey drove to his office where a short time later he received a telephone call
from Terry Murphy. Hersey testified Murphy told him:
That there must have been some type of a misunderstanding, that there didn’t
seem to be a problem. He just asked me if I would try to contact him ahead of
time before I came down there. I said I didn’t have any problem with that…
Sometime in the next few days Hursey received a letter from Murphy dated
February 17, 2005, with the following text:
On Tuesday, 2/15/05, terminal security at APM Terminals in Tacoma denied you
access to the PMMC work site portion of the terminal.
I called you at your office shortly after hearing of the situation and asked that you
simply call the PMMC manager in advance of your visit, stating the time and
purpose of your visit, which you agreed you would do for future visits to the
worksite. I understood you will come at employee lunch time to hold eliminate
any disruption to operations.
With all that is currently happening, it is imperative that disruption in meeting our
customer’s needs be minimized as much as possible.
Hursey replied to Murphy by letter of February 23, 2005, with the following text:
I received your letter today dated February 17, 2005, wherein you have asked
me to simply advise the manager of my visit in advance and to list the nature of
my visit.
When you contacted me shortly after the incident on February 15th, it seemed
reasonable to notify you in the future of my intent to visit my membership. This is
not uncommon in many of my contracts.
After reviewing the current PMMC contract, I have no requirements to notify you
in advance or to advise you of the intent of my visit. I still do not have a problem
being courteous in letting you know of my intent to visit your facility, but in no way
am I giving up my rights per the labor agreement nor am I limiting my access to
anything other than the established past practice that has been recognized by
both parties today.
Let this serve as notice that I do not intend to change my rights of visitation.
On March 11, 2005, Hursey heard reports that the ILWU steward from the PMMC
Tacoma jobsite and ILWU union representatives were on site soliciting ILWU membership
authorization cards from the PMMC mechanics. At the conclusion of an unrelated meeting in
the morning, Hursey drove to the jobsite arriving at about 11 a.m. Arriving at the guard shack
and presenting his identification, Hursey was told by the guard, in his memory: “You know
you’re not allowed here.”
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Following some argument, Hursey called the PMMC supervisor, Lyle Kagey. Hursey
testified:
I called Lyle and say what’s going on? I’ve got every right to be in here, why are
you not letting me in there? And he said that you can’t come in.
Q Did he tell you why?
A Yeah. He said it was just orders. He told me that -– first he told me that I
didn’t give them advance notice. Then he said that was his orders.
Hursey was not allowed entrance, left the site, and testified he did not thereafter attempt to
enter the facility. The IAM’s Site Chief Steward Dennis Wolff’s calendar, however, indicated
Hursey did in fact visit the facility again later that month.
At relevant times the PMMC area at Maersk’s Oakland terminal had one bulletin board, a
corkboard, and a glass wall outside the foremen’s office that was for IAM use. Union materials
had, at all times before the events in issue, regularly been posted on each surface by unit
members and shop stewards without difficulty or incident. On March 10, 2005, the IAM sent by
facsimile transmission to the parts room at the site a copy of Beno’s letter to PCMC demanding
recognition as the bargaining representative of its Oakland M&R mechanics. The letter was
posted by the IAM on both bulletin locations. On the same day, without notifying the IAM, PCMC
President Del Conte directed the removal of the postings under the theory that the matters
concerned PCMC and not PMMC. The IAM site Shop Steward, Randy Castillo, testified that he
was told by a PMMC agent, by way of explanation regarding the removal of the posted
document, that it had been removed at the direction of Del Conte, that it did not concern PMMC
but rather PCMC and, if the IAM had a problem with its removal, to call Del Conte.
Following an exchange of scheduling letters, bargaining took place between PMMC and
the IAM on March 15, 2005. The bargaining session encompassed discussions of PMMC’s
future business intentions, whether or not lower IAM/PMMC contract rates would have allowed
PMMC to retain Maersk’s custom with a better bid, and various other matters. The possible hire
of the 25 or so PMMC laid off employees not as yet hired by PCMC was also discussed.
Hursey testified he complained of having problems obtaining access to the PMMC
worksite in Tacoma and that he had filed unfair labor practice charges as a result. Del Conte
told him he would have to first telephone the jobsite and schedule an appointment if he wished
to enter the facility. At the meetings end, in Crosatto’s memory, Del Conte said to the IAM
representatives that if they would give PMMC the contract rates in the TSTR contract, PMMC
could still go back to Maersk and try to see if Maersk would accept the deal. Hursey recalled
that he took the remark as sarcastic and responded that the IAM would get back to Del Conte.
In the event, the IAM later considered the matter in house and decided not to respond to Del
Conte’s remarks.
On March 30, 2005, PMMC completed operations at the Maersk terminals in Tacoma
and Oakland and all its unit employees at those locations were laid off. On March 31, 2005,
PCMC commenced operations at the Maersk terminals in Tacoma and Oakland.22 Initially 79
PMMC unit employees reported as PCMC employees with 3 more reporting by April 6. Six of

22 A detailed recitation of the work performed by PMMC and the work done by PCMC is set
forth, infra.
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the former PMMC but now PCMC employees were placed at the Evergreen terminal in Tacoma
a few miles away from the Maersk terminal where PCMC also had an M&R mechanic contract.
At the same time 10 of the PCMC Evergreen based mechanics were transferred to Maersk’s
Tacoma terminal.
In August 2007, PCMC, LP purchased the business and assets of PCMC and continues
to operate the business of PCMC in basically unchanged form. Prior to the purchase PCMC, LP
was put on notice of PCMC’s potential liability in the instant cases. Further there is no dispute
that, if PCMC is found to be obligated to bargain with the IAM as of August 2007, PCMC, LP is a
successor to that obligation under NLRB v. Burns International Security Services, Inc., 406 U.S.
272 (1972), and a successor to PCMC under Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973).
D. Analysis and Conclusions
1. The Various Theories of Violations of the Act
a. What is not alleged or in issue
In considering the allegations of the complaints and the arguments of the parties
thereon, it is critical to keep in mind the separate theories of violations of the Act advanced and
argued by the government and, perhaps equally important, the theories of and violations of the
Act not alleged in the complaint and thus not before me for consideration.
Initially it is important to note that the complaints do not allege a violation of Section
8(a)(3) of the Act: only violations of Section 8(a)(1), (2) and (5) are alleged. Thus, the
Respondent Employers herein are not - either alone, in a joint effort, or on behalf of others as
their agent or agents – alleged to have discriminated against employees or job applicants
because of their union activities or affiliations. Such allegations were contained in the charges
underlying the complaints, but the General Counsel specifically declined to include those
allegations in the complaints underlying this case.
Second, the General Counsel does not allege in his complaints that the Respondents
PCMC and PMMC were at any time alter egos of one another, limiting the “relationship”
complaint allegation to the proposition – now a stipulated matter – that the two entities at
relevant times were a single employer. Again the underlying charges contained such “alter ego”
allegations but these allegations were not included in the complaints herein. The Board holds
that the term “alter ego” commonly describes a relationship where one entity ceases operations
and a second entity begins the same or similar operation to defeat union representation, See
e.g. Cadillac Asphalt Paving Co., 349 NLRB 6, 8 (2007). The Board also holds that a motive to
evade labor law obligations is an important factor to consider in determining alter ego status
even if not a required element. Park Maintenance, 348 NLRB 1373, n. 3 (2006).
The fact that these contentions are absent from the instant case essentially distinguishes
those Board cases in which the actions of an employer, or employers, acting as a single
employer, are designed to defeat or avoid union recognition or a union contract by undertaking
an overall strategy designed and intended to dislodge the union. Such cases explicitly find the
employer’s actions violate section 8(a)(1) and (3) of the Act thereby and the analysis of the
associated Section 8(a)(5) allegations in the same complaint take place in that context. In the
instant case, the government makes no contention that the actions of the Respondents is
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informed by union animus, but rather bases its theories of violation entirely on Section 8(a)(1)(2)
and (5) contentions.23
Further, although the Charging Party argues in part that there are two separate IAM
represented bargaining units: one involved at each of the two facilities, Tacoma and Oakland,
the General Counsel has consistently pled a single IAM/PMMC bargaining unit and the
IAM/PMMC contract also refers to a single bargaining unit including all PMMC locations. I find
the Charging Party is foreclosed by the General Counsel’s complaint and the government’s
position at trial from arguing to the contrary.
b. The Principal Bargaining Theories
The complaints allege two essentially independent theories to ascribe to the Respondent
Employers an obligation to recognize and bargain with the IAM respecting a unit of M&R
mechanics employed at the Maersk Tacoma and Oakland terminals on and after
March 31, 2005. The first theory is described in the General Counsel’s Reply Brief at 3:
[T]he central theory of the instant complaint [is] that a single employer may not
unilaterally lay off and rehire its own employees in furtherance of a plan to cast
off a collective bargaining relationship in order to acquire a different labor
contract with less expensive wages, benefits, and working conditions.
If this contention is correct, argues the General Counsel, then the IAM remains the bargaining
representative of a post layoff unit whether employed by PMMC or PCMC. The Charging Party
supports the General Counsel’s theory and the Respondent’s oppose it.
The second or alternate theory of the General Counsel and the Charging Party to
ascribe to the Respondent Employers an obligation to recognize and bargain with the IAM
respecting a unit of M&R mechanics at the Maersk Tacoma and Oakland terminals on and after
March 31, 2005, is that PMMC was a successor to PMMC under the Supreme Court’s decision
in NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), and was obligated
to recognize the IAM as the representative of the continuing unit of M&R mechanics initially
employed by PMMC and thereafter by PCMC at the Maersk terminals in Oakland and Tacoma.
The Charging Party supports the General Counsel’s theory and the Respondents oppose this
theory as well.
Either of the two theories, if it successfully obligates the Respondent Employers to
recognize the IAM as the representative of a unit of M&R mechanics employed by PCMC at the
Maersk terminals in Oakland and Tacoma, it also sustains the allegations against Respondent
ILWU that it accepted recognition from the Respondent PCMC as the representative of unit
employees and applied the terms and conditions of a pre-existing collective bargaining
agreement with PCMC to unit employees, including the contract’s union-security clause, at a
time when the ILWU did not properly represent unit employees.

23 Prohibited anti-union discrimination may occur against union activity or representation
generally or against activities or representation by a particular labor organization or labor
organizations.
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c. The Separate Contract Workplace Access Denial Allegations
Finally as separate allegations of Section 8(a)(1) and (5) violations of the Act, the
complaints allege that Respondent PMMC improperly unilaterally discontinued or fatally limited
and hampered its provision of contractually-established access and bulletin board posting rights
to the IAM at a time when PMMC still recognized the IAM as the representative of its M&R
contract employees and the IAM contract was in effect in violation of Section 8(a)(5) the Act.
The Respondent Employers dispute these allegations.
d. The Allegations Against the Respondent ILWU
The allegations of the complaint against the Respondent ILWU allege that the ILWU
accepted recognition from the Respondent PCMC as the representative of PMMC’s former
employees as part of the ILWU/PMA Coastwide unit of employees and applied the terms and
conditions of the coastwide ILWU/PMA collective bargaining agreement, including the contract’s
union-security clause, to the PMMC former unit employees: all at a time when the ILWU did not
represent an uncoerced majority of those former PMMC employees This conduct is alleged in
the complaint to violate Sections 8(b)(1)(A) and (2) of the Act.
There is no dispute that the Respondent ILWU accepted recognition from the
Respondent PCMC as the representative of unit employees and applied the terms and
conditions of a pre-existing collective bargaining agreement with PCMC as a member of the
PMA to unit employees including the contract’s union-security clause. As noted supra, the
essential issue on which the ILWU allegations turn is that which is also in issue respecting the
Respondent Employers: under Board law, were the Respondent Employers obligated to
recognize and bargain with the IAM respecting a unit of M&R mechanics at the Maersk
terminals in Oakland and Tacoma on and after March 31, 2005? If there was no such
obligation, recognition of the ILWU was proper and the relevant complaint allegations are
without merit. If the former PMMC unit remained viable into those employees’ PCMC
employment a Burns successorship bargaining obligation would attach and the employees in
that continuing unit would at all times have been represented by the IAM. If this were true, the
ILWU’s conduct in accepting recognition as these employees representative and applying the
contract and its union-security provisions to the employees was improper and violative of
Sections 8(b)(1)(A) and (2) of the Act.
2. The General Counsel’s Theory that the Respondent Employers violated Section 8(a)(1) and
(5) of the Act in terminating PMMC’s unit employees on or about March 30, 2005, by failing
to bargain with the IAM respecting that unit of employees, and by withdrawing recognition
from the IAM as the representative of those employees.
There is no dispute that the IAM represented PMMC’s Maersk-based Tacoma and
Oakland M&R mechanics at least till March 30, 2005 under an IAM/PMMC contract due to
expire by its terms on March 31, 2005. There is also no dispute that Maersk, ever cost
conscious and anxious to obtain the best possible terms from its sub-contractors, announced to
PMMC and PCMC, as set forth in greater detail supra, that it was soliciting bids from each for a
M&R contract to replace that then held by PMMC. The counsel for the General Counsel
proceeds from this point with her theory:
[C]ounsel for the General Counsel concedes that there is no obligation on the
part of Respondent Employer to have prevented Maersk’s decision to seek lower
labor rates. However, Respondent-Employer is still responsible for the actions it
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took and those it failed to take, in response to Maersk’s request for lower IAM
labor rates.24
The Respondent Employers emphasize that they did not decide to end PCMC’s contract
with Maersk: rather Maersk did. PCMC and PMMC had each bid for the reopened contract at its
previous contract rate. It was only when informed by Maersk, the Respondent Employers
argue, that the Maersk contract had been awarded to PCMC that PMMC, having no other
employment for unit employees, announced the unit employees would be laid off and, at the end
of the contract, in fact did lay them off. This was simply not a voluntary action by the
Respondent PMMC, but rather was a necessary reaction to Maersk’s refusal to extend the
PMMC contract for the work the unit was employed by PMMC to do.
The General Counsel alleges that when faced with the fact that Maersk desired lower
contract costs and was calling for a new bid on the contract and the further fact that PCMC was
also going to bid on the contract, Respondent PCMC had an obligation to notify the IAM of this
state of affairs and offer to bargain with the IAM to provide the IAM an opportunity to negotiate
contract concessions which would allow PMMC to place a more competitive bid with Maersk
respecting a new M&R contract to replace the existing contract held by PMMC to do the work.
In failing to notify the IAM of the situation and provide the IAM offer to bargain concessions, the
General Counsel argues, the Respondent PMMC violated Section 8(a)(5) of the Act when it
failed to notify the IAM or offer to bargain and rather simply rebid its current contract rate with
Maersk and lost the Maersk contract in consequence. In such a situation, argues the General
Counsel and the Charging Party, PMMC or the Respondent Employers could not terminate the
unit employees without violating Section 8(a)(5) of the Act.
The General Counsel with the concurrence of the Charging Party argues its theory is
supported by the line of Board cases following the lead decision, the Supreme Court’s holding in
Fiberboard Paper Products Corporation v. NLRB, 379 U.S. 203 (1964). In that seminal case the
Court held that an employer could not make a determination to subcontract out maintenance
operations done by the represented unit to subcontractors – with the consequence of laying off
the unit employees who had done the work heretofore - based on a desire to achieve lower
labor costs without notifying the representing union and providing it an opportunity to bargain
concessions which might achieve the lower labor costs the employer needed and preserve the
unit work for the represented employees. The Court held that a desire to reduce labor costs
was a matter peculiarly suitable for resolution within the collective bargaining framework and
that the Board could require employers to provide such notice and offer to bargain to unions
representing their employees if they were considering contracting out unit work in an effort to
lower labor costs. Employers who failed to make the required provisions could not properly lay
off their own employees in order to save labor costs.

