Opinion
No. 09-CV-05286 RJB.
June 8, 2009
Lawrence Schwerin, WSBA # 4360, Robert H. Lavitt, WSBA # 27758, Schwerin Campbell Barnard Iglitzin Lavitt, LLP, Seattle, WA.
Richard F. Liebman, WSBA #36019, Barron Liebman LLP, Portland, OR.
Clemens H. Barnes, WSBA # 4905, April Upchurch Olsen, WSBA # 31910, Graham Dunn, PC, Seattle, WA.
STIPULATED ORDER GRANTING PACIFIC MARITIME ASSOCIATION'S MOTION FOR CONFIRMATION AND ENFORCEMENT OF ARBITRATION AWARD
The parties to the above entitled action, by and through the undersigned counsel, hereby stipulate as follows:
The Coast Arbitrator's award (C-06-2009), a copy of which is attached hereto, is hereby confirmed and enforced. In light of the parties' Stipulation, Pacific Maritime Association's pending Motion for Confirmation and Enforcement of Arbitration Award [Dkt #2] is withdrawn.
IT IS SO ORDERED.
Exhibit A
09-CV-05286-RPT
IN ARBITRATION PROCEEDINGS PURSUANT TO THE PACIFIC COAST LONGSHORE CONTRACT DOCUMENT BETWEEN THE PARTIES INTERNATIONAL LONGSHORE AND ] c-06-2009 WAREHOUSE UNION, ] ] OPINION AND DECISION Union, ] ] of and ] ] JOHN KAGEL PACIFIC MARITIME ASSOCIATION, ] Coast Arbitrator ] Employers. ] May 13, 2009 ] ] Palo Alto, California Re: Appeal from PSAA-13-09, work stoppage ]APPEARANCES:
For the Union: Leal Sundet, Ray Ortiz, Coast Committee Members, ILWU
For the Employers: Rich Marzano, Director, Contract Administration and Arbitration, PMA
ISSUE:
Whether PSAA 13-09 should be affirmed or vacated.BACKGROUND:
A claim by the Employers that there was a slowdown on the Horizon TACOMA on the night shift on April 22, 2009 was denied by the Area Arbitrator in his interim decision:
"A key ingredient of C-05-72 was the union did not contest the figures produced by the employer. In this dispute, involving the second shift of 4/22/09 on the Horizon Tacoma, the union successfully disputed the validity of the employer figures." (Jt. Ex. 2B, PSAA-11-09)
The Relief Area Arbitrator, hearing the formal appeal from the Area Arbitrator's interim ruling in his absence by agreement of the Parties, found to the contrary, namely that production "was not at normal levels." He found that a number of factors accounted for the lowered production which are discussed below. He found no work stoppage was occurring.
SECTION 17.2611(b):
This is the first Coast arbitration pursuant to the expedited procedures of Section 17.2611(b), agreed to by the Parties in 2008 negotiations. With respect to such hearing before the Coast Arbitrator, the Parties agreed that neither party will request the Arbitrator to go to the site of the dispute unless there is something to see there that cannot otherwise be described. Otherwise, such hearings will be wherever the Coast Arbitrator happens to be. (Tr. 7)
The Parties further agreed that the procedures under Section 17.2611(b) include presenting new evidence at the Coast level that was otherwise unavailable before the Area Arbitrator. (Tr. 8)
DISCUSSION:
C-5-72:
Coast Award C-5-72, as will be quoted below, held that a proven concerted slowdown of production by Union members was an impermissible work stoppage under the PCLCD.