24 The General Counsel’s Reply brief at 4.
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The Respondent Employers deny the validity under the cases of the General Counsel’s
theory and offer a myriad of defenses should the threshold theory of a Fiberboard violation be
sustained.25
a. Initial Consideration of PMMC’s Bargaining Obligation Absent Single Employer Status
The instant case presents a complicated confluence of various theories in an unusual
factual context which, for purpose of analysis, makes it initially useful to deconstruct the General
Counsels case against the Employers and consider its constituent parts.
Assuming for purposes of this initial analysis, that PMMC was a independent employer,
stranger to PCMC, and that no bargaining or contract defenses to a Fiberboard violation apply,
what if any bargaining obligation was raised by PMMC’s actions and omissions in response to
the Maersk rebid circumstances? Put another way, to what extent does a Fiberboard type
bargaining obligation arise under the posited facts? Since the government makes no contention
that Maersk’s actions or motives may be attributed to Respondents through some agency
theory, the action of PMMC at issue herein is its placing of a bid on the Maersk M&R contract
without notifying the IAM of the situation and providing it an opportunity to make concessions in
wages and benefits which would have allowed PMMA to make a more competitive bid on the
Maersk contract.
Putting the issue another way: Was PMMC making a bid on a contract to provide
mechanics work to Maersk which was the basis for employment of PMMC’s unit employees a
mandatory subject of bargaining under the Act as was found by the Court in Fiberboard with
regard to employer subcontracting? In my view a service providing enterprise or labor
contractor making a bid to perform labor services to a client is akin to a manufacturing employer
offering its products for sale at a given price to a customer. If this is a correct analogy, the
question may be put more broadly: Is an employers pricing of its products to its customers a
mandatory subject of bargaining? Must an employer inform its represented employees’ union,
when considering bidding on an important sales contract the loss of which could impact on the
bargaining unit, of the risks involved and provide the union with an opportunity to make
concessions that would allow the employer to offer its product at a more competitive price to its
clients or customers? And, if it fails to do so and because its price is not accepted, is it
impermissible to lay off employees no longer needed to manufacture the products or supply the
services which are now not being sold? No party cites post-Fiberboard cases on the subject,
but in my view the General Counsel’s Fiberboard argument must start with that fundamental
question.
Chief Justice Warren writing for the majority in Fiberboard concluded that “contracting
out” unit work was a mandatory subject of bargaining. Initially he noted that the subject was of
importance to unit employees and that their employment was clearly at stake. He noted further
at 379 U.S. 211-212:

25 These defenses include, inter alia: The complaints do not support the violations asserted,
that the Respondent Employers’ provided an opportunity to the IAM to bargain at relevant times
and the Union refused to do so, that the IAM waived any right to bargain by the terms of its
collective bargaining agreement and past bargaining history, that the violation is inconsistent
with the Courts decision in First National Maintenance Corporation v. NLRB, 452 U.S. 666
(1981), and that it is inconsistent with the Board’s decision in AG Communications Systems,
350 NLRB 168 (2007).
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The inclusion of "contracting out" within the statutory scope of collective
bargaining also seems well designed to effectuate the purposes of the National
Labor Relations Act. One of the primary purposes of the Act is to promote the
peaceful settlement of industrial disputes by subjecting labor-management
controversies to the mediatory influence of negotiation. The Act was framed with
an awareness that refusals to confer and negotiate had been one of the most
prolific causes of industrial strife.4 Labor Board v. Jones & Laughlin Steel Corp.,
30 U.S. 1, 42-43. To hold, as the Board has done, that contracting out is a
mandatory subject of collective bargaining would promote the fundamental
purpose of the Act by bringing a problem of vital concern to labor and
management within the framework established by Congress as most conducive
to industrial peace.
The conclusion that "contracting out" is a statutory subject of collective bargaining is
further reinforced by industrial practices in this country. While not determinative, it is
appropriate to look to industrial bargaining practices in appraising the propriety of
including a particular subject within the scope of mandatory bargaining.5 Labor Board v.
American Nat. Ins. Co., 343 U.S. 395, 408. Industrial experience is not only reflective of
the interests of labor and management in the subject matter but is also indicative of the
amenability of such subjects to the collective bargaining process. Experience illustrates
that contracting out in one form or another has been brought, widely and successfully,
within the collective bargaining framework.6 Provisions relating to contracting out exist in
numerous collective bargaining agreements,7 and "[c]ontracting out work is the basis of
many grievances; and that type of claim is grist in the mills of the arbitrators," United
Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 584.
________________________________________________________________________________
4 See declaration of policy set forth in 1 and 101 of the Labor-Management Relations Act, 1947,
61 Stat. 136, 29 U.S.C. 141, 151 (1958 ed.).
5 See Cox and Dunlop, Regulation of Collective Bargaining by the National Labor Relations
Board, 63 Harv. L. Rev. 389, 405-406 (1950).
6See Lunden, Subcontracting Clauses in Major Contracts, Pts. 1, 2, 84 Monthly Lab. Rev. 579,
715 (1961).
7A Department of Labor study analyzed 1,687 collective bargaining agreements, which applied to
approximately 7,500,000 workers (about one-half of the estimated work force covered by
collective bargaining agreements). Among the agreements studied, approximately one-fourth
(378) contained some form of a limitation on subcontracting. Lunden, supra, at 581.
Applying the Courts analysis to PMMC’s bidding on the Maersk contract, as in
Fiberboard, unit jobs were clearly at stake. Indeed since PMMC was in effect a “one customer”
employer at the time, essentially all unit jobs were at stake if PMMC’s bid was unacceptable to
Maersk. Unlike subcontracting however, employer pricing of its products does not meet the
further analysis undertaken by Chief Justice Warren in the quoted portion of Fiberboard above.
Thus, following the Courts analysis, bargaining about the employer’s pricing decisions has not
been a common or even infrequent industrial practice. Collective bargaining contracts do not
commonly address pricing and pricing is clearly not the grist in the mills of the arbitrators.
Beyond Fiberboard there have been no cases cited or found by me which hold that
employer pricing of its products or services for sale is a mandatory subject of bargaining under
the Act. I find therefore that there is no law which makes an employer’s pricing strategies a
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mandatory subject of bargaining however risky or consequential to the terms and conditions of
employment of that employer’s represented employees. I find that PMMC’s decision on how
much to bid on the Maersk contract in January 2005 was such a pricing decision and not a
Fiberboard-type subcontracting decision which is a mandatory subject of bargaining.
I find based on the above, on the paucity of authority offered, and on the basic notion in
Board jurisprudence that an administrative law judge must follow Board law rather than make
new law, that PMMC’s bidding on the Maersk contract in early 2005 was a pricing decision
which was not a mandatory subject of bargaining and therefore PMMC did not have to notify
and provide an opportunity to the IAM to bargain concerning concessions which had the
potential to effect PMMC’s bid26 on the Maersk contract and the likelihood that PMMC unit
employees would continue to do Maersk’s Oakland and Tacoma terminals M&R mechanics
work. Therefore I would find no PMMC failure to bargain.
That finding having been made, I further find there were no Board remedial
consequences to PMMC for its bidding on the Maersk contract without notification to and
provision of an offer to bargain to the IAM. More specially, PMMC’s loss of its contract and loss
of all the unit work the contract provided, when Maersk ended its relationship with PMMC, were
not a consequence of any failure to bargain with the IAM. Simply put: no wrong no remedy.
The consequence of this latter conclusion is that PMMC also had no duty to engage in
“decision” bargaining over the layoff of its unit employees at the conclusion of its Maersk
contract.27 PMMC was not in any legal sense herein liable for the Maersk decision to award the
contract to another. And, PMMC did not decide to lay off the unit employees: the loss of all unit
work commanded it. Further, with the loss of all unit employment and the consequential
termination of all unit employees, PMMC no longer employed employees represented by the
IAM and on that basis it permissibly withdrew recognition of the IAM.
All of the above being so in the artificial factual circumstances propounded, no violation
of the Act under the General Counsel’s initial theory of a violation would have occurred were
PCMC an independent employer with no connection to PCMC. And, it would then not be
necessary to consider the various Respondent asserted bargaining and contract defenses to the
General Counsel’s prima facia case alluded to above.

26 The Respondents argue a variant of this analysis: that the decisions taken by PMMC to
bid on the Maersk contract, if mandatory subjects of bargaining, were exempt because the
decisions went to PMMC’s relationship to its customer - a matter at that heart of its
management plan and not a matter of its evaluation of its own costs and hence not bargainable
under First National Maintenance Corporation v. NLRB, 452 U.S. 666 (1981). See discussion of
that doctrine, infra.
27 This analysis does not address effects bargaining which is not an issue herein. See the
General Counsel’s Statement of Position quoted, supra, at fn. 8.
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b. Does the Fact that PMMC and PCMC were single employers at all relevant times change the
analysis immediately above that PMMC had no obligation to offer to bargain with the IAM before
terminating its employees?28
1) An Important Narrowing of the Issue and Argument
For counsel for the General Counsel, the fact that PCMC and PMMC were single
employers at all relevant times virtually carries her theory of a violation. Thus, she argues at
page 7 of her Statement of Position:
As [a single employer, PMMC and PCMC] are but divisions of a single enterprise,
and PCMC, therefore was not entitled to abandon its bargaining relationship with
the [IAM]. Thus, as a single employer, PCMC was obligated to respond to the
[IAM’s] pre-March 31 bargaining requests and to bargain to impasse regarding all
changes in terms and conditions of employment, including layoffs, wages,
benefits, and temporary transfers to non-unit positions and temporary
assignments of non-bargaining unit employees to bargaining unit positions
[footnote omitted].
There is no doubt that the Board has regularly addressed a variety of settings and
circumstances where alter-ego employers and single employer entities engage in a course of
wrongful conduct which begins with one entity’s employees being represented by a union and
ends with the other entity engaging in essentially the same business without union
representation. It is not atypical for alter-ego employers to engage in a course of conduct
motivated by union animus and designed to end union representation while continuing – often in
disguised form – the initial business whose employees were originally represented but are not
thereafter. In such a setting where alter-ego relationships are established, or where union
animus motivates conduct and/or where disguised continuance may be a factor, the Board
regularly finds the continuing entity responsible to bargain with the representing union
concerning both the original discontinuance of operations and the renewal of operations.
Further, traditional remedies for actions in violations of 8(a)(1) and (3) of the Act also frequently
apply which includes reinstatement and, in some cases, restoration of the status quo ante.
The instant case, however, is not a case of the type noted. Thus, as discussed supra,
the Charging Party’s alter-ego contentions contained in the original charges involved herein
were rejected by the General Counsel and not included in the complaints. So, too, anti-union
or animus allegations of violations of Section 8(a)(1) and 8(a)(3) of the Act were also set forth in
the Charging Party’s charges but rejected by the General Counsel and not included in the
complaints. And, importantly, the General Counsel made it clear that the government was not

28 While necessary to fully understand the contentions of the parties, it is not fair to the
counsel for the General Counsel’s case or her theory of a violation to suggest she made the
arguments rejected above. Rather, in her pre-trial statement of position counsel for the General
Counsel explicitly indicated that her initial theory of a violation required or was dependent on a
finding of single employer status for PMMC and PCMC. Were that not to be found, she argued
in her statement of position, her alternative theory also referred to herein as the second theory
of a violation or “Burns” successor theory would apply. Indeed the complaint was originally
explicitly pled in “alternative theories of violation.” Following the mid-trial stipulation of the
parties that PCMC and PMMC were a single employer at all relevant times, the complaint was
amended to dispense with the alternate theory structure.
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alleging that Maersk’s conduct was alleged as a violation of the Act or that any Respondent
herein had actual or constructive control respecting or responsibility for Maersk’s conduct
herein.
And, further, again as discussed above, the actions of PCMC as a part of the single
employer in hiring the PMMC employees conditioned on their accepting employment as ILWU
represented employees working under the coastwide ILWU/PMA/PMMC contract, and as part of
that bargaining unit, and in refusing at all times to recognize or bargain with the IAM respecting
those employees, did not take place in the context of or as part of a course of conduct initiated
in wrongful failure to bargain by PMMC were it acting as a separate and independent employer
in laying off the IAM-represented employees.
The point of all the above is simply that the instant actions of the PCMC as part of the
single employer entity in the above described events are not per se violative of Section 8(a)(5)
of the Act as a follow-on to earlier wrongful action or as a continuing part of an illegally
motivated pattern and practice or scheme to defeat union representation. This being so, the
arguments marshaled by the General Counsel and the Charging Party in support of the
allegations at issue here must be considered only to the extent the cases cited and arguments
made do not rely on such precursor conduct and/or earlier findings of violations of Section
8(a)(1) and (3) of the Act.
Thus, for example, the General Counsel’s case citation in her initial post-hearing brief for
the proposition that the single employer, Respondent Employers herein, had an obligation to
retain the unit employees is Blumenfeld Theaters, 240 NLRB 206 (1979), a Board case that also
found that the employees discharged had been discharged in violation of Section 8(a)(3) of the
Act and were discharged as part of a course of anti-union conduct. Thus the Board noted:
The discharge of all bargaining unit employees and their replacement with
nonunion employees can only be viewed as part of its overall strategy to dislodge
the Unions from the theater. By discharging the bargaining unit employees on
September 6,1977, when the theater temporarily closed and by refusing to
reinstate them on September 28, when the theater reopened, BTC and the Roxie
Partnership violated Section 8(a)(3) and (1) of the Act. (240 NLRB 206, at 217).
2) The Single Employer Respondent Employers’ Obligation, if any, to Bargain about PMMC’s
Decision to Bid on the Maersk Contract and Decision to Terminate the PMMC unit employees
and Withdraw Recognition of the IAM
The General Counsel and the IAM argue that the Respondent Employers, as a single
employer, were obligated to bargain with the IAM before PMMC placed its bid on the Maersk
contract and, when, PMMC failed to do so; and when it lost the Maersk contract and PCMC won
the Maersk work, PMMC became obligated to bargain with the IAM respecting the transition of
employee employment from PMMC to PCMC and PCMC was obligated to recognize the IAM as
the representative of the former PMMC unit as a separate PCMC bargaining unit independent of
and apart from the ILWU/PMA/PCMC unit and contract.
Turning initially to the decision of PMMC as a single employer with PCMC to bid on the
Maersk contract, I find no reason to deviate from my earlier conclusion that PMMC simply did
not have an obligation under the Act to notify and bargain with the labor organization that
represented its employees concerning the pricing of its product to its client/customer. Whether
or not PMMC was a single employer with PCMC or a free-standing employer with no relation to
PCMC does not, in my view, make a represented employer’s decision to bid on a customers
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work – conceptually identical to setting the price on the employer’s product - more or less a
bargainable subject under the Act. Extending the analysis set forth above, I find no obligation
on the part of the single employer Respondents to notify and bargain with the IAM concerning
PCMC’s decision to bid on the Maersk contract.
When, in the event, Maersk cancelled its contract with PMMC and awarded the contract
to PCMC effective March 31, 2005. The question of whether or not the PCMC/PMMC single
employer could in effect end the PMMC/IAM bargaining relationship by terminating all PMMC
unit employees and immediately thereafter hiring the great bulk of those terminated employees
the following day as PCMC/ILWU-represented employees is a different issue. It is one not
addressed supra in considering PMMC’s bargaining obligation.
I have found there was no obligation to bargain with the IAM by either PMMC or PCMC
concerning their bids on the Maersk contract. There is no contention that the Respondent
Employers bear some responsibility for the award of the contract by Maersk to PCMC. Given
that the decision that PMMC would no longer be doing the Maersk work was taken by Maersk,
disregarding effects bargaining with the IAM which occurred, it is not apparent to me given the
fact that no earlier unfair labor practices had occurred, how PMMC had a non-effects bargaining
obligation respecting the terminations or had an obligation to continue to recognize the IAM as
the representative of the discharged employees.
The counsel for the General Counsel argues:
[R]espondent Employer could not lawfully withdraw recognition from the union
and advise it and its employees that in order for them to continue to perform
bargaining unit work, they would all have to be laid off, and rehired as
longshoremen. (General Counsel’s Reply Brief at 5).
In effect, the government treats the single employer as an undivided whole – or an alter ego - in
making its analysis and argument. On the facts of this case, however, with its independent
actions of PMMC and PCMC and the unchallenged, unalleged, actions of the independent party
Maersk influencing and causing important outcomes, the two Respondent Employers, even
though a single employer by stipulation, are not alter ego employers undertaking with common
purpose a coordinated if disguised anti-IAM course of conduct. Single employers are liable for
one another’s unfair labor practices in many cases, but they are not to be simply per se, without
more, considered a single entity for issues of continuity of bargaining obligations under the Act.
At this stage of the analysis, in evaluating the post-Maersk bid conduct of PCMC and
PMMC, I do not find the record supports a unitary analysis. I therefore will here consider, to at
least some extent, the General Counsel’s arguments against considering the two Respondent
Employers actions separately.
Thus, to the extent the General Counsel’s argument addresses PMMC’s actions, i.e. the
termination of employees as opposed to PMMC’s statements and actions respecting PMMC’s
employees I reject the argument and find the Act was not violated by PMMC. As set forth
above, PMMC had no obligation to notify and bargain with the IAM respecting it bid. When it
lost its bid, it lost all unit work effective March 31, 2005. This cessation of work was not as a
result of its wrong doing or as a result of its decision to abandon the work and, setting aside
effects bargaining not at issue here, created no bargaining obligation on PMMC’s part with
respect to the IAM concerning the bargaining unit. Further, and on the same basis, I find that
PMMC, on and after March 31, 2005, having neither unit employees nor evident prospects of
obtaining work to offer such employees, could terminate its employees effective
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March 31, 2005. See also the discussion of AG Communications Systems, 350 NLRB 168
(2007), infra.
In summary, I have found that PMMC did not violate the Act under the General
Counsel’s first theory of the Respondent Employers’ failure to meet their bargaining obligations
to the IAM. PMMC as one part of the single employer Respondents is therefore not liable for
any conduct alleged to have been undertaken by it and which was a violation of Section 8(a)(5)
under this theory. These findings, however, have addressed only the PMMC conduct, not the
PCMC’s subsequent conduct described supra which is also alleged by the complaints as a
violation of Section 8(a)(5) which are addressed immediately below.
What remains under the first theory of bargaining violation of the General Counsel is the
conduct of PCMC. Thus, before PMMC’s discontinuance of services for Maersk while the unit
was still employed on the job by PMMC, PCMC solicited the PMMC/IAM bargaining unit
members to apply for employment with PCMC doing Maersk’s M&R mechanics work at the
same locations with the explicit condition that the work done would be covered by the
PMA/PCMC-ILWU Coastwide contract and the unit employees would be represented by the
ILWU. Thereafter Respondent PCMC hired the great bulk of the PMMC bargaining unit, applied
the terms and conditions of the PMA/PCMC-ILWU Coastwide contract to those employees,
declined to recognize the IAM as representative of the Tacoma and Oakland mechanics and
recognized the ILWU as the representative of its new Oakland and Tacoma mechanic
employees as part of the PMA/PCMC-ILWU Coastwide multi-employer unit.
Under this first theory29 the Respondent Employers, because they are a single employer
and were at all relevant times, may not destroy the IAM’s representative status respecting the
M&R mechanics performing work at the Maersk terminals by the conceit or device of simply
having PMMC discharge the unit employees at the end of March 30, 2005, and then have
PCMC simply hire them for the same tasks to commence the following morning of
March 31, 2005.
The conduct at issue in this portion of the analysis may not be so easily dismissed as
conduct that could be considered as undertaken by one of the single employer Respondents
independently because the actions were in response to prior decisions and actions taken by
outsiders. Here the PMMC solicitation of PMMC’s employees to apply to PCMC and the
subsequent hire by PCMC of essentially all of the PMMC unit employees is a connected train of
events – a nexus that from the perspective of PCMC’s actions places the two Respondent
Employers actions in tandem and suggests the employment of the PMMC unit employees was
essentially continuous through the transition to PCMC employment. And from this continuation
of representation theory, the General further alleges that the various unilateral changes in unit
employees terms and conditions of employment put in place by PCMC30 in changing the PMMC
terms and conditions of employment applied to its unit employees to the ILWU contract terms
and conditions as PCMC employees as well as their refusal to recognize and bargain with the
IAM as representative of PCMC employees are additional violations of Section 8(a)(5) of the
Act.

29 The General Counsel’s alternative theory or second theory of finding the Respondent
PCMC bound to recognize and bargain with the IAM is the Burns successorship theory which
has been briefly described supra and will be discussed in grater detail separately below.
30 Elements of this argument are also discussed in the Burns successorship arguments
infra.
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On this point the parties discussed the Board’s recent case: AG Communications
Systems, 350 NLRB 168 (2007). The Respondent Employers rely heavily on AG
Communications for the proposition that single employers have no obligation to bargain with a
labor organization representing a bargaining unit consolidated with a bargaining unit of the other
member of the single employer concerning the decision to consolidate the units or to recognize
that union as representing any part of the consolidated unit. The General Counsel and the
Charging Party argue the case is distinguishable. AG Communications is recent law and worthy
of discussion both for itself and for its discussion of First National Maintenance Corporation v.
NLRB, 452 U.S. 666 (1981).
In AG Communications Systems, 350 NLRB 168 (2007), the Board found that two
entities AG Communications and Lucent Technologies were a single employer at relevant times.
The two entities made and implemented a decision to integrate a bargaining unit of AG
employees represented by an IBEW local into a bargaining unit of Lucent employees
represented by a CWA local treating the employees thereafter as represented by the CWA and
withdrawing recognition from the IBEW. The respondent in that case argued, and the Board
agreed, that its decision to purchase AG in its entirety, close AG operations and completely
integrate all aspects of the two companies, including the two bargaining units, was a core
entrepreneurial management decision exempt for bargaining under First National Maintenance
Corporation v. NLRB, 452 U.S. 666 (1981). The General Counsel and the Charging Party
distinguish the case based on the fact that the initial decision to consolidate the operations was
sheltered under First National Maintenance. It is necessary to first address that issue.
In First National Maintenance Corporation, the Court had reasoned that an employers
decision to shut down a part of its business represented a significant change in the scope and
direction of the enterprise which is akin to the decision of whether to be in business at all. The
Court held that bargaining over such management decisions should be required “only if the
benefit, for labor management relations and the collective bargaining process, outweighs the
burden placed on the conduct of the business.” 452 U.S. 666 at 679.
In disputing the application of First National Maintenance Corporation to the instant
case, the General Counsel and the Charging Party argue that the process involved herein:
Maersk’s unhappiness with the PMMC contract, Maersk’s initiation of a new bidding process,
PMMC’s loss of the Maersk contract and the award of the contract to PCMC, the discharge of
the PMMC unit employees, the hire by PCMC of those employees and the initiation of PCMC’s
operation – in their totality, deal with labor costs which could have been successfully addressed
in bargaining with the IAM. The Respondents argue that in the sequence of events in this case
the Respondents’ costs were not a matter of concern to the Respondent Employers and were
not a determining factor herein. Rather, the bid costs to Maersk under the contract to provide
Maersk mechanic services and nature of the relationship between Respondent Employer and
Maersk was involved. Thus, the Respondent Employers argue that the benefits of bargaining
were only indirectly related to the Maersk issues and could not and did not outweigh the
Respondent Employers right to make core entrepreneurial management decisions in dealing
with Maersk.
In resolving the First National Maintenance issue posed by the parties above, I accept
the arguments of the Respondents and reject the arguments of the General Counsel and the
Charging Party respecting the relationship of the Court’s meaning of “labor costs” to the bid
costs from Maersk’s perspective. I find there is an insufficient relationship between the “costs”
involved herein to apply the Court’s labor costs analysis to the instant facts. From the outset, as
described above respecting the application of the Fiberboard Paper Products Corporation v.
NLRB, 379 U.S. 203 (1964), decision to the instant case, I have viewed the series of events
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herein as involving far more attenuation of causal factors than a direct Respondent Employer
decision to make unilateral changes to unit employees’ terms and conditions of employment, or
their ultimate discharge because of labor costs which might have been resolved in bargaining
with the IAM. I agree with the Respondents that the importance of costs herein applied to
Maersk, the Respondent Employers’ customer, and only indirectly to the Respondent Employers
themselves. Second, the transcendent decision, the decision ending the business relationship
of PMMC with Maersk, was taken by Maersk, and – critically - not taken by the Respondent
Employers.
Having found that AC Communications, supra, and the instant case are similar in that
the initial decision to consolidate the units in AC Communications and the decision herein to
transfer the work from PMMC to PCMC were not violations of the Act, the attempts to
distinguish it fail and its holding is applicable to the instant case. That holding is that it is not per
se improper and a violation of the Act for respondents acting as single employers to consolidate
separately represented bargaining units and thereafter, as otherwise appropriate, continue or
withhold recognition of labor organizations under normal representation standards. I apply that
decision here to conclude that, given there was no decision bargaining obligation on the part of
PMMC to bid on the Maersk contract or to lay off its unit employees, there was no automatic
violation to be found in PCMC hiring those employees and – at least the Respondent Employers
prevail on the Burns contentions to be discussed below - withdrawing recognition of the IAM,
and recognizing the ILWU.
Thus, having considered the entire record and the positions of the parties, I find PMMC’s
decision to place a bid on the Maersk contract and the decision of PMMC to lay off its
employees when their work was lost did not in either case present a mandatory subject of
bargaining (effects bargaining not at issue or addressed herein). This finding is not changed by
the fact that PCMC and PMMC are a single employer. That being so, I further find that AG
Communications Systems, 350 NLRB 168 (2007), also applies to the instant case and that the
Respondent Employers did not have any per se or non-Burns statutory bargaining obligation to
recognize the IAM as the representative of the former PMMC unit employees when they were
hired as PCMC employees or to bargain with the IAM respecting their terms and conditions of
employment independent of the Burns successorship issues to be discussed supra. I find
therefore that the General Counsel’s allegations under her initial bargaining theory are without
merit and the complaint allegations dependent on that theory will be dismissed.
c. Summary and Conclusion respecting the General Counsel’s Theory that the Respondent
Employers were Obligated to Bargain about the Decisions to Bid on the Maersk Contract and
the Decision to Terminate the PMMC unit employees and end its relationship with the IAM31
As set forth in detail above, I have found that the Respondent Employers did not have an
obligation to notify and offer to bargain with the IAM concerning the bargaining unit of M&R
mechanics performing work at the Maersk terminals in Tacoma and Oakland in regards to any
element of the bidding process with Maersk in early 2005, or in making its decision to terminate
the PMMC unit employees or the decision to hire those same employees by PCMC. Therefore
there was no violation of the Act nor a remedy for a violation of the Act applicable to these
events save as may be independently found in the Burns analysis – “the General Counsel’s