Production Figures:
In C-5-72 evidence through production figures were uncontested established that a slowdown that violated the PCLCD had occurred. Production figures alone, however, do not necessarily establish such a slowdown but may give an indication that one is occurring. In this case the Employer changed its manning from two teams of a PD and two extras (Tr. 27), each team working four hours, to one PD and three extras for the full shift. One Clerk Supervisor who would man the gate was late. There was no decease in Clerk orders. (Tr. 46)
The production figures from prior sailings of the TACOMA compared to the shift in question as compiled from Clarks' logs (Tr. 18), showed marked decreases as the Relief Area Arbitrator properly held. In addition, the TACOMA's sailing was delayed substantially from when the vessel normally departed. (Tr. 70) These facts raised a sufficient issue to inquire into their cause. If the evidence precluded any basis to account for the decreases and delayed sailing except deliberate action on the part of the workforce then a slowdown in violation of the PCLCD is a required to be found.
Manning:
The record does not disclose why the prior manning required but four hours' work by three Longshoremen with at least one extra on board. (Tr. 113, 115) In this case, instead of six total for the shift the manning was four. The Union maintains such manning violates local agreements but has reserved that issue for the normal grievance procedure. (Tr. 133-134) And, according to the record at the Coast, contrary to that found by the Relief Area Arbitrator, the Employer was in compliance with the Agreement in meeting with the Union to advise of the changed manning. (Jt. Ex. 1A, Section 15.11)
No One on Board:
According to the Employer, APM, with four-person manning, the PD and an extra would remain on the dock and two extras would be on board the vessel to deal with grids and such other requirements there without standby time. (Tr. 65) On the shift in question, and during the operations on the TACOMA, no extras were stationed on board. Rather, each time a Longshoreman was needed on board, for example, to correct grids, two would ascend from the dock, perform the operations and return to the dock. In the meantime, all others would stand by. This form of work materially contributed to the time necessary to load the vessel over that which would be required if men were on board throughout that process. (Tr. 119)
However, according to the Union, that all the gang remained on the dock except when required on board, was in accord with what the Union was advised by the Employer that it wanted to have happen, using the K Line as an example. (Tr. 117) K Line does not have the same kind of operation as Horizon. In addition, although the Employer states it was told that Union officials had advised the gang to remain on the dock (Tr. 37), the Employer neither ordered any of its members to stay on board nor did it seek to contact the Union concerning that issue. (Tr. 118) According to the Employer, in essence, it chose not to escalate what it viewed the situation to be to not further delay the operation. (Tr. 62, Jt. Ex. 2C, p. 78) Zip Ties:
Zip ties used by truckers have routinely been removed by Longshoremen except in this case so that containers had to be rerouted to the yard to have them removed. (Tr. 34-35) At the Relief Area Arbitrator hearing the Union maintained that a safety issue had been raised concerning zip tie removal in December 2007 (Tr. 77, Jt. Ex. 2C, pps. 68-69) but the practice continued thereafter to remove them under the hook (Tr. 37) until this instance, contributing to the time delay involved in completing the operation.
Unverified Containers:
The Union maintains that the late arrival of the Clerk Supervisor prevented a yard inventory at the beginning of the shift which contributed to three times the ordinary number of unverified or lost containers delaying the operation where Drivers maintained they could not find their containers. (Tr. 37, 38). The Employer established that the late-arriving Clerk, who was on the gate, had no effect on yard operations. The operation was set up as normal and the increase in claimed lost containers was not otherwise explained.
Slowdown Established:
In this case based on the following a slowdown was shown to have occurred. That production should have been normal was shown by:
1. Production was significantly less than normal and the normal sailing time of the ship was significantly delayed.
2. Manning was increased from three to four for any given period of the shift.
3. No increase in cargo volume. (Tr. 70)
4. All other factors within the Employer's control were normal. (Tr. 27)
Under such circumstances the decline in production and delay in sailing as noted by the Coast Arbitrator at the Coast hearing established a prima facie case of a slowdown (Tr. 142), requiring the Union to establish that factors beyond the control of the workforce caused the diminished production and sailing delay.
To the extent that the Union sought to explain the decline in production and delay in sailing to factors other than a deliberate slowdown it failed to do so:
1. One, if not two, extras were not stationed on board the vessel to handle work required there but went up and back causing major delays when it was obvious that not having men on board would do so.