31 The governments theory and associated complaint allegations predicated on or consistent
with a bargaining obligation arising from a successorship under NLRB v. Burns International
Security Services, Inc., 406 U.S. 272 (1972), are not addressed here but in a separate section
infra.
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alternate theory”. The General Counsel’s complaint allegations dependent on the validity of this
initial General Counsel theory of a bargaining violation shall therefore be dismissed. The
General Counsel’s complaint allegations which may be sustained by prevailing in her alternate
theory of a violation – a successorship relationship established under NLRB v. Burns
International Security Services, Inc., 406 U.S. 272 (1972), are not addressed here but in
separate sections infra.
3. The General Counsel’s Successorship Theory under NLRB v. Burns International Security
Services, Inc., 406 U.S. 272 (1972)
a. The Basic Law of Sucessorship and Accretion and the General Positions of the Parties
The Board has at all times since the issuance of the Court’s decision in NLRB v. Burns
International Security Services, Inc., 406 U.S. 272 (1972), applied its terms in what are now
known as Burns sucessorship cases. Burns held essentially that a succeeding employer, who
hires a predecessor’s unit employees in sufficient number to comprise a majority of unit
employees in the relevant unit in its new operations, when there is continuity in operations, is
bound to recognize the labor organization which represented the predecessor’s unit employees.
From the issuance of the initial complaint and the General Counsel’s submitted
statement of position to the parties’ stipulation of the single employer status of PMMC and
PCMC, the General Counsel maintained a separate “Burns Successor Alternate Theory” as a
back-up to the “single employer theory” discussed, supra. Thus the General Counsel argued, in
her Statement of Position at 8:
Under this theory, PCMC, as a Burns successor to PMMC, had an obligation to
recognize and bargain with the [IAM], since an overwhelming majority of its
employees in Oakland and Tacoma were former [IAM]-represented employees of
PMMC. In addition the General Counsel will demonstrate that there was a
substantial continuity in operations between the two enterprises. See Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 41-43 (1987).
In Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27 (1987), the Court noted at 43-44:
In Burns, we approved the approach taken by the Board and accepted by courts
with respect to determining whether a new company was indeed the successor to
the old. 406 U.S. at 406 U. S. 280-281, and n. 4. This approach, which is
primarily factual in nature and is based upon the totality of the circumstances of a
given situation, requires that the Board focus on whether the new company has
"acquired substantial assets of its predecessor and continued, without
interruption or substantial change, the predecessor's business operations."
Golden State Bottling Co. v. NLRB, 414 U.S. at 414 U. S. 184. Hence, the focus
is on whether there is "substantial continuity" between the enterprises. Under this
approach, the Board examines a number of factors: whether the business of both
employers is essentially the same; whether the employees of the new company
are doing the same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same production process,
produces the same products, and basically has the same body of customers.
See Burns, 406 U.S. at 406 U. S. 280, n. 4; Aircraft Magnesium, Division of Grico
Corp., 265 N.L.R.B. 1344, 1345 (1982), enf'd, 730 F.2d 767 (CA9 1984);
Premium Foods, Inc., 260 N.L.R.B. 708, 714 (1982), enf'd, 709 F.2d 623 (CA9
1983).
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In conducting the analysis, the Board keeps in mind the question whether "those
employees who have been retained will understandably view their job situations
as essentially unaltered." See Golden State Bottling Co., 414 U.S. at 414 U. S.
184; NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 464 (9th Cir. 1985). This
emphasis on the employees' perspective furthers the Act's policy of industrial
peace. If the employees find themselves in essentially the same jobs after the
employer transition, and if their legitimate expectations in continued
representation by their union are thwarted, their dissatisfaction may lead to labor
unrest. See Golden State Bottling Co., 414 U.S. at 414 U. S. 184.
The Respondents do not contest the sucessorship doctrine as such, rather they argue it
does not apply to the instant case because the PMMC bargaining unit of IAM-represented M&R
mechanics at the time PMMC took over the Maersk terminal M&R operations in Tacoma and
Oakland was accreted into the far larger coastwide ILWU-represented unit covered by the PMA-
ILWU Coastwide contract. Thus the Respondents argue that there is no continuity of operations
and that the predecessor’s unit employees, hired at the commencement of PCMC’s Oakland
and Tacoma Maersk terminals M&R non-crane mechanic operations, do not constitute a
majority of unit members either in an all PCMC mechanic employees unit or in the Coastwide
PMA-ILWU unit.
The Respondents emphasizes that Burns by its own terms does not find a sucessorship
appropriate where the original predecessor bargaining unit is no longer appropriate. Thus,
Burns noted at 406 U.S. 280-281:
It would be a wholly different case if the Board had determined that because
Burns' operational structure and practices differed from those of Wackenhut, the
Lockheed bargaining unit was no longer an appropriate one.4 Likewise, it would
be different if Burns had not hired employees already represented by a union
certified as a bargaining agent, [Footnote omitted.] and the Board recognized
as much at oral argument. [Footnote omitted.] But where the bargaining unit
remains unchanged and a majority of the employees hired by the new employer
are represented by a recently certified bargaining agent there is little basis for
faulting the Board's implementation of the express mandates of 8(a)(5) and 9(a)
by ordering the employer to bargain with the incumbent union. This is the view of
several courts of appeals and we agree with those courts. NLRB v. Zayre Corp.,
424 F.2d 1159, 1162 (7th Cir. 1970); Tom-A-Hawk Transit, Inc. v. NLRB, 419 F.2d
1025, 1026-1027 (7th Cir. 1969); S. S. Kresge Co. v. NLRB, 416 F.2d 1225, 1234
(6th Cir. 1969); NLRB v. McFarland, 306 F.2d, at 220 [10th Cir. 1962)].
____________________________________________________________________________
4 The Court of Appeals was unimpressed with the asserted differences between
Burns' and Wackenhut's operations: "All of the important factors which the Board
has used and the courts have approved are present in the instant case:
`continuation of the same types of product lines departmental organization,
employee identity and job functions.'. . . Both Burns and Wackenhut are
nationwide organizations; both performed the identical services at the same
facility; although Burns used its own supervisors, their functions and
responsibilities were similar to those performed by their predecessors; and
finally, and perhaps most significantly, Burns commenced performance of the
contract with 27 former Wackenhut employees out of its total complement of 42."
441 F.2d 911, 915 (1971). Although the labor policies of the two companies
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differed somewhat, the Board's determination that the bargaining unit remained
appropriate after the changeover meant that Burns would face essentially the
same labor relations environment as Wackenhut: it would confront the same
union representing most of the same employees in the same unit.
The parties recognized that under the sucessorship theory of the General Counsel’s
case and the Respondents defenses to the sucessorship allegations, the critical question is
essentially whether or not the PCMC, IAM-represented M&R mechanic bargaining unit
remained an appropriate unit under PCMC or, whether the PMMC group was accreted into the
far larger ILWU-represented unit.
The General Counsel and the Charging Party emphasize that the party challenging the
appropriateness of an historical bargaining unit bears a heavy burden to establish the contrary.
Counsel for the General Counsel noted Children’s Hospital, 312 NLRB 920, 929 (1993), holding:
“Compelling circumstances are required to overcome the significance of bargaining history,” and
she further noted “units with extensive bargaining history remain intact unless repugnant to
Board policy” citing P. J. Dick Contracting, 290 NLRB 150, 151 (1988). Counsel for the
General Counsel argues at page 116 of her post-hearing brief:
The Board applies a “restrictive policy” regarding accretions in order to safeguard
employee freedom of choice. See, e.g. Super Valu Stores, 283 NLRB 134, 135
(1987). An accretion will not be found unless a newly-created or acquired group
of employees shares an overwhelming community of interest with employees in a
pre-existing unit. Gitano Distributing Center, 308 NLRB 1172, 1174 (1992).
The Respondents agree that the Board generally finds an accretion only when the
employees sought to be added to an existing bargaining unit have little or no separate identity
and share an overwhelming community of interest with the preexisting unit to which they are
accreted. The Respondents argue strenuously however that, considering the traditional factors
in accretion analyses, the instant factual situation meets the Board’s tests. The General Counsel
notes, and the Charging Party agrees, that the issue of accretion involves fact-intensive
balancing of multiple factors including bargaining history, functional integration of operations,
employee skills and training, common control of labor relations, day-to-day supervision and
physical proximity citing Ryder Integrated Logistics, Inc., 329 NLRB 1493 (1999); Gould, Inc.
263 NLRB 442, 445 (1982). And, not surprisingly, the General Counsel and the Charging Party
argue that no accretion may be found in the instant case.
The Frontier decision: Frontier Tel. of Rochester, Inc., 344 NLRB 258, 259 (2005),
contains a recent discussion of the issues in accretion analysis:
The fundamental 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 alterations in industrial routine are made.” NLRB v. Stevens
Ford, Inc., 773 F.2d 468, 473 (2d Cir. 1985). However, because accreted
employees are absorbed into an existing bargaining unit without an election or
other demonstrated showing of majority status, the accretion doctrine’s goal of
promoting industrial stability places it in tension with the right of employees to
freely choose their bargaining representative. Accordingly, the Board follows a
restrictive policy in applying the accretion doctrine. Safeway Stores, 256 NLRB
918 (1981); Wackenhut Corp., 226 NLRB 1085, 1089 (1976). One aspect of this
long-standing restrictive policy, which was recently restated in E. I. Du Pont de
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Nemours, Inc.5 has been to permit accretion “only when the employees sought to
be added to an existing bargaining unit have little or no separate identity and
share an overwhelming community of interest with the preexisting unit to which
they are accreted.” Supra at 608 quoting Ready Mix USA, Inc., 340 NLRB 946,
954 (2003).6 In determining, under this standard, whether the requisite
overwhelming community of interest exists to warrant an accretion, the Board
considers many of the same factors relevant to unit determinations in initial
representation cases, i.e., integration of operations, centralized control of
management and labor relations, geographic proximity, similarity of terms and
conditions of employment, similarity of skills and functions, physical contact
among employees, collective bargaining history, degree of separate daily
supervision, and degree of employee interchange. E. I. Du Pont, supra at 608;
Compact Video Services, 284 NLRB 117, 119 (1987). However, as stated in E. I.
Du Pont, 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.7 Super Valu Stores, 283 NLRB 134, 136
(1987), citing Towne Ford Sales, 270 NLRB 311, 312 (1984).
____________________________________
5 341 NLRB 607 (2004).
6 This test is different than the traditional community-of-interest test that the Board
applies in deciding appropriate units in initial representation cases. In that context, the
Board will certify any unit that is an appropriate unit, even if it is not the most appropriate
unit. Bartlett Collins, 334 NLRB 484 (2001). In the accretion context, however, “[a]
group of employees is properly accreted to an existing bargaining unit when they have
such a close community of interests with the existing unit that they have no true identity
distinct from it.” NLRB v. St. Regis Paper, 674 F.2d 104, 107–108 (1st Cir. 1982). Thus,
the issue here is not whether an RC petition could properly be processed in a unit
consisting of CSRs and techs. Such a unit could be an appropriate unit and, if so, an
election would be held.
7 As noted below, the absence of these two factors will ordinarily defeat a claim of
lawful accretion. This is not to say that the presence of these factors will establish a
claim of lawful accretion.
And the Board has used the noted approach as recently as December 17, 2008, in Professional
Janitorial Service of Houston, Inc., 353 NLRB No. 65 (December 17, 2008), in which the Board
adopted the decision of an administrative law judge who rejected the defense of a successor
that the predecessor unit had been accreted into the successor’s existing multi-facility unit. The
judge noted the relevant law and the holding of the Board in Trane, 339 NLRB 866, 870 (2003),
as follows:
. . . Trane, 339 NLRB 866, 870 (2003), a representation case, the Board stated
that it has long held that a petitioned-for single-facility unit is presumptively
appropriate “. . . unless it has been so effectively merged into a more
comprehensive unit, or it is so functionally integrated, that it has lost its separate
identity.” The party opposing the single location unit bears a heavy burden of
rebutting its presumptive appropriateness. The factors that the Board examines
to determine whether this burden was satisfied include (1) central control over
daily operations and labor relations, including the extent of local autonomy; (2)
similarity of employee skills, functions and working conditions; (3) the degree of
employee interchange; (4) the distance between the locations; and (5) bargaining
history, if any exists. (Professional Janitorial Service of Houston, Inc., 353 NLRB
No. 65, JD slip op.at 8 (December 17, 2008).
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Given all the above, it is appropriate to turn to the continuity/unit elements of the
PMMC/PCMC transition at issue here. Initially the evidence respecting the two operations will
be set forth and thereafter the Board’s teachings will be applied to the operations involved.
b. The PMMC and PCMC Operations at the Maersk Oakland and Tacoma Terminals32
1) Basics
As discussed supra, PCMC began operations in 1990 as a supplier of M&R mechanics
to clients, initially, at terminals at the ports of Southern California and over time to clients at
West Coast ports generally. PCMC from its early times recognized the ILWU as representative
of its unit employees, joined the PMA and was signatory to the PMA-ILWU Coastwide contract.
PCMC also did work for Maersk at its Los Angeles terminal in the 1990s. In 1999 Maersk was
in the process of acquiring Sealand’s operations at its three terminals at the ports of Long
Beach, Oakland and Tacoma. The terms of the Sealand acquisition apparently called for any
acquirer to recognize the IAM as representative of the three terminals IAM-represented M&R
mechanics. Maersk expected to contract out the terminal M&R work at any acquired facilities as
it did at its other West Coast operations. PCMC was informed of the potential work opportunity
and, as McLeod testified, in order to “have an entity to respond to a proposal to do maintenance
work,” PCMC and Marine Terminals Corporation, a separate West Coast M&R contractor,
created a partnership: Respondent PMMC. In due course PMMC bid and was awarded the
Maersk contract for M&R work at the former Sealand terminals, hired the former Sealand
mechanics, recognized the IAM as their representative, and thereafter undertook the M&R work.
Since PMMC had no other unit work and the IAM had no hiring hall or other employment referral
systems in place in the relevant areas, there was essentially no interchange of unit employees
between and among the Maersk terminals.
As discussed supra, the PMMC-IAM M&R mechanic bargaining unit had existed since
1999 under PMMC and for many years previous to that under Sealand. The PMMC unit initially
included all PMMC M&R mechanic employees working on the three formerly Sealand, but
subsequently Maersk, terminals located in Long Beach, Oakland and Tacoma. In 2002, with the
consolidation of Maersk facilities in Southern California into a new facility and the consequent
loss of the IAM-represented employees work at the closed Long Beach Maersk facility, the
PMMC IAM bargaining unit was reduced to the remaining two locations at the ports of Oakland
and Tacoma.
More generally, the IAM and the ILWU have both long represented significant numbers
of M&R mechanics employed on the West Coast docks at various ports and terminals.
Individual West Coast ports have had historically different proportions of IAM or ILWU
representation of those employees. As noted supra, neither union historically or currently does
so on the West Coast exclusively.

32 See also the earlier discussions at section II, B. Background my Decision which will not
be repeated in detail here.
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2) Comparison of Operations
PMMC unit employees were terminated with the end of PMMC’s contract with Maersk
at Tacoma and Oakland on March 30, 2005. PCMC hired 32 of the PMMC Oakland unit
mechanics, and employed them at the Maersk Oakland terminal. It also on an interim basis
employed 11 other mechanics at the Maersk and Hajin terminals who worked on the Maersk
and Hajin cranes at the Oakland Port. These individuals comprised the total non-supervisory
workforce used by PCMC initially in replacing PMMC in Oakland.
On or within a few days of March 31, 2005, PCMC hired 48 of PMMC unit mechanics
in Tacoma. Upon their arrival at the Maersk terminal, six former PMMC unit employees were
permanently33 transferred to the Evergreen terminal in Tacoma where PCMC had an M&R
contract. At the same time 10 PCMC Evergreen based mechanics were permanently
transferred to the Maersk terminal doing unit work. These individuals comprised the initial total
non-supervisory workforce used by PCMC initially in replacing PMMC in Tacoma.
The former PMMC unit members hired by PCMC represented a majority of M&R
mechanic employees hired by PMMC to do the newly begun contract work at the Maersk
terminals in Tacoma and Oakland. The former PMMC unit members hired by PCMC did not
represent a majority of PCMC’s M&R mechanic employees Coastwide at all ports. Indeed they
were but a minor portion of that larger whole whose number was roughly half a thousand. Nor
did they represent a majority of the employees in the many West Coast bargaining unit covered
by the PMA-ILWU contract whose complement ran into the thousands.
The essential job content of the PMMC and PCMC Maersk terminal work in Oakland and
Tacoma was very similar. Generally the same employees, now PCMC employees, were doing
the identical work done under PMMC at the same facility and locations within the facility using
the same tools and equipment to do so. New coveralls were issued to unit members by PCMC,
the manner of documenting time worked changed from timeclock recordation to the submission
of time report to lead employees. Hours of shifts were adjusted from those established under
the IAM protocols to the hours established under the PMA-ILWU contract. Facility maintenance
and inbound roadability inspection – functions comprising a small percentage of the PMMC
units work under the PMMC Maersk contract – were no longer performed by PCMC unit
employees under the PCMC Maersk contract, but were handled by others.

33 As noted earlier, PMMC M&R mechanics are hired and employed specifically as multi-site
employees who will be transferred from terminal to terminal as needed. None the less, the
record establishes that, if even only on an informal basis, mechanics are based at one terminal
on an at least semi-permanent basis, and often are transferred on a temporary basis from there.
It is in this sense that the term permanent is used here.
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3) PCMC’s integration of operations, centralized control of management and labor relations,
geographic proximity, similarity of terms and conditions of employment, similarity of skills and
functions, physical contact among employees, collective bargaining history, degree of separate
daily supervision, and degree of employee interchange
(a) An Initial Matter – When in time are the listed characteristics to be measured and
considered?
The parties disputed and the case law discusses at some length the date at which the
argued successors operational circumstances should be measured and considered. This is of
importance because the employers under scrutiny are starting a new operation and the very
initial arrangements of the operation change rapidly. The new employers may have very
different staffing, supervisory organization and other circumstances initially which evolve rapidly
over time. So, too, certain aspects of PCMC’s unit employees’ rights and privileges become
available under the ILWU contract and hiring hall rules only after employees accrue significant
qualifying hours of employment and hence could and did not ripen in the initial period of
PCMC’s new operations.
The Court in NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972),
at 294, noted that when it was “perfectly clear” that an argued successor was going to take
certain action at the onset of its operations, there the hiring of a majority of the predecessors
represented employees, the successorship analysis could go forward as if that action had
occurred at the onset of operations.
The ILWU post-hearing brief argues that a pre-determined well defined plan must be
considered as executed in considering the argued successor’s operations. Counsel for the
ILWU cites in support, the decision of the Board in AG Communications Systems, 350 NLRB
168, n. 8 (2007), where the Board noted the implementation of a “well-defined plan” and
distinguished a contrary case: Holly Farms Corp., 311 NLRB 273 at 279 (1993) and also cites
Northland Hub, Inc. 304 NLRB 665 (1991) as further support for the need to consider the
changes implemented as part of a well-defined plan. The Respondent Employer agrees. The
General Counsel and the Charging Party challenge any application of a well-defined plan
analysis to the Respondent PCMC’s implementations in assuming the Maersk contract.
In my view the cases support the Respondents. I find on the facts of this case that
PCMC did in fact have a well-defined plan: its standard historically-implemented practices in
place at its other terminal operations. Thus, on the facts of this case and relying on the
implementation of the noted plan, it was perfectly clear in the period well before the actual
commencement of operations that PCMC was going to not only hire a majority of its Tacoma
and Oakland Maersk mechanic employees from among PMMC’s laid off employees, but that
PCMC was also going to shape its new operations consistent with its other M&R terminal-based
operations under the ILWU/PMA contract on the West Coast, i.e. conform its new operations to
its business model as it had without exception in assuming other M&R service contracts at other
marine terminals. Even though the initial startup of PMMC’s operations in its initial days had not
put that model completely into effect, I find that it had intended to do so and that in short order it
did so. Given this conclusion, I further find it is appropriate to consider the evolving
circumstances of the PCMC startup operation in the following days and weeks to determine the
nature of PCMC’s operations. In applying this determination, I will also consider the evidence
introduced concerning the terms and conditions of employment of PCMC’s Maersk-based
Tacoma and Oakland M&R mechanics which ripened as they accumulated enough hours to
qualify for certain privileges under the PMA-ILWU hiring hall regulations such as unit employees
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becoming eligible under hiring hall regulations to register for extra mechanic work shifts with
both PCMC and other PMA/ILWU contract signatory employers.
(b) Common Control of Labor Relations
PCMC, with its origins and the bulk of its current unit employee complement in Southern
California, maintains its headquarters in Long Beach, California. CEO McLeod and COO
Gregorio testified that PCMC operations are integrated and from its earliest days have run
based on consolidated rather than terminal-specific operational planning. Terminal manning
charts for all terminals and other staffing plans are prepared by headquarters staff rather than
by worksite staff.
The PCMC operations organizational chart for April 1, 2005, indicates that area terminal
M&R managers or general managers and port managers report to Long Beach located vice
presidents who in turn report to COO Gregorio, Sr. The vice president of Labor Relations,
Safety and Security also reports to Gregorio.
Joe Gregorio, Sr. testified, and was corroborated by numerous collateral witnesses, that
respecting labor relations under the contract, he retains active control of all hiring and discipline
including in Oakland and Tacoma operations and makes most other labor relations decisions in
conjunction with the Vice President and the Director of Labor Relations located in Long Beach.
He specifically testified he personally hired each of the M&R mechanics for Tacoma and
Oakland. He also makes decisions on permanent employee transfers but not temporary ones.
He testified further that he preferred to limit onsite layoff and discipline authority and actions by
his onsite supervision to avoid subjective decision making and personality conflicts where
possible. As a member of the PMA and signatory to the West Coast longshore agreement,
PCMC in larger contract and union matters deals with the PMA as the employers’ representative
who in turn deal with the ILWU or the various contractual committees that deal with ILWU and or
other employers in matters of policy.
The General Managers at both Oakland and Tacoma regularly visit the area terminals.
They decide whether or not additional hall mechanics should be called from the ILWU hiring hall
for any of the terminals under their supervision.
As of March 31, 2005, the Oakland Maersk terminal PCMC operations - comprising both
Maersk and Horizon M&R non-crane contract work - was supervised on site by General
Manager Al Adams who reported to Gregorio. Adams also supervised the crane employees who
were separately located at the site. Reporting to Adams were the M&R manager and the Crane
Manager. Under them were the non-supervisory departmental leads to whom the mechanics
directly reported.
As of March 31, 2005, the Tacoma Maersk terminal PCMC operations were supervised
on site by Tacoma General Manager Kagney who, at least by April 2005, reported to Tacoma-
Seattle Area Manager McGonegle. McGonegle was responsible for three terminals: Hanjin in
Seattle for cranes, Evergreen in Tacoma for M&R mechanics and cranes and Maersk in
Tacoma for M&R mechanics. His offices were located in the Puget Sound. McGonegle reported
to Long Beach Crane Manager Evans on Crane matters and to Vice President Del Conte on
Maersk M&R matters. Under them were the non-supervisory departmental leads to whom the
mechanics directly reported.
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(c) Common Day-to-Day Supervision
The Maersk terminal at the Port of Oakland has a physically separate crane department
at the terminal. Since 2002 its crane mechanics, who also work on Hanjin terminal cranes a mile
away, have been PCMC employees represented by the ILWU under the West Coast
agreement. PMMC did not ever have the crane maintenance contract with Maersk at Oakland.
That work had been done by other unions until its assumption by PCMC in 2002. The Maersk
terminal at the Port of Tacoma does not have a crane department. The Evergreen terminal is
some 3-to-4 miles distant from the Maersk Tacoma terminal.
The PMMC Oakland and Tacoma Maersk terminal M&R mechanics worked under
direction of non-supervisory lead employees in the various departments: i.e. power, reefer, gen
set, etc. The departmental leads reported to the M&R or site managers who reported to the
General Managers. The General Managers at both Oakland and Tacoma regularly visit the area
terminals. They decide whether or not additional hall mechanics should be called from the ILWU
hiring hall for any of the terminals under their supervision and whether or not temporary
transfers of mechanics to and from other local terminals should occur.
The initial Oakland Maersk terminal general manager was Al Adams who had held the
position for PMMC. Under PCMC he supervised both the crane and non-crane mechanics at
the terminal. He issued discipline and on one occasion he reduced a M&R manager-proposed
termination to suspension, and appointed an initial lead carrying over a PMMC foreman. Adams
reported to the Executive Vice President who in turn reported to Gregorio.
Initially the Tacoma Maersk PMMC operations were managed on-site by Tacoma
General Manager Lyle Kagney who soon commenced reporting to Puget Sound Area Manager
Brian McGonegle who in turn reported to headquarters staff. Under Kagney was an M&R
manager and under him were the department leads to whom the mechanics reported.
M&R managers are generally the full-time onsite mechanic supervision; they meet with
leads on a daily basis and discuss work needs and priorities which are then the basis for lead
assignments matching employees’ skills to needed work. Generally they do not participate in
decision making regarding formal complaints or the issuance of written warnings but do report
on underlying circumstances and events that may be the basis for discipline. They also meet
with the client and thereafter with the lead staff to discuss the days work requirements. In
response to instructions received at these meetings the leads assign the days work to the
mechanics. During the day the M&R managers, one of the leads or even a representative of the
client may request the assignment of a mechanic. The managers decide how the request is to
be addressed. M&R managers however, by explicit workplace rule, do not directly instruct the
mechanics. All assignments, instructions and directions issued to mechanics are made by the
leads.
The leads are not supervisors but monitor and report time and attendance, provide
mechanics all their assignments and instructions, and the leads receive and pass on information
from supervision. They also report to supervision regarding safety, employment and labor
relations matters on site and can investigate and gather information concerning problems or
untoward events which is then transmitted to general managers, who may act on matters initially
either resolving them or passing them on to headquarters. As noted supra, COO Gregorio
plays a very large role in hiring, firing and discipline of all PCMC employees and headquarters
and the managerial staff there are in charge of staffing other than temporary transfers and
contract and human relations issues.
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(d) Interchange and Transfer
i. General Description
Following the loss of the Southern California Maersk terminal work, PMMC’s entire M&R
mechanic unit complement was located at the Maersk Oakland and Tacoma terminals that are
over 700 miles apart. PMMC unit employees did not transfer to, or interchange between these
two PMMC locations; nor did PMMC unit employees in any significant way transfer or
interchange with any other employers’ employees.34 Finally, the IAM had no hiring hall
available to PMMC who, at least on this record, did not regularly use casual or short time M&R
mechanic hires.
PMMC’s unit employees did transfer and interchange between the various departmental
unit tasks at the terminal where they worked on an as-needed-basis. Thus a particular
mechanic might be regularly assigned to the reefer department, but be transferred to another
department on a temporary basis if his or her skills were needed there. Or permanent transfers
between departments might occur.
So, too, PMMC mechanic employees regularly worked on both Maersk and Horizon
equipment interchangeably at each terminal. The work content between the carriers was the
same. The equipment was the same, the tasks undertaken were essentially identical, the on
terminal locations where the work took place were the same. Similar practices were in place at
PMMC operation at the Southern California Maersk terminal. There was no transfer from the
terminal but mechanics moved between departments as needed.
As discussed supra, PCMC had a uniform practice of considering M&R mechanics as
transferrable; moving them on an as-needed-basis between terminals that were is reasonable
proximity and in augmenting steady staff with hall mechanics. PCMC’s managerial witnesses
credibly testified that PCMC as a fundamental business goal worked to establish practices and
procedures which would allow maximum staffing flexibility between and among PCMC work
sites in their terminals in the Southern California, Northern California and Puget Sound ports.
The professed benefits obtained from such a model, they testified, was that being able to
regularly transfer staff from one area terminal to another on short notice and, for short periods
as necessary to meet business needs, allowed PCMC to maintain smaller work complements,
i.e. its “lean staff” model, with concomitant cost savings to it and the client.
PCMC’s transfer practices at the Maersk Tacoma and Oakland terminals matched the
practices applied to the former PMMC terminal mechanics respecting internal transfers and its
general interchange between and among the mechanics doing the various types of work that
the unit undertoo,35 but also had the additional components PCMC used generally. The
situation in the Southern California Ports of Long Beach and Los Angeles, with their multiple
terminals employing many PMMC mechanics and a hiring hall system that had available hall
mechanics was not duplicated in either the Port of Oakland or the Port of Tacoma. In Tacoma,
while PCMC had other PCMC mechanics at other terminals who could interchange with the

34 For a period of months prior to the March 31, 2005 layoffs i.e. during the period when
PMMC had the TRAPAC contract and PMMC was still working at Maersk, PMMC from time to
time lent an indeterminate few of its mechanics to TRAPAC for work at that terminal for
apparently brief periods.
35 As discussed, supra, the PCMC mechanics operating under a different contract with
Maersk did not assume certain tasks done by the PMMC mechanics.
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Maersk Tacoma terminal mechanics, there was apparently no ready supply of hall dispatch
mechanics. In Oakland, while hall dispatches were obtainable, the only other PCMC steady
mechanics in the area were few in number and were crane mechanics.
More specifically, the PCMC Tacoma Maersk terminal unit employees at relevant times
were geographically proximate to other PCMC M&R mechanics working at the Tacoma
Evergreen terminal. At the onset of PCMC’s Tacoma Maersk operations when it was hiring
PMMC mechanics, a dozen or so PMMC mechanics were hired and then immediately
permanently assigned to the Evergreen operations and a like number of PCMC Evergreen
mechanics were similarly transferred to the Tacoma PCMC Maersk operation. Thereafter
PCMC Maersk mechanics were temporarily transferred to similar work at the Evergreen terminal
and Evergreen terminal mechanics were temporarily transferred to similar work at the Maersk
terminal. Very few hall dispatches were utilized.
In Oakland at relevant times PCMC did not have other M&R non-crane mechanic
contracts. It did however perform the crane mechanic work at the Maersk terminal and at two
other terminals: TRAPAC and Hanjin. When PCMC took over the PCMC work at the Oakland
Maersk terminal, PCMC’s non-crane terminal mechanics were called upon to assist PCMC
crane mechanics working on these terminal cranes and vice versa. The quantum, nature and
significance of the assistance involved is disputed and is discussed infra.
In addition to the transfer and exchange of the “steady” or full-time mechanic employees
employed by PCMC and transferred between and among PCMC’s employment sites, including
the Oakland and Tacoma Maersk terminals, PCMC has historically and at relevant recent times
utilized the contractually-established PMA/ILWU joint hiring halls which are located in the
relevant ports in several ways. Initially it is important to keep in mind the difference between the
request for the dispatch of, dispatch, and hire of a permanent full-time mechanic employee, also
known as a “steady” employee, and the request for the dispatch of, dispatch, and hire of a
temporary mechanic employee for a period of a few work shifts – a temporary or “hall”
mechanic. For purposes of this discussion, the focus is on the employment of temporary or
“hall” mechanics.36
PCMC’s witnesses credibly testified that, when PCMC determines it needs additional
mechanics at a particular facility for a temporary period, it puts in a request for the requisite
number of temporary mechanics at the relevant hiring hall. Dispatched hall mechanics work for
a limited number of shifts for PCMC and then their work for PCMC ends and they return to the
hall. In some cases, if qualified mechanics are not available for dispatch at the hall at the time
of request, other hall registrants with mechanics skills may seek dispatch and may be accepted
by PMMC for temporary employment. These dispatched registrants are often far less skilled
than PCMC’s steady mechanics and do not arrive at the job with the complete and substantial
sets of mechanics tools than many steady mechanics maintain on site. Nonetheless these
individuals – or at least those held sufficiently qualified after on site interview – can be and are
assigned mechanic positions with the least technical skill requirements allowing the PCMC
steady mechanics normally assigned to that work to be assigned to other positions.
Thus, the staff of mechanics at any PCMC area on a West Coast terminal may be
augmented on a quick, short-time basis through use of the PMA/ILWU joint hiring hall dispatch
process. Implicit in this process, of course, is the existence at relevant times and places of a

36 Temporary employees dispatched from the hiring hall may come to be offered and accept
continued employment as full time or steady mechanics and did in a few cases involved herein.
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sufficiency of hiring hall registrants with the necessary skills who are available to answer a
dispatch request from PCMC or other employers for the dispatch of temporary mechanics. As
noted earlier, historically the ILWU in the Tacoma area had not represented M&R mechanics
until the events involved herein and at relevant times had not had a ready supply of qualified
hiring hall mechanic registrants to supply requests for dispatch in that area or to make obtaining
mechanics on short notice a certain matter as would be the case in other Ports.
The hiring hall dispatch process impacted the PCMC M&R mechanics in another way: it
provided employment opportunities for those mechanic employees who wished to obtain it. The
PCMC steady mechanics at all terminals, including the Oakland and Tacoma Maersk terminals
under the ILWU/PMA contract and, with the requisite qualifying time of employment sufficient to
obtain registrant status, may register at a hiring hall to obtain dispatches to other mechanics
work, with limitations, while remaining steady PCMC mechanics.
ii. Quantification of PCMC Mechanic Transfer and Interchange at Relevant Times
While the Respondent Employer’s witnesses in a variety of circumstances uniformly
characterized the various types of interchange and transfers described above as a frequent and
common occurrence between and among PCMC work sites including the Oakland and Tacoma
Maersk terminals, the actual evidence respecting the extent of those transfers that occurred
during the relevant period was hotly disputed both at trial and in very detailed briefs.37
As noted, the transfer/interchange involved after initial staffing of the two Maersk
terminals by PCMC is between the Tacoma area facilities and hiring hall and, separately,
between the Oakland area facilities and hiring hall. Transfers did not occur between Tacoma
and Oakland Not discussed here as transfers/interchange are either the shift of work for a
mechanic between one carrier’s equipment to another’s at a given terminal: a mechanic working
on a Maersk item and then a Horizon item is not relevant here. Further, when measuring
transfers from one PCMC Tacoma Maersk terminal mechanic position to a Tacoma non
Maersk position or vice versa for a few days with the transferee then returning to the original job
site, such a short “go and return” cycle is regarded as one temporary transfer not two.
Additionally, Maersk non-crane mechanic transfer for crane mechanic assistance at any

37 The Respondent Employers entered into evidence substantial summaries of work record
evidence respecting employee transfers and further summarizations of those initial entered
summaries. The Charging Party on brief strenuously contested the accuracy and efficacy of the
Respondent Employers secondary summaries of the Respondent Employer’s primary summary
evidence and provided its own voluminous counter secondary summaries in opposition as an
Appendix to its brief. Counsel for PMMC in his reply brief at page 13, footnote 1, took umbrage
to the Charging Party’s brief’s Appendix and argued the Charging Party’s objections to the
Respondent Employer’s summaries “should be rejected as untimely efforts to raise objection or
introduce new exhibits after the record was closed.”
I construe PCMC’s quoted objection as a motion to strike and I deny the motion. The
evidence under contest here is the original summaries of individual employee events. The
Respondent Employer’s further summarization of the facts set forth in the original summaries as
well as the Charging Party’s reworking of the same original summaries from its point of view are
each simply argument and are not independent evidence. Since the Charging Party has not
submitted new evidence nor attempted to do so, and since advocacy is the purpose of briefs,
I shall not strike or reject the arguments of the Charging Party’s Appendix to its brief as
described.
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terminal and crane mechanic transfers to, from or between terminals has been separately
noted.
a) Oakland
The initial PCMC Oakland Maersk terminal non-crane mechanic employee group staffed
by mechanics hired from PMMC on or immediately after March 31, 2005, comprised 33
employees. The entire PCMC Oakland work of all kinds during relevant times was the Maersk
terminal non-crane work, the Maersk terminal crane mechanical work, the Trapac terminal crane
mechanical work and the Hanjin terminal crane mechanical work. The PCMC crane mechanics
employees involved in the crane work noted comprised a dozen employees.
During the part of 2005 that PMMC worked under the Maersk contract for non-crane
work in Tacoma and Oakland - a 9-month period from March 31 to December 31, 2005, the 33
Maersk Oakland terminal non-crane M&R mechanic employees worked primarily at their
traditional non-crane work at the Maersk terminal work. Eighteen of the 33 – over half – worked
on cranes at the Maersk, Trapac or Hanjin terminals or some combination of them. Some of
these employees worked a significant number of hours on cranes, others few or very few.
Trapac and Hanjin work hours in evidence were clearly crane work since only crane work was
done by PMMC at those locations. Only evidence showing total hours worked per employee
during the period is in evidence - not the number of times a given employee might be assigned
to undertake crane work. The data in evidence does not distinguish between hours worked at
crane or non-crane work at the Maersk terminal so it is not possible to isolate the two. In 2005
the 33 undertook 2662 hours of paid hours of employment at the Hanjin terminal or, assuming
8-hour days, 334 days of employment. In the same period, the 33 undertook 273 hours of paid
hours of employment at the Trapac terminal or, assuming 8-hour days, 34 days of employment.
Testimony suggested Maersk terminal crane work undertaken by the original PMMC mechanics
had at least an equivalent portion of crane work.
In the same 9-month period the Oakland PCMC employed some 90-odd employees for
various period and amounts of time in addition to the original 33 mechanics. Presumably this
number includes the 12 PMMC crane mechanic employees working on the cranes before the
non-crane operation started. Of these hires about half worked some or all their time at the
Maersk terminal. Sixty nine of the 90 had obtained a dispatch or dispatches from the ILWU
hiring hall. Thirty three of that number were dispatched at least once to the Maersk terminal and
6 of that number in time became PCMC steady employees at that terminal. The records
indicate hiring hall mechanics dispatched to Maersk Oakland totaled 33 and they worked a total
of 3792 hours or 474 eight hour shifts. Included in that figure are some 2868 hours or 359 shifts
undertaken by dispatchees who became steady employees. In 2006 figures varied but were not
orders of magnitude different from that set forth above.
b) Tacoma
In Tacoma, PCMC took over the PMMC Maersk operation initially hiring 47 PMMC
mechanics. As noted supra, PMMC sent a half-dozen PMMC employees to the Evergreen
terminal. Of the 47 starting complement of former PMMC mechanics as of March 31, 2005, the
Respondent Employers’ records establish that through the remaining nine months of 2005, the
47 worked at Maersk and Evergreen terminals in varying amounts. Four never worked at
Maersk. Nineteen never worked at Evergreen and five worked only one shift at Evergreen. The
remaining 29 worked both at Evergreen and Maersk with 10 having worked at least 100 hours
at each terminal.
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Of the 54 non-PMMC mechanics employed by PMMC in the Tacoma port in that 9-
month period of 2005, some 44% worked at least some time as Maersk. Hiring hall dispatching
of mechanics in Tacoma was infrequent. During the period a single dispatchee was sent to
Evergreen for one or two shifts and a single individual was dispatched to Maersk.
In 2006 figures varied but were not orders of magnitude different from that set forth
above. The total number of dispatched mechanics rose to six, four of whom worked fewer than
10 hours each. The remaining two worked 18 and 90 hours respectively.
c. Analysis and Conclusions Respecting Accretion
1) Preliminary Matters
The Parties’ legal arguments and citations of authority have been presented initially
supra. As noted, the parties do not differ on the legal standards to apply to determine if PCMC
accreted the PMMC unit into a larger unit, so much as they differ respecting the facts at issue
and differ in how to apply those facts and the balancing process of the analytical process.
Without detracting from the authority marshaled by the parties, the Board’s accretion doctrine as
it is undertaken in a sucessorship case bears revisiting. The accretion doctrine seeks 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 alterations in industrial routine are made.” Frontier Telephone, Inc., 344 NLRB 274 (2005).
Since accretion forecloses employees basic right to select a union representative by being
absorbed into an existing bargaining unit, historically, the Board has followed a restrictive policy
in applying the doctrine. Towne Ford Sales, 270 NLRB 311 (1984), enfd. 759 F.2d 1477 (9th
Cir. 1985). As a result, the Board finds accretion “only where the employees sought to be
added to an existing bargaining unit have little or no separate identity and share an
overwhelming community of interest with the preexisting unit to which they are accreted.” E. I.
Du Pont de Nemours, Inc., 341 NLRB 607, 608 (2004), quoting Ready Mix USA, Inc., 340 NLRB
946, 946-948 (2003) (citing Safeway Stores, 256 NLRB 918 (1981)).
In applying this standard, the Board examines several factors, including: interchange
and contact among employees, degree of functional integration, geographic proximity, similarity
of working conditions, similarity of employee skills and functions; supervision and collective-
bargaining history. Archer Daniels Midland Co., 333 NLRB 673, 675 (2001). Though a case will
generally necessitate a “balancing of factors,”38 the “two most important factors,”39 identified as
“critical” to an accretion finding, are employee interchange and common day-to-day
supervision.40
As applied to accretion, the heightened community of interest standard is not the same
as the general community of interest test used to determine the initial appropriateness of a
bargaining unit. Whereas with initial bargaining, a unit need only be appropriate, and not the
most appropriate, the Board will only uphold accretion if the community of interest between the
existing unit and the employees to be accreted is so closely integrated that the latter employees