2. Why there were significantly increased numbers of "lost" and "unverified" containers could not be accounted for. Although the Union had a different view (Tr. 100), it is accepted based on the record that the late-arriving gate Clerk did not affect that issue. (Tr. 49, Jt. Ex. 2C, pps. 38, 91, 101-102)
3. Delays due to zip ties were not required when they normally were dealt with under the hook rather than taking containers into the yard, removing the ties and then returning the containers to the hook.
4. Other factors such as welding a railing and somewhat longer delashing times on a vessel which uses grids (Tr. 53, 60, 76, Jt. Ex. 2C, pps. 39-40) did not account for the significant delays.Partial Bench Decision:
Based on what was presented at the Coast hearing the Coast Arbitrator ordered that extras be on board the vessel throughout the operation (Tr. 140) and that zip ties be dealt with under the hook as in the past. (Tr. 140-141)
The Coast Arbitrator also noted that with respect to the delay in operations that some responsibility lay with the Employer with respect to the above issues. (Tr. 140) It could have ordered extras be stationed on the vessel but chose not to. Alternatively, it could have discussed the matter with Union officials to accomplish the same thing. If the latter resisted, the Employer was not required to endlessly fire and reorder extras but would have avoided the Union's contention that all the gang could be on the dock because of the K Line analogy that the Union offered in its defense. The Employer cannot remain passive as it did here to reasonably seek to mitigate the effects of the Union's members' activities, or lack of them.
The Relief Area Arbitrator's views that the Area Arbitrator observed something that based on his experience showed that there was no slowdown was not reflected in the Area Arbitrator's interim decision which dealt only with production records. The Relief Area Arbitrator's views that the manning change would necessarily involve disruptions was not supported in the record at the Coast level even if it could be ascertained from the record of the initial appeal which did not seem to support that conclusion. There was no showing by the Union as it suggested there that the decline in production was contrived by the Employer to blame the Union for a slowdown in violation of the PCLCD.
Slowdown Violates PCLCD:
In C-5-72 the Coast Arbitrator wrote:
"A slowdown seeks to achieve the same things as a strike, i.e., coercion by economic force. The intent of Section 11.1 [is] to prevent such coercion during the life of the Agreement. That a slowdown is within the prohibitions of Section 11.1 is also shown by Sections 11.3, 15.1, 17.81 and 18.1. The intent of Section 11.1 is to prohibit work slowdowns as occurred in this case."
The next paragraph of that decision, paraphrased to fit this case, is:
"And it is clear that the slowdown was being used for the purpose of seeking to nullify a contractual right of the Employer, namely [the manning ordered by the Employer.]"
Later in that decision the Coast Arbitrator wrote:
"Section 11.2 specifically requires the Union to secure observance of the Agreement. And when individual Longshoremen violate the Agreement then it is the Union's duty and responsibility to secure observance of the Agreement. In this case Longshoremen who engaged in a slowdown such as occurred in this case violated Section 11.1 of the Agreement. The Union under Section 11.2 must act to stop and prevent such violations." (Jt. Ex. 2N, Er. Ex. 8)
Sections 11.1 and 11.2 are the same now as they were in 1972. What the Coast Arbitrator wrote 37 years ago applies equally today. However the manning change was viewed, its legitimacy, given no safety or onerous work issues being established, is required to be tested through the grievance procedure, not through attempted economic coercion in violation of the PCLCD. (Section 11.31)
DECISION;
1. Based on the entire record, including that at the Coast hearing, PSAA-13-09 is vacated.
2. It is found that there was a slowdown in violation of Section 11.1 by Longshoremen employed with respect to the Horizon TACOMA on the second shift on April 22, 2008; that the Employer had the duty to request the Union to stop the slowdown and that the Union had the duty and responsibility to stop the slowdown.