38 Great Atl. & Pac. Tea Co., 140 NLRB 1011, 1021 (1963).
39 E. I. Du Pont, 341 NLRB 607 at 608 (2004).
40 Frontier Telephone, 344 NLRB 258,-259 (2005); see also, Archer Daniels, 333 NLRB 676
(2001) at 675; Towne Ford Sales, 270 NLRB 311 (1984) at 311-312.
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have “no true identity distinct from” the existing unit. Frontier Telephone, 344 NLRB 258, 259,
n. 6 (2005).41
Because the Board views the analysis of accretion in the context of a successorship
differently than initial representation unit questions or settings, it is of value to consider the
Boards discussion of the issue in that context. In Banknote Corp. of America, 315 NLRB 1041
(1994), enfd. 84 F3d 637 (9th Cir. 1996), cert. denied. 519 U.S. 1109 (1997), the Board
considered the possible accretion of craft units at a printing facility into a larger single unit as
part of a successorship allegation. The Board majority found the evidence offered by the
employer to establish changes in job duties comprising the “sketchy testimony of the six
employees above, as well as several inconclusive documents” was insufficient proof over a
dissent arguing the evidence offered was unrebutted and sufficient to establish the original units
were now inappropriate.
The Board majority noted in Banknote Corp. of America, 315 NLRB 1041 (1994) at
1043:
Critical to a finding of successorship is a determination that the bargaining unit of
the predecessor employer remains appropriate for the successor employer.
[Footnote omitted] In Burns, [406 U.S. 272 (1972)], the Supreme Court found that
the successor employer (Burns) was obligated to bargain with the union that
represented the employees of the predecessor (Wackenhut). The Court
observed however: ‘‘It would be a wholly different case if the Board had
determined that because Burns’ operational structures and practices differed
from those of Wackenhut, the Lockheed bargaining unit was no longer an
appropriate one.’’ Id. at 280. The Board’s longstanding policy is that ‘‘a mere
change in ownership should not uproot bargaining units that have enjoyed a
history of collective-bargaining unless the units no longer conform reasonably
well to other standards of appropriateness.’’ Indianapolis Mack Sales & Service,
288 NLRB 1123 fn. 5 (1988). As noted by the judge, the Board has consistently
held that long-established bargaining relationships will not be disturbed where
they are not repugnant to the Act’s policies. [Footnote omitted] The Board places
a heavy evidentiary burden on a party attempting to show that historical units are
no longer appropriate. See Columbia Broadcasting System, 214 NLRB 637, 642–
643 (1974) (‘‘compelling circumstances’’ must be shown before the Board will
disturb a historical unit).
In considering the circumstances relevant to the instant case it is important to note
several Charging Party and General Counsel challenges to the Respondent Employers
evidence respecting the PCMC Tacoma and Oakland mechanics following the March 31, 2005
commencement of operations.
First, the General Counsel and the Charging Party argue, the Charging Party most
vociferously, that the evidence offered by the Respondent Employers regarding PCMC’s “lean
staffing” business model, the evidence of its history, and the evidence of its application to the

41 Generally, a historical unit will be found appropriate if the predecessor employer
recognized it, even if that unit would not be appropriate under Board standards if it was being
organized for the first time. Indianapolis Mack Sales & Service, Inc., 288 NLRB. 1123, 1126
(1988); Trident Seafoods v. NLRB, 322 U.S. App. D.C. 1, 22 (D.C. Cir. 1996) (enforcing in part,
Trident Seafoods, 318 NLRB 738, (1995).
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locations at issue, comprise an incredible, self serving, after-the-fact concoction designed for
the instant litigation which evidence in its totality and individual parts is unbelievable and
insufficient to meet the heavy evidentiary burden the Board applies to the evidence of the party
seeking to show an accretion.
The evidentiary standard noted is a high one and I have applied it herein to the
contentions involved in the analysis below. The Charging Party’s skepticism and incredulity
regarding the proffered evidence however, in my review of the record and my scrutiny of the
multiple Respondent witnesses who described the model in whole or in part, is insufficient to
successfully challenge the claims of the Respondents. The Charging Party is indignant but
offers little evidence to support indignation. I found the descriptions offered to be plausible and
the witnesses credible. The main witness, Respondent PCMC’s CEO McLeod, was particularly
credible in these regards and I specifically credit him. The evidence offered by numerous
Respondent witnesses and the Respondents’ documents are mutually corroborative of PCMC’s
lean staffing and flexible substitution process which the evidence demonstrates has been
implemented historically and applied to the sites at issue at relevant times. I credit the evidence
without addressing here the sufficiency of that evidence to establish an accretion. Thus, without
here finding this evidence sustains the Respondents’ accretion case, I find the evidence is not to
be rejected as manufactured or concocted. Nor as the Charging Party advances on brief, do I
find it simply “business as usual” undertaken by any profit-seeking business.
Second the General Counsel and the Charging Party contend that the Respondent
Employer’s obligation to bargain with the IAM either: a) remained viable at all times without
discontinuity during the changeover from PMMC to PCMC or, b) attached at the time of the
arithmetic majority hire by PCMC of the PMMC employees. Thus, they argue, under the former
continuous bargaining obligation theory, that any and all changes to the PMMC terms and
conditions of employment undertaken by PCMC without bargaining with the IAM were wrongful
unilateral changes, i.e. were violative of the Act, and can not be considered in any accretion
analysis. As noted supra, I did not find a continuous bargaining obligation on the part of the
Respondent Employers and therefore this argument fails. The latter argument is in essence
that the changes to the working circumstances at the Tacoma and Oakland Maersk terminals
that PCMC put in place, after the hire and commencement of employment of the former PMMC
mechanics also may not be considered in the accretion analysis. This theory too was rejected
supra. I held and here reaffirm that the Respondent PCMC, from the time it became aware it
had obtained the Maersk contract to do the work at issue, intended to extend the “lean staffing”
model of operations it was then using at all its worksites and therefore had an objectively
measurable, clearly determined plan or model it intended to put in place at the time the PMMC
mechanics were hired. In such a circumstance, the facts and circumstances leading to the
implementation of the Respondent PCMC’s implemented plan may be considered even though
parts of its implementation occurred well after the initial PMMC employee complement was
hired and had begun work.
Further, I note that in regards to the Respondent Employers’ bargaining history, the
parties seek to characterize undisputed events and circumstances in different ways. Thus, the
Respondents note that while the General Counsel and the Charging Party characterize the
PMMC unit at the time of the change in operations as being an historic bargaining unit, it clearly
was not. Rather, argue the Respondents, the two-facility unit involved in 2005 was but a rump
portion of a three-facility PMMC bargaining unit that in 2002 lost the bulk of its unit employees
with the discontinuance of employment of M&R mechanics working at a Maersk terminal in
Southern California which was closed in a terminal consolidation. Respondents note further that
even during the time the Southern California portion of the unit was employed, the PMMC unit
did not do all the Maersk M&R mechanic work on the West Coast. PCMC had long done a
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portion of the Maersk M&R mechanic work in Southern California with ILWU represented
mechanics and that work had grown substantially when the new consolidated Maersk terminal
work was given in its entirety to PCMC in 2002.
It is also necessary to resolve the disputes respecting the similarity or comparability of
the skills and duties of the terminal-based marine crane mechanics and the M&R non-crane
mechanics for purpose of evaluating the Oakland interchange and temporary assignments of
former PMMC non-mechanics with the PMMC crane mechanics who worked on the cranes at
the three terminals noted above.
As described above from the onset in Oakland, PCMC intended to utilize, and when
underway utilized, the non-crane former PMMC mechanics, to the extent noted in the discussion
above, to assist crane mechanics in various crane M&R operations and vice versa. The crane
operations with which the non-crane mechanics were involved were identified by several
witnesses as crane procedures requiring several individual mechanics working as a term to
complete some task which involved crane mechanics undertaking the skilled technical aspect of
the procedure and the former PMMC non-crane mechanics providing less or even essentially
unskilled participation and support. Other assignments of former PMMC non-crane mechanics
on cranes involved general assignments utilizing mechanic skills but not technical specialized
crane specific skills. At least one mechanic testified to the unique requirements of working at
substantial elevations on the marine cranes as presenting an additional requirement for
mechanics – he was not comfortable at such heights. Non-crane mechanics however, or at
least some of them, worked on container carrier equipment which moved containers at the
terminal and were large enough to straddle long rows of containers stacked six high, i.e. also
disconcertingly high in the air.
Having considered the issue, I find based on the record as a whole that the M&R marine
crane mechanic position is a technical mechanic specialization with a separate history of both
representation and mechanic careers, but may fairly be considered a mechanics position not
beyond all comparison with the non-crane mechanic positions involved herein. I find that the
crane and non-crane mechanics, or at least some of the specialized non-crane mechanics, who
themselves have the earlier discussed specializations and variations of skill and experience,
could and did interchange at least on the same basis as earlier described regarding hall
mechanics. Thus the non-crane mechanics could assist or step in at the lesser skill and
experience required portions of the work, allowing – like the hall mechanics that may have not
had a full panoply of mechanic skills – to free up the more experienced and skilled crane
mechanics to undertake the skilled portions of tasks or assignments. So, too, I find that the
crane mechanics could interchange on a like basis to assist non-crane mechanics.
The work areas of the crane department at the Maersk terminal had historically been
physically separate from the non-crane mechanic areas even as to locker, lunch and clean-up
areas. And the cranes the large land-based stationary marine crane mechanics work on, are
physically apart from the bulk of the equipment the non-crane mechanics work on. So too
separate supervision is both historic and on going. When non-crane mechanics worked on
cranes at the Maersk, Trapac or Hinjin terminals, they were under the general direction of the
crane mechanics, leads and supervision of the crane department.
A final preliminary matter is the question of the unit or units involved in the
successorship dispute. Both PMMC and PCMC treat the Tacoma and Oakland groups as part
of a single unit even though they have no direct interchange between them. The arithmetic
arguments respecting successorship majority based on the predecessor unit’s numbers is
consistent whether or not the two terminals comprise one unit or each is advanced as a
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freestanding unit. And, as described above and as will be discussed in greater detail below, the
two Maersk terminal mechanics groups have quite different patterns of transfer and interchange
between staff from other PCMC facilities and the intermingling of short term hiring hall
dispatched employees. Should the successor analysis deal with each location independently
alternately as well as a single two facility unit?
Having considered the matter, I conclude the successorship issues raised by the
complaints and litigated by the parties must involve only the single, two-location unit. The two
Maersk terminals mechanics in Tacoma and Oakland must stand or fall as successor or
accretion together. I reach this conclusion because the complaints in this case – which control
the government’s theory of the violations independent of the wishes and hopes of the Charging
Party – plead only the single, two-location unit concerning which the Respondent Employers are
obligated to bargain. Therefore, there are no half measures at issue. Were it possible for one
of the two locations to be considered successor to the single predecessor same location unit,
while the other location unit was not such a successor, then the successorship theory
undergirding this aspect of the 8(a)(5) violation theory of the General Counsel must fail. The
Respondent Employers must end up obligated to bargain respecting both Tacoma and Oakland,
or they cannot be obligated to bargain for either.
2) The Viability of the PMMC Mechanics Unit During PCMC’s Operations
The cases cited make it clear that it is the survival of the predecessor unit within the
argued successors’ operations which is definitive in successorship accretion analysis. Based
upon all the above consideration of the M&R mechanics in the above presentation of the history
of the industry and the ILWU and IAM within it, the histories PMMC and the PCMC, the
discussion of nature of both PCMC and PMMC’s operations and the detailed consideration of
the control of labor relations and employee interchange, it is possible to paint a rather detailed
picture of the Tacoma and Oakland PMMC operations and its IAM M&R mechanics bargaining
unit and of the extent to which it continued under PCMC employment at relevant times.
Summarizing portions of the histories and discussion of the industry, supra, it is clear
that M&R mechanic work on the West Coast docks, to an extent at least similar to longshore
dock work, has on and off again work demands. The terminal-based M&R mechanics
experience frequent, cyclic and episodic changes in the volume of work required at a particular
terminal and that the variation in workload is in some cases predictable and anticipatable and in
other cases seemingly random and unpredictable. Many of these changed work requirements
last for very short periods others for longer periods. These changes in the press of work require
varying amounts of unit staff which make the efficient use of a fixed employment complement
more challenging that a steady work load would.
Selecting portions of and summarizing in part the material addressed above, the two
remaining locations in March 2005 of the earlier three locations of PMMC Maersk non-crane
M&R mechanics - Tacoma and Oakland – involved skilled hands doing Maersk M&R
mechanics work without the occurrence of unit employee transfers or cross terminal interchange
with other employers employees. It also did not involve the use of a hiring hall or halls to add
staff, and, finally, it occurred without unit interchange or transfer between the Tacoma and
Oakland Maersk terminals which together comprised a single two facility unit covered by a
single IAM/PMMC contract.
At the time of the March 2005 Oakland and Tacoma takeover of the Maersk work by
PCMC, the great bulk of PMMC M&R mechanics were hired by PCMC and continued the same
work they had done for PMMC at the same places within the same facilities using the same
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practices and procedures as heretofore. In these regards essentially nothing changed in the
nature of operation from the perspective of the working mechanic, save the matters discussed
supra. The changes undertaken by PCMC, however, in taking over the PMMC operations
included putting in place its existing, longstanding transfer practices and hiring hall usage
practices already long in operation at its numerous other M&R facilities in Southern California.
That set of practices put in place by PCMC included the following. PCMC from the
inception of the Tacoma and Oakland operations – i.e. as part of the hiring process for the
PMMC mechanics – made it plain to those it offered employment that PCMC mechanics were
not hired for a specific job at a specific terminal in a specific port but rather were hired to do
work as assigned at the various locations PCMC had work as those mechanics were needed to
fulfill the needs of the clients.
Further, as part of the changes implemented, the former PMMC Oakland and Tacoma
M&R mechanics from the onset were regarded by PCMC as a part of its overall unit of
mechanics who were part of the PMA/ILWU coastwide unit represented by the ILWU and were
covered by the coastwise PMA/ILWU collective bargaining agreement. Thus from the beginning
they were screened for hire, trained under, compensated in accordance with, and otherwise
subject to the PMA/ILWU coastwide agreement as well as all PMA employee physical
standards, general training and safety instruction requirements and were entitled to participate –
individual criteria otherwise having been met – in the hiring hall process as hiring hall
registrants.
A significant portion of the PMMA mechanics hired by PMMC stayed put at their same
old Maersk terminal, as noted briefly above, but not necessarily without travelling to help at
other locations and not without having others sent or dispatched to help them. In addition to
being called to other locations to perform work as needed, the former PMMC mechanic
employees also got assistance from other PCMC employees when they needed additional
hands to get necessary work completed. This assistance took two forms. First, other PMMC
steady mechanics were transferred to the Maersk terminal mechanic worksites – particularly in
Tacoma – to assist. Second, dispatch mechanics from the hiring hall – particularly in Oakland –
were used on very short term basis to augment the mechanic workforce. Again, the extent of
these practices is described above.
The Tacoma and Oakland locations were treated by PCMC the same as other PCMC
work locations at other terminals. Labor relations at the highest levels were handled by the
Long Beach headquarters or by the PMA acting as employers’ agents in dealing with the ILWU
and with contract issues. PCMC headquarters issued manning charts to worksites setting forth
specific employee staffing requirements over the period. As noted, supra, PCMC COO
Gregorio took an active and controlling role in hiring, firing and discipline companywide. There
were layers of PCMC management at the port, terminal and, where relevant, within terminals for
crane and non-crane mechanics work. M&R mechanics took direction and assignment from
workplace-based non-supervisory leads who, though they had little direct role in discipline or
labor relations, assigned mechanics work and were the mechanics connection to supervision.
Mechanics working away from their home terminal – such as the Oakland and Tacoma Maersk
terminal-based M&R mechanics – worked under the direction of lead and supervision at the
place where the work was being done.
All iof the above presents an unusual set of factual circumstances resulting from
specialized work in a very specialized industry, perhaps, but do the Board’s cases in this area
address similar circumstances to those present here in a sucessorship accretion analysis? The
broad conceptual analysis undertaken by the Board in the various noted cases in this area has
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been skillfully cited and argued by the parties at length, the more salient portions of those
arguments have been presented above. It is clear however, the Board requires a fact-intensive
balancing of the multiple factors presented and involves the weighing of such factors as the
extent or frequency of employee transfer or interchange, the common control of labor relations
and common day-to-day supervision in addition to other factors as noted above.
When looking to the Board’s decisions for guidance in making sense of the various
factual circumstances described, it must be kept in mind that, as a result of earlier findings
herein, many Board cases cited by the parties addressing accretion issues are not on point or
may be distinguished or at least discounted because they involve circumstances inconsistent
with my earlier findings or they involve representation cases rather than successorship cases.
The parties have cited many cases dealing with interchange in representation cases
where the single facility presumption is under challenge. Like many of the cases cited by the
parties as discussed supra, the cases are not squarely on point but may be noted. The Board in
Kapok Tree Inn, 232 NLRB 702, 703(1977), stated its approach in determining appropriate units
considering the single facility presumption of appropriateness in multifacility operations:
When dealing with a multifacility operation, the well-established Board policy is to
find a single facility unit presumptively appropriate. This presumption can be
overcome, however, by a showing of functional integration so substantial as to
negate the separate identity of the single-facility unit. In making determinations
on this issue, the Board looks to such factors as prior bargaining history, the
geographical proximity to other facilities of the same employer, the degree of
day-today managerial responsibility exercised by the branch facility
management, the frequency of employee interchange, and whether the
requested single- facility unit constitutes a homogeneous, identifiable, and
distinct employee grouping. Haag Drug Company, Incorporated, 169 NLRB 877
(1968).
The interchange language quoted is therefore of some values, but again it must be noted that
the instant accretion analysis is more restrictive and the evidentiary burden, as noted supra, is
great. Nonetheless the discussion of the sufficiency of transfers in the cited cases, as the Board
has stated, is relevant to the separate identity of the smaller unit compared to the larger.
In Purolator Courier Corp., 265 NLRB 659, 661 (1982), the interchange was judged
sufficient to undermine the presumption of a single facility’s appropriateness where 50 percent
of the work force worked within the jurisdiction of other branches on a daily basis and there
existed a greater degree of supervision from supervisors at other terminals than from the
supervisors at their own terminals. Similarly in Dayton Transport Corp., 270 NLRB 1114 (1984),
the Board found the single facility presumption rebutted where in one year there were
approximately 400–425 temporary employee interchanges between terminals among a
workforce of 87 and the temporary employees were directly supervised by the terminal manager
from the point of dispatch. In Cargill, Incorporated, 336 NLRB 1114 (2001), the Board majority
did not view 13–14 instances of interchange among 23 employees over an 8-month period as
demonstrating substantial interchange sufficient to overcome the single-facility presumption.
The parties cite numerous other cases which involve representation cases,
unrepresented facilities and disputed or unclear evidence of transfers or interchange. Given the
unusual factual circumstances of the instant case; hiring hall augmentation of unit composition,
crane and non-crane mechanic interchange and both short term and longer term transfers – all
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in different combinations at the two sites, it should not be surprising existing Board cases are
not squarely in point.
Having considered the quantative analysis in the cases, I must confess I am in
agreement with the counsel for the Charging Party who notes in their reply brief at 8: “It is
difficult to discern from this welter of cases a single numerical standard.” This being so, it is
necessary to conclude the analysis of the continued viability of the PMMC mechanic unit under
the guidance of the normative cases cited, supra, being aware that there is a great evidentiary
burden on the Respondents to establish the PMMC unit is no longer viable. And as noted
earlier, the favored perspective for consideration of all the above is the perspective of the
employees involved at the workplace and not other more abstract, attenuated perspectives.
As noted supra, the work done by the employees in contest was identical under PMMC
and PCMC, although under PCMC the PMMC mechanics did not perform crane M&R but under
PCMC a significant portion of the PMMC former complement assisted PCMC crane mechanics
at both Maersk’s other terminals. Importantly however the PCMC and PMMC unit positions
differed significantly in transfers to other locations and in working with employees who had been
transferred to the Maersk terminal to help handle a heightened workload. Thus, PMMC
mechanics worked at a single worksite and were permanently there. There was no history of
nor expectation of leaving the worksite as a PMMC employee: in essence there was no where
else to go. And noone came to help them - it was just the full timer staff handling the work load
as best they could. Under PCMC work was significantly different.
PCMC hired the PMMC mechanics, as it did all its mechanics, explicitly and in writing in
the hiring process, as travelers who would work where assigned at local terminals without a
home location save as was convenient for the employer. A PMMC mechanic was in essence by
title and certain expectation an Oakland Maersk terminal non-crane mechanic. The PMMC
mechanic now hired by PCMC was not by title or expectation any longer exclusively a non-
crane mechanic nor permanently located at a Maersk terminal. The mechanic might start or
even continue uninterrupted on a long-term cycle as a mechanic who had not worked anywhere
but at the Maersk terminal. But the mechanic could neither count on that fact nor realistically
consider the place of work permanent. Thus several PMMC mechanics in Tacoma were
immediately placed at the Evergreen terminal upon hire by PCMC. Others were transferred from
time to time to assist at the Evergreen terminal. PMMC mechanics hired by PCMC in Oakland
immediately undertook crane work at the three terminals described, supra, albeit doing crane
work of the helper rather than master journeyman variety.
So too PMMC mechanics worked at their trade without the intrusion or assistance of
other than permanent fellow employees. PCMC mechanics, including the PMMC hires, worked
at the Maersk Oakland and Tacoma terminals with help from temporary mechanics of two types:
other PCMC steady mechanics from other locations and ILWU hiring hall or dispatch
mechanics. In Tacoma other PCMC mechanics from Evergreen terminal were sent over when
needed. In Oakland the crane mechanics from three terminals as described supra gave
assistance as necessary and a significant number of hall mechanics were dispatched when
needed.
Additionally, I note the fact that the PCMC mechanic had independent rights to the use
of the dispatch hall for obtaining not just additional shifts with PMMC but mechanic work for any
employer requesting such employees through the hiring hall. Once qualifying hours of
employment allowed its use under the hiring hall rules, these rights were both potentially of
significant worth to PCMC mechanics desirous of additional employment but also emphasized
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the multi-employer, multi-facility aspects of his or her employment. PMMC mechanics had no
such expectation or experience.
These factors of work location and identity of fellow workmates are of no small
significance to the mechanic employee in perceiving his or her employment. Thus as a PCMC
mechanic one could expect and self-identify as a traveler in a roving multi-facility capacity rather
than as a static one facility employee as under PMMC. I find these aspects of PMMC and
PCMC employment important and find they comprise an additional multi-facility consciousness
as applied to the PMMC Tacoma and Oakland Maersk mechanics which support a finding of
accretion which must be added to the evaluation of the extent of transfer and interchange as is
described supra.
Lastly, in this litany of factors to consider, I find that the “lean staffing model” of PCMC is
more than, as the Charging Party argues on brief, “just business as usual”. Rather I find it an
important structural adjustment to deal with the highly unusual and rapidly changing staffing
requirements at individual marine shipping terminals. The Board does not list successor
employer business structural changes as a separate factor to consider in determining accretion
in sucessorship cases. However, the Court in NLRB v. Burns International Security Services,
Inc., 406 U.S. 272 (1972), recognized the relevance of operational changes between the argued
predecessor and successor at 280-281:
It would be a wholly different case if the Board had determined that because
Burns' operational structure and practices differed from those of Wackenhut, the
Lockheed bargaining unit was no longer an appropriate one. [Footnote omitted.]
In Banknote, 84 F. 3d 637, 648 (2d Cir. 1996), enforcing 315 NLRB 1041 (1994), cert. denied,
519 U.S. 1109 (1997), the Circuit Court noted:
[I]f a [successor employer] were to introduce significant evidence that [the
predecessor’s] units had been rendered obsolete by industry shifts or
developments at [the predecessor] , and the Board had applied the presumption
in favor of long-established units in disregard of this evidence, we would not
hesitate to find the application of the presumption irrational.
Thus, I find that the staffing model of PCMC involving a smaller full-time staff of
mechanics augmented periodically as necessary by PCMC mechanic transfers between
terminals and the use of the short term dispatch request process to provide additional hall
mechanic labor in busy times must be viewed as more significant than simply tallying the
number of individuals involved, the sum of hours worked or the rate or pattern of the labor force
augmentation and rate of the transfers and dispatches themselves.
The PMMC mechanic unit structure of a single group of full time “steady” mechanic
employees undertaking their work with the same size staff in busy moments and in slower times
engenders a specific identification and perspective: I help no one off site and no one comes on
site to help me. To the contrary, the PCMC unit structure of a smaller group of full-time
“steady” mechanics handling the slow times and, when the quantum of work increases,
augmenting the staff by the addition of temporary mechanic extra terminal transfers or hiring hall
dispatched temporary or dispatch mechanics or reversing the process and the former PMMC
employees themselves going off to assist other mechanics at other locations, engenders a
completely different perspective. I go to other terminals to help PCMC mechanics and they or
hiring hall hands come to my terminal to help me. This difference in perspective and orientation
is not simply made manifest in a rate of transfer, but is a change in how the work is viewed. The
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one work model is much more dynamic than the other. In my view this is not simply a minor
variation in similar ways of doing business or simply doing business a bit differently and this fact
is particularly true in my judgment from the unit employees’ perspective.
While the latter system of very short duration transfer and hiring hall staffing in response
to short term press of work situations may seem exotic or unusual to most, to those who work
on the docks of the West Coast where ships are essentially without exception unloaded by
longshoremen who are dispatched to a shipper to handle a vessel for but a few days at a time
and then return to the hiring hall to await another employment cycle at a different terminal and
on a different ship, such a system is very familiar. It would be easily recognized by the former
PMMC mechanics for what it is, a rather fundamental change in the employer’s choice in
business model that has permanent and significant consequences to the unit employees whose
loyalties and orientation would shift, in part, from the PMMC model of the single employer who
provides all the work the employee does in a single place, to the larger multi-facilities
perspective of the multi-terminal employer and – to the extent the employee registers for his or
her own dispatch employment, to the far wider perspective of the PMA/ILWU Coastwide unit.42
Viewing the traditional indicia set forth by the Board in the cases discussed above as
controlling of the determination of whether or not the original PMMC mechanics bargaining unit
continued to exist under the PCMC model of operations as it was applied, viewing the extent
and nature of the PCMC transfer and hiring hall policies only to the extent they are reflected in
transfer and interchange rates, it is a closer question whether or not the Board’s decisional law
under such an arithmetic analysis would hold the Respondent Employers have met the heavy
evidentiary burden the cases require to establish an accretion rather than a sucessorship. If the
PMMC unit survives under Board case law, as discussed supra, the Respondent PCMC was a
successor to PMMC and it was obligated to recognize and bargain with the IAM, an obligation it
has at all relevant times declined to undertake.
Given consideration of all the above factors however, on the basis of the record as a
whole, including the substantial significance I place on the change in the former PMMC
mechanic unit members’ perspective when employed by PCMC under its lean staffing model as
described above, as compared to the simple transfer numbers that occurred during the initial
period following PCMC’s commencement of Maersk Oakland and Tacoma operation, and
viewing that totality of circumstances from the perspective of the PMMC unit employee now
working for PCMC, I have no doubt and here explicitly find that the former PMMC mechanics
unit did not survive under PCMC and that under PCMC an accretion took place. Thus I find that
the all employee PCMC unit which is a part of the far larger PMA/ILWU Coastwide unit was the
only existing PCMC M&R mechanics unit on and after March 31, 2005. They were all movile
employees oriented to the larger multi-facility perspective. Given this new orientation the former
PMMC unit dissolved and did not survive.
This conclusion having been reached in conjunction with my earlier findings, it further
follows that PCMC at no time had a bargaining obligation with the IAM respecting the PMMC
unit or any other unit of PCMC employees. Further, given the subsumption of the PMMC
employees into the far larger unit, it was arithmetically impossible for the former PMMC
mechanics hired by PCMC to adversely effect the majority support for the ILWU in the far larger

42 The Respondent Union adduced testimony from ILWU officials that use of the hiring hall
changed employee perspective from that of sole focus on the single employer worksite and the
single employer to the larger perspective of multiple potential worksites and employers as well
as focusing on the joint PMA ILWU hiring hall itself as a source of industry employment.
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unit. Accordingly it was not improper for PCMC in such circumstances to recognize the ILWU
as the employees’ representative as part of the larger unit and to apply the terms of the
PMA/ILWU Coastwide agreement to them, including the union-security provisions of that
contract. It thus follows further that the allegations of the complaint respecting the PCMC’s
bargaining obligations to the IAM and its conduct in dealing with the ILWU are without merit and
shall be dismissed. These findings have direct consequence to the complaint allegations
against the ILWU which are discussed below.
4. Contractual Union Representative Access and Bulletin Board Use Unilateral Change
Allegations
a. The Tacoma Hursey Access Denial Allegation
As described supra, on February 15, 2005, the IAM’s Directing Business Representative
Don Hursey, credibly testified he was refused entrance to the PMMC work area at the Tacoma
Maersk terminal for what he testified was the first time in a substantial period of regular
visitations of unit staff. Having telephoned PMMC for an explanation he was initially told he was
not allowed into the facility because he was a ”disruption.” Later that day Hursey was
telephoned by PMMC vice president Terry Murphy and told that his exclusion was “some type of
misunderstanding” but was asked to and he agreed to try to contact Terry Murphy ahead of time
before he came down to the facility.
Mr. Murphy wrote Hursey a letter two days later with the following language:
On Tuesday, 2/15/05, terminal security at APM Terminals in Tacoma denied you
access to the PMMC work site portion of the terminal.
I called you at your office shortly after hearing of the situation and asked that you
simply call the PMMC manager in advance of your visit, stating the time and
purpose of your visit, which you agreed you would do for future visits to the
worksite. I understood you will come at employee lunch time to hold eliminate
any disruption to operations.
With all that is currently happening, it is imperative that disruption in meeting our
customer’s needs be minimized as much as possible.
Hursey responded in turn a few days later:
I received your letter today dated February 17, 2005, wherein you have asked
me to simply advise the manager of my visit in advance and to list the nature of
my visit.
When you contacted me shortly after the incident on February 15th, it seemed
reasonable to notify you in the future of my intent to visit my membership. This is
not uncommon in many of my contracts.
After reviewing the current PMMC contract, I have no requirements to notify you
in advance or to advise you of the intent of my visit. I still do not have a problem
being courteous in letting you know of my intent to visit your facility, but in no way
am I giving up my rights per the labor agreement nor am I limiting my access to
anything other than the established past practice that has been recognized by
both parties today.
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Let this serve as notice that I do not intend to change my rights of visitation.
On March 11, 2005, Hursey again attempted to gain entrance to the Maersk facility to
visit the PMMC unit members in the late morning and was denied entrance by a guard who told
him he was not allowed in. Hursey called from the entrance and spoke to PMMC supervisor,
Lyle Kagey to whom he complained he had been denied entrance. Kagey told him in Hursey’s
recollection: “He said it was just orders. He told me that -– first he told me that I didn’t give them
advance notice. Then he said that was his orders.”
The General Counsel argues that the IAM-PMMC contract in effect during these events
provided the IAM’s agents such as Hursey access to the unit’s workplace. That right was
wrongfully limited, argues the General Counsel, first by the February 11, 2005 instruction of
Kagey that advance notice of any visit to the jobsite must be obtained and second by Murphy’s
letter of February 17, 2005, which seemingly limited Hursey’s visits to the lunch hour. Further
the General Counsel argues that in addition to the verbal limits, the fact that access was actually
denied as described above, clearly invalidates the contract access provision which was in so
doing wrongfully unilaterally changed. Since jobsite visitation is a mandatory subject of
bargaining, argues the government, the unilateral change was a violation of Section 8(a)(5) of
the Act.
The Respondent PMMC argues that the entire series of events was simply a mistake or,
in the words of the Respondent Employer’s brief at 69, “kafuffle.” PMMC makes several more
specific arguments. First that, at the very most, what is involved in this aspect of the case is a
contract dispute respecting the application of the contract visitation language’s “no interruption
of the firm’s working schedule” clause. PMMC argues most strongly however that no violation
could possibly lie respecting the events in question because – other than on the first occasion
on February 11, for which PMMC apologized to Hursey as a “misunderstanding” - there is
simply no doubt that Mr. Hursey specifically agreed to a request that he call ahead before
visiting the site and that he did not do so on March 11. To the extent that the General Counsel
claims that the requests of Hursey to limit his visits were improper, PMMC argues first that
requests are not demands and, critically, agreement was reached respecting the visiting
procedures which were thereafter followed. Accordingly, Respondent Employers argue, no
unilateral changes ever occurred.
Considering the positions and arguments of the parties, I conclude as follows. First, I do
not accept the General Counsel’s argument that PMMC on February 11, 2005 unilaterally
established a requirement that the IAM call in advance of an agent visit to the jobsite. The
events of that day were apologized for by Murphy and do not on their own support a violation of
Section 8(a)(5) of the Act. Respecting the later events, I agree with the Respondents that Mr.
Hursey’s apparent acquiescence to the request that he call the site prior to a visit constitutes a
waiver to the access violations alleged. While it may well be that the IAM did not have to agree
to advance notice of Hursey’s visits, once having agreed to do so as described above,
Mr. Hursey’s exclusion on March 11, 2005, which he did not pursue further, does not rise to the
level of a unilateral change in the contract and a violation of Section 8(a)(5) of the Act.
Accordingly, I shall dismiss this allegation of the complaint.43

43 This being so I do not find it necessary to resolve the inconsistent testimony of Messrs.
Hursey and Wolff respecting whether or not Hursey returned to the workplace after March 11.
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b. The Oakland Bulletin Board Allegation
The bulletin board events are quite simple and undisputed. On March 10, 2005, at the
Oakland Maersk facility, PMMC caused the removal of copies of the IAM’s demand to bargain
sent to PCMC and related unfair labor practice charges. Heretofore the IAM had regularly used
the space involved for the posting of IAM material with the consistent acquiescence of PMMC.
The General Counsel notes the earlier quoted contract language giving the IAM a right
to the posting space it had historically received. Counsel for the General Counsel argues the
Respondent PMMC’s unilateral limitation of contractually established rights constitutes a
unilateral restriction and violation of Section 8(a)(5) of the Act citing ATC/Vancom of California,
338 NLRB 1166, 1169 (2003) and Formosa Plastics Corp., Louisiana, 320 NLRB 631 (1996).
The Respondent Employers argument adopts the de minimus argument earlier proffered
respecting the access issue above. They argue further that to show a contract provision has
been unlawfully modified, more needs be demonstrated than a simple difference of opinion over
contract interpretation or application citing Bath Iron Works, 345 NLRB 499 (2005) and NCR
Corp. 271 NLRB 212 (1984). And such a simple disagreement of interpretation, the
Respondents argue, is precisely what occurred here.
Under normal settings and circumstances, the arguments of the Respondent Employers
would be correct and the allegation properly dismissed as a contract dispute better handled
under the contract. Several factors lead me to a different conclusion here however. First, the
contract, indeed the bargaining relationship in PMMC’s view at that time had but a few weeks
life remaining. The normal cadences of contract dispute resolution are defeated in such a
situation. Second, the categorical rejection by the Respondent PMMC of any IAM posting
relevant to the near future employment and representation of the PMMC bargaining unit
employees by PCMC, took place at a time when PMMC had not disclosed its single-employer
status with PCMC and when representational rights and obligations were not definitively
established. Essentially the Respondent PMMC’s course of conduct here rises to the level of a
plan to further the single employer’s plan that the ILWU represent the unit on and after
March 31, 2005. Thus PMMC took steps to limit as much as possible actions by the IAM which
might be disruptive of ILWU representation. And PMMC’s conduct occurred while ILWU
activities were being allowed at the PMMC worksite. When the consideration of the alleged
wrongful conduct is informed by the motive revealed and consideration of the entire context of
events, I do not view the denial of posting rights to be a matter of contract interpretation, but
rather a repudiation or at least change in the terms of the agreement as alleged by the General
Counsel. Therefore I find that, in so doing, the Respondent PMMC violated Section 8(a)(5) and
(1) of the Act as alleged in the complaint. Accordingly I sustain the allegation.
5. The Allegations Against the Respondent ILWU
The complaints allege the Respondent ILWU, in accepting improper recognition from
PCMC as the representative of the mechanics unit employees at a time the IAM-represented
the former PMMC unit, and in enforcing the union-security clause of the coastwide ILWU
contract as to these employees, violated Section 8(b)(1)(A) and (2) of the Act. The theory of a
violation is predicated on the governments contention, the basis for other allegations in the
consolidated case, that the IAM at material times remained the representative of the former
PMMC unit employees.
I have found above that the IAM did not represent any of PCMC’s mechanic employees
in Tacoma and Oakland. Based on the same facts and analysis supporting those findings, I
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also made the further finding supra that the employees at issue accreted into the PMA/ILWU
Coastwide bargaining unit and were at all times material covered by the PMA/ILWU Coastwide
contract and its union-security provisions.
Given these findings and conclusions, I further find that the recognition of the ILWU was
proper and that accordingly the ILWU did not violate the Act as alleged in the complaints in
either accepting recognition or in applying the contract to the employees in question.
Accordingly those complaint allegations shall be dismissed.
6. Additional Allegations
The General Counsel’s complaint contains allegations regarding successors to PCMC in
order to maintain legal continuity to the current time of any bargaining obligation that might be
directed to PCMC to recognize and bargain with the IAM concerning a unit of its Tacoma and
Oakland Maersk based mechanics. I have found no obligation by PMMC to recognize or
bargain with the IAM as the representative of these employees. It is therefore unnecessary to
address the continuity allegations regarding such a bargaining obligation.
7. Summary and Conclusions
As set forth in detail above, I have considered the various complaint allegations of the
General Counsel’s consolidated complaints. The complaint allegations may be roughly
categorized as follows.
The General Counsel contended that PMMC violated Section 8(a)(1) and (5) of the Act
in various particulars respecting its bargaining relationship with the Machinists concerning a unit
of M&R mechanics in Tacoma and Oakland and its withdrawal of recognition of the Machinists
as the representative of that unit. I have found that the Respondent Employers did not violate
the Act as alleged in these particulars and I have dismissed these allegations of the complaint
save for the two access allegations which are discussed immediately below
The General Counsel contended in two separate complaint allegations that in the final
month of its employment of its M&R mechanics in Tacoma and Oakland, PMMC improperly
restricted contractually-provided Machinist Union agent access to the jobsites and limited the
unit employees’ contractual rights to use a bulletin board on site for union business. This
conduct was alleged by the government to have been done without bargaining with the
Machinists or obtaining their consent and therefore violates Section 8(a)(1) and (5) of the Act.
I dismissed one of these allegations concerning union agent access and sustained the other
concerning bulletin board access. The one non-meritorious allegation shall be dismissed. The
remaining allegation is sustained.
The General Counsel contended that PCMC, the Respondent Employers and their
successors violated Section 8(a)(1) and (5) of the Act by failing and refusing to recognize the
Machinists as the representative of a unit of M&R mechanics in Tacoma and Oakland and by
making changes in that units terms and conditions of employment without bargaining with the
Machinists or obtaining their permission to do so. Further the complaint alleges the Respondent
Employers violated Section 8(a)(1), (2) and (5) of the Act by recognizing the ILWU as the
representative of this group of employees through wrongful inclusion in a larger ILWU
represented bargaining unit and applying the existing contract covering that larger unit to these
employees, including the union-security provisions of that contract.
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I found above that Respondent PCMC, and through them the Respondent Employers
and the successors to those parties, did not at any time have a bargaining obligation with the
Machinists respecting the unit described. Rather I found that the unit had been accreted into
the larger ILWU Coastwide unit and that the Respondent PCMC, and through them the
Respondent Employers and the successors to those parties, properly recognized the ILWU as
the employees’ representative as part of the coastwide unit covered by the PMA/ILWU
Coastwide contract and properly applied the unit security provisions of that contract to the
employees. I therefore dismissed these allegations of the complaint.
The General Counsel alleged that the ILWU, in accepting recognition from PCMC as the
representative of the mechanics unit employees at a time the IAM represented the former
PMMC unit and in enforcing the union-security clause of the coastwide ILWU contract as to
these employees violated Section 8(b)(1)(A) and (2) of the Act. Consistent with my findings
respecting the Respondent PCMC immediately above, I have found PCMC properly recognized
the ILWU as the employees’ representative as part of the coastwide unit covered by the
PMA/ILWU Coastwide contract and properly applied the unit security provisions of that contract
to the employees. Symmetrically, I further found it was appropriate for the ILWU to accept
PCMC’s recognition of it as representative of these employees as part of the larger unit and to
apply the union-security provisions of the contract covering that unit to these employees.
I therefore dismissed these allegations of the complaint.
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. The Respondent Employers, and each of them, have been at all times material,
employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party and the Respondent ILWU are, and each of them is, and have
been at all relevant times, labor organizations within the meaning of Section 2(5) of the Act.
3. The Respondent PMMC violated Section 8(a)(1) and (5) of the Act by removing
copies of IAM material posted on a contractually-provided bulletin board at the worksite at the
Maersk terminal at the Port of Oakland in Oakland, California which board had been provided to
the IAM for the union’s display of information for represented employees without bargaining with
the Machinists concerning the removal or obtaining their permission to do so.
4. The unfair labor practice described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
5. The Respondents did not otherwise violate the Act as alleged in the complaints and all
complaint allegations not sustained shall be dismissed.
REMEDY
Having found that the Respondent PMMC violated the Act as set forth above, I shall
order that it cease and desist there from. Normally a Board remedy for violations of the Act
provides for the posting of a remedial notice at the workplace where the violation occurred. In
the instant case the Respondent PMMC no longer represents employees at the Tacoma and
Oakland locations involved and the employees employed there are represented by a separate
labor organization. In such circumstances it is appropriate to have the Respondent PMMC mail
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copies of the notice to the last known address of the unit employees employed at the time of the
violation.
Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order.44
ORDER
The Respondent PMMC, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
a. Removing copies of IAM material posted on a contractually provided bulletin
board at the Oakland, California worksite at the Maersk terminal at the Port of
Oakland for the information of IAM represented employees without bargaining
with the Machinists concerning the removal or obtaining their permission to do
so.
b. In any like or related manner restraining or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
a. Within 14 days after service by the Region, the Respondent PMMC shall post
copies of the attached notice marked “Appendix.”45 Copies of the notice, on
forms provided by the Regional Director for Region 32, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former
employees employed by the Respondent PMMC at the Maersk Terminal facilities
at the Ports of Oakland and Tacoma at the time of PMMC’s discontinuance of
work at those sites at any time since March 30, 2005.
b. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

44 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
45 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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The allegations of the complaint not sustained herein shall be and they hereby are
dismissed.
Dated, Washington, D.C., February 12, 2009.
____________________
Clifford H. Anderson
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
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 with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
After a trial at which we appeared, argued and presented evidence, the National Labor
Relations Board has found that we violated the National Labor Relations Act and has directed
us to mail this notice to our former employees who were represented by the International
Association of Machinists during their employment with PMMC at the Maersk terminals in the
Ports of Oakland and Tacoma until PMMC ceased operations at those locations in March 2005.
Accordingly, we give our former employees the following assurances.
WE WILL NOT remove materials from any union bulletin board at the jobsite provided to the
International Association of Machinists under the terms of a collective bargaining agreement
with us at a time when they represented a unit of our employees without bargaining with the
union concerning the removal of the material or obtaining the union’s permission to do so.
WE WILL NOT In any like or related manner restrain or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the National Labor Relations Act
PMMC/PACIFIC MARINE MAINTENANCE
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N
Oakland, California 94612-5211
Hours: 8:30 a.m. to 5 p.m.
510-637-3300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 510-637-3270.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
PCMC/PACIFIC CRANE MAINTENANCE COMPANY, INC.
and Case 32-CA-21925
MACHINISTS DISTRICT LODGE 190, LOCAL LODGE
1546 and MACHINISTS DISTRICT LODGE 160, a/w
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
PACIFIC MARINE MAINTENANCE CO., LLC
and Case 32-CA-21974
(formerly Case 19-CA-29645)
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, DISTRICT LODGE 160, a/w
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
PACIFIC MARINE MAINTENANCE CO., LLC
and/or PACIFIC CRANE MAINTENANCE
COMPANY, INC.
and Case 32-CA-21977
(formerly Case 19-CA-29692)
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, DISTRICT LODGE 160,
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
PCMC/PACIFIC CRANE MAINTENANCE COMPANY, LP
and Case 32-CA-23613
MACHINISTS DISTRICT LODGE 190, LOCAL LODGE
1546 and MACHINISTS DISTRICT LODGE 160, a/w
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION (PACIFIC CRANE
MAINTENANCE COMPANY, INC.)
and Case 32-CB-5932
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO, DISTRICT
LODGE 190, LOCAL LODGE 1546
Table of Contents
Statement of the Case ...................................................................................................... 2
Findings of Fact ................................................................................................................ 5
I. Jurisdiction............................................................................................................. 5
II. Labor Organizations.............................................................................................. 5
III. The Alleged Unfair Labor Practices...................................................................... 6
A. Grossly Simplified Initial Statement of Facts, Allegations, Issues
and Positions ............................................................................................... 6
1. Abbreviated Facts ................................................................................... 6
2. Allegations of the Complaints in Contention ............................................. 9
3. Issues and the Parties’ Positions ............................................................ 10
B. Background .................................................................................................... 12
1. The West Coast Longshore Industry ....................................................... 12
2. The Nature and Organization of Terminal Maintenance and Repair Work15
3. The History of the Respondent Employers .............................................. 17
a. The Pacific Crane Maintenance Company (PCMC).......................... 17
b. The Pacific Marine Maintenance Company (PMMC) ........................ 18
C. The Events .................................................................................................... 19
D. Analysis and Conclusions.............................................................................. 27
1. The Various Theories of Violations of the Act.......................................... 27
a. What is not alleged or in issue.......................................................... 27
b. The Principal Bargaining Theories ................................................... 28
c. The Separate Contract Workplace Access Denial Allegations.......... 29
d. The Allegations Against the Respondent ILWU................................ 29
2. The General Counsel’s Theory that the Respondent Employers violated
Section 8(a)(1) and (5) of the Act in terminating PMMC’s unit
employees on or about March 30, 2005, by failing to bargain with the
IAM respecting that unit of employees, and by withdrawing recognition
from the IAM as the representative of those employees........................ 29
a. Initial Consideration of PMMC’s Bargaining Obligation Absent
Single Employer Status.................................................................. 31
b. Does the Fact that PMMC and PCMC were single employers at
all relevant times change the analysis immediately above that
PMMC had no obligation to offer to bargain with the IAM before
terminating its employees?.............................................................. 34
1) An Important Narrowing of the Issue and Argument.................. 34
2) The Single Employer Respondent Employers’ Obligation, if any,
to Bargain about PMMC’s Decision to Bid on the Maersk
Contract and Decision to Terminate the PMMC unit
employees and Withdraw Recognition of the IAM..................... 35
c. Summary and Conclusion respecting the General Counsel’s
Theory that the Respondent Employers were Obligated to Bargain
about the Decisions to Bid on the Maersk Contract and the
Decision to Terminate the PMMC unit employees and end its
relationship with the IAM ................................................................. 39
3. The General Counsel’s Successorship Theory under NLRB v. Burns
International Security Services, Inc., 406 U.S. 272 (1972) .................... 40
a. The Basic Law of Sucessorship and Accretion and the General
Positions of the Parties.................................................................... 40
b. The PMMC and PCMC Operations at the Maersk Oakland and
Tacoma Terminals ......................................................................... 44
1) Basics ....................................................................................... 44
2) Comparison of Operations ........................................................ 45
3) PCMC’s integration of operations, centralized control of
management and labor relations, geographic proximity,
similarity of terms and conditions of employment, similarity of
skills and functions, physical contact among employees,
collective bargaining history, degree of separate daily
supervision, and degree of employee interchange.................... 46
(a) An Initial Matter – When in time are the listed
characteristics to be measured and considered?............... 46
(b) Common Control of Labor Relations ................................. 47
(c) Common Day-to-Day Supervision ..................................... 48
(d) Interchange and Transfer.................................................. 49
i. General Description49
ii. Quantification of PCMC Mechanic Transfer and
Interchange at Relevant Times 51
a) Oakland 52
b) Tacoma 52
c. Analysis and Conclusions Respecting Accretion .............................. 53
1) Preliminary Matters ................................................................... 53
2) The Viability of the PMMC Mechanics Unit During PCMC’s
Operations................................................................................ 57
4. Contractual Union Representative Access and Bulletin Board Use
Unilateral Change Allegations ................................................................ 63
a. The Tacoma Hursey Access Denial Allegation................................. 63
b. The Oakland Bulletin Board Allegation ............................................ 65
5. The Allegations Against the Respondent ILWU....................................... 65
ORDER ............................................................................................................................ 68
APPENDIX ....................................................................................................................... 